Online Safety Act 2023

Liability of providers etc

195Providers that are not legal persons

(1)In this section a “relevant entity” means an entity that—

(a)is the provider of a regulated service, and

(b)is not a legal person under the law under which it is formed.

(2)If a penalty notice is given to a relevant entity (in the name of the entity), the penalty must be paid out of the entity’s funds.

(3)If a notice is given by OFCOM to a relevant entity (in the name of the entity) under any provision of this Act, the notice continues to have effect despite a change in the membership of the entity.

(4)If a penalty notice is given jointly to two or more officers or members of a relevant entity, those individuals are jointly and severally liable to pay the penalty under it.

(5)In subsection (4) the reference to officers or members of a relevant entity includes a reference to employees of such an entity or any other individuals associated with such an entity.

(6)In this section a “penalty notice” means—

(a)a confirmation decision that imposes a penalty (see sections 132(5)(b) and 137),

(b)a penalty notice under section 139,

(c)a penalty notice under section 140(5), or

(d)a penalty notice under section 141(6).

196Individuals providing regulated services: liability

(1)This section applies in relation to two or more individuals who together are the provider of a regulated service (see section 226(3), (5), (7), (9) and (11)).

(2)Any duty or requirement imposed on such a provider under any of the provisions specified in subsection (3), or any liability of such a provider to pay a fee under section 84 or Schedule 10, is to be taken to be imposed on, or to be a liability of, all the individuals jointly and severally.

(3)The provisions are—

(a)Chapter 2 of Part 3 (providers of user-to-user services: duties of care);

(b)Chapter 3 of Part 3 (providers of search services: duties of care);

(c)Chapter 4 of Part 3 (children’s access assessments);

(d)Chapter 5 of Part 3 (duties about fraudulent advertising);

(e)Chapter 1 of Part 4 (user identity verification);

(f)Chapter 2 of Part 4 (reporting CSEA content);

(g)Chapter 3 of Part 4 (terms of service: transparency, accountability and freedom of expression);

(h)Chapter 4 of Part 4 (deceased child users);

(i)Chapter 5 of Part 4 (transparency reporting);

(j)section 81 (provider pornographic content);

(k)section 83 (duty to notify OFCOM).

(4)A notice in respect of a matter that may or must be given by OFCOM under any provision of this Act may be given—

(a)to only one of the individuals,

(b)jointly to two or more of them, or

(c)jointly to all of them,

but a separate notice may not be given to each of the individuals in respect of the matter.

(5)If a penalty notice is given jointly to two or more individuals, those individuals are jointly and severally liable to pay the penalty under it.

(6)In subsection (5) a “penalty notice” means—

(a)a confirmation decision that imposes a penalty (see sections 132(5)(b) and 137),

(b)a penalty notice under section 139,

(c)a penalty notice under section 140(5), or

(d)a penalty notice under section 141(6).

197Liability of parent entities etc

Schedule 15 contains provision about—

(a)the giving of joint provisional notices of contravention to parent entities etc,

(b)the liability of parent entities for failures by subsidiary entities,

(c)the liability of subsidiary entities for failures by parent entities,

(d)the liability of fellow subsidiary entities for failures by subsidiary entities, and

(e)the liability of controlling individuals for failures by entities.

198Former providers of regulated services

(1)A power conferred by Chapter 6 of Part 7 (enforcement powers) to give a notice to a provider of a regulated service is to be read as including power to give a notice to a person who was, at the relevant time, a provider of such a service but who has ceased to be a provider of such a service (and that Chapter and Schedules 13 and 15 are to be read accordingly).

(2)“The relevant time” means—

(a)the time of the failure to which the notice relates, or

(b)in the case of a notice which relates to the requirement in section 105(1) to co-operate with an investigation, the time of the failure or possible failure to which the investigation relates.