Communications Act 2003 s.392 – Penalties imposed by OFCOM

(1)It shall be the duty of OFCOM to prepare and publish a statement containing the guidelines they propose to follow in determining the amount of penalties imposed by them under provisions contained in this Act or any other enactment apart from the Competition Act 1998 (c. 41) [^F1274and Part 4 of the Enterprise Act 2002^F1274] .

(2)OFCOM may from time to time revise that statement as they think fit.

(3)Where OFCOM make or revise their statement under this section, they must publish the statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(4)Before publishing a statement or revised statement under this section OFCOM must consult both—

(a)the Secretary of State, and

(b)such other persons as they consider appropriate,

about the guidelines they are proposing to include in the statement.

(5)Before determining how to publish a statement or revised statement under this section OFCOM must consult the Secretary of State.

(6)It shall be the duty of OFCOM, in determining the amount of any penalty to be imposed by them under this Act or any other enactment (apart from the Competition Act 1998 (c. 41) [^F1275and Part 4 of the Enterprise Act 2002^F1275] ) to have regard to the guidelines contained in the statement for the time being in force under this section.

(7)References in this section to penalties imposed by OFCOM under provisions contained in this Act include references to penalties which the BBC is liable to pay to OFCOM by virtue of section 198(3).

Definitions used in section 392 3

OFCOM: “OFCOM” means the Office of Communications;
Defined in s.405(1) · see it in the full Act
enactment: “enactment” includes any enactment comprised in an Act of the Scottish Parliament or in any Northern Ireland legislation;
Defined in s.405(1) · see it in the full Act
the BBC: “the BBC” means the British Broadcasting Corporation;
Defined in s.405(1) · see it in the full Act

Cases considering section 392 3

Star China Media Limited, R (on the application of) v The Office of Communications

[2022] EWHC 3136 (Admin) · 8 December 2022

Requires OFCOM to publish guidelines for determining the amount of penalties. The judgment treats the Penalty Guidelines as part of the framework governing OFCOM’s penalty decision (see para [6]). Requires OFCOM to have regard to its penalty guidelines when determining the amount of a penalty. The judgment relies on this requirement when considering the consistency of general deterrence reasoning with the Guidelines (see paras [6], [22], [26]).

Autonomous Non-Profit Organisation TV-Novosti, R (On the Application Of) v The Office of Communications

[2020] EWHC 689 (Admin) · 27 March 2020

Ofcom must prepare and publish penalty guidelines. The judgment uses the statutory framework to assess the relevance of Ofcom’s Penalty Guidance. (see para [81]) Ofcom must have regard to its published penalty guidelines when determining the amount of a penalty. (see para [81])

Office of Communications v Star China Media Limited

[2025] EWHC 2816 (KB) · 30 October 2025

Identifies the statutory basis for Ofcom’s Penalty Guidelines, which required consideration of all circumstances and effective deterrence (see para [33]).

What each judgment says about section 392 is in the case-law panel in the full Act.

Explanatory note

853.This section requires OFCOM to prepare, publish and keep up-to-date guidelines for determining the penalties to be imposed by them under the Act (including any that the BBC may be liable to pay) or under any other enactment, except the Competition Act 1998. Before publishing any guidelines, OFCOM must consult the Secretary of State and other appropriate persons. When determining the amount of any penalty to be imposed OFCOM must have regard to their published guidelines.

All the explanatory notes for the Act

Amendments and notes

3 notes from legislation.gov.uk

Amendments

F1274Words in s. 392(1) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 16(2); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F1275Words in s. 392(6) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 16(3); S.I. 2024/1226, regs. 1(2), 2(1)(16)

Commencement

I530S. 392 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)