 | |
| Determination by Commissioner as to the special purposes. |
44. - (1) Where at any time it appears to the Commissioner (whether as a result of the service of a special information notice or otherwise) that any personal data-
|
| |
(a) are not being processed only for the special purposes, or |
| |
(b) are not being processed with a view to the publication by any person of any journalistic, literary or artistic material which has not previously been published by the data controller, |
| |
he may make a determination in writing to that effect.
|
| |
(2) Notice of the determination shall be given to the data controller; and the notice must contain particulars of the right of appeal conferred by section 47.
|
| |
(3) A determination under subsection (1) shall not take effect until the end of the period within which an appeal can be brought and, where an appeal is brought, shall not take effect pending the determination or withdrawal of the appeal.
|
| Restriction on enforcement in case of processing for the special purposes. |
45. - (1) The Commissioner may not at any time serve an enforcement notice on a data controller with respect to the processing of personal data for the special purposes unless-
|
| |
(a) a determination under section 44(1) with respect to those data has taken effect, and |
| |
(b) the court has granted leave for the notice to be served. |
| |
(2) The court shall not grant leave for the purposes of subsection (1)(b) unless it is satisfied-
|
| |
(a) that the Commissioner has reason to suspect a contravention of the data protection principles which is of substantial public importance, and |
| |
(b) except where the case is one of urgency, that the data controller has been given notice, in accordance with rules of court, of the application for leave. |
| |
(3) The Commissioner may not serve an information notice on a data controller with respect to the processing of personal data for the special purposes unless a determination under section 44(1) with respect to those data has taken effect.
|
| Failure to comply with notice. |
46. - (1) A person who fails to comply with an enforcement notice, an information notice or a special information notice is guilty of an offence.
|
| |
(2) A person who, in purported compliance with an information notice or a special information notice-
|
| |
(a) makes a statement which he knows to be false in a material respect, or |
| |
(b) recklessly makes a statement which is false in a material respect, |
| |
is guilty of an offence.
|
| |
(3) It is a defence for a person charged with an offence under subsection (1) to prove that he exercised all due diligence to comply with the notice in question.
|
| Rights of appeal. |
47. - (1) A person on whom an enforcement notice, an information notice or a special information notice has been served may appeal to the Tribunal against the notice.
|
| |
(2) A person on whom an enforcement notice has been served may appeal to the Tribunal against the refusal of an application under section 40(2) for cancellation or variation of the notice.
|
| |
(3) Where an enforcement notice, an information notice or a special information notice contains a statement by the Commissioner in accordance with section 39(7), 42(6) or 43(7) then, whether or not the person appeals against the notice, he may appeal against-
|
| |
(a) the Commissioner's decision to include the statement in the notice, or |
| |
(b) the effect of the inclusion of the statement as respects any part of the notice. |
| |
(4) A data controller in respect of whom a determination has been made under section 44 may appeal to the Tribunal against the determination.
|
| |
(5) Schedule 6 has effect in relation to appeals under this section and the proceedings of the Tribunal in respect of any such appeal.
|
| Determination of appeals. |
48. - (1) If on an appeal under section 47(1) the Tribunal considers-
|
| |
(a) that the notice against which the appeal is brought is not in accordance with the law, or |
| |
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, |
| |
the Tribunal shall allow the appeal or substitute such other notice or decision as could have been served or made by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
|
| |
(2) On such an appeal, the Tribunal may review any determination of fact on which the notice in question was based.
|
| |
(3) If on an appeal under section 47(2) the Tribunal considers that the enforcement notice ought to be cancelled or varied by reason of a change in circumstances, the Tribunal shall cancel or vary the notice.
|
| |
(4) On an appeal under subsection (3) of section 47 the Tribunal may direct that-
|
| |
(a) the notice in question shall have effect as if it did not contain any such statement as is mentioned in that subsection, or |
| |
(b) that the inclusion of the statement shall not have effect in relation to any part of the notice, |
| |
and may make such modifications in the notice as may be required for giving effect to the direction.
|
| |
(5) On an appeal under section 47(4), the Tribunal may cancel the determination of the Commissioner.
|
| |
(6) Any party to an appeal to the Tribunal under section 47 may appeal from the decision of the Tribunal on a point of law to the appropriate court; and that court shall be-
|
| |
(a) the High Court of Justice in England if the address of the person who was the appellant before the Tribunal is in England or Wales, |
| |
(b) the Court of Session if that address is in Scotland, and |
| |
(c) the High Court of Justice in Northern Ireland if that address is in Northern Ireland. |
| |
(7) For the purposes of subsection (6)-
|
| |
(a) the address of a registered company is that of its registered office, and |
| |
(b) the address of a person (other than a registered company) carrying on a business is that of his principal place of business in the United Kingdom. |
| Powers of entry and inspection. |
49. Schedule 9 (powers of entry and inspection) has effect.
|
