A new “Infringement Notice Regime” proposed to give teeth to the provisions of Tonga’s Communications Act of 2015 will allow government to issue penalties of between $1000 and $4000 when they believe a person has contravened the Act, without going to court.
Ministry CEO, Paula Ma‘u, stated that the Minister of MEIDECC intended to make a declaration to introduce “a flexible enforcement tool to effectively regulate the communications sector.”
The Communications (Infringement Notice Regime) Declaration 2019 will enable the Regulator of the Communications Sector (MEIDECC) to lawfully issue infringement notices without having to commence court proceedings.
“Like a traffic offence (i.e. ticket) the fines imposed by these infringement notices are much lower than the maximum liability under a criminal proceeding,” he stated.
But a traffic officer will not be issuing the tickets – civil servants will.
The notices may be issued by the Regulator “where it has reasonable grounds to believe that a person has contravened a provision of the Act.”
The Communications Sector includes operators who hold licences to provide a service or own communications facilities that are subject to licensing under the Act within Tonga. It includes network operators, broadcasting services, dial-up information services, on-line entertainment service and others generally using systems for communications by means of guided or unguided electromagnetic energy.
The public may submit views by email to the ministry on the intended “Infringement Notice Regime, before the end of this week.
According to a statement on the Ministry of Meteorology, Energy, Information, Disaster Management, Environment, Climate Change and Communications (MEIDECC) website, the email consultation started on 11 June and will end on Friday 12 July 2019.
The Minister intends to make the declaration in accordance with section 162(7) of the Communications Act 2015.
The Ministry stated that the fines imposed by the infringement notices are much lower than the maximum liability under a criminal proceeding, and that “any person issued with an infringement notice would have the choice of paying the fine or challenging it through a review process provided under the Act.”
Calvy Aomina, the email responder at MEIDECC, told Matangi Tonga that the provisions are already existing offences under the Act.
“What we are trying to do is just to give effect to it. At least we have teeth to enforce our law, which we believe will help us effectively regulate the communications sector.
“In essence, instead of going to Court, we will just issue infringement notices (like traffic tickets) and that's it. Which is also cheaper, and without any criminal record,” he said.
Schedule of Penalties under the Infringement Notice Regime
The proposed Infringement Notice Provisions under the Act with penalties of between $1000 and $4000 are specified for the following infringements (in bold):
Section 24 Publication – Unlawful publication, disclosure or use of sensitive information. Infringement Notice Penalty $2000.
(Section 24 of the Act allows the Regulator to publish specified information, while at the same time prohibiting the Regulator and its current and former employees or agents, and other persons from disclosing sensitive information or using it for personal advantage without consent of the person who provided the sensitive information.
Sensitive information means information that is submitted to the Registrar by a person who may be required to do so under the Act. This is to ensure that information supplied by Network Operators and others in the communications sector is kept without unlawful publication by the Regulator.
Section 30 Supply of communications services without authorisation is an offence. Infringement Notice Penalty $2000.
Supply of communications services to the public without a Network Operator Licence and without registration as a Service Provider is prohibited under the Act. (Under the Act, on conviction fines up to $10,000 or imprisonment up to 2 years).
Section 35 For non-compliance with licence conditions. Infringement Notice Penalty $2000.
(Under the Act, on conviction fines up to $10,000 or imprisonment up to 2 years).
Section 36 Provision of false or misleading information. Infringement Notice Penalty $4000.
Punishes the provision of false or misleading information in applications for a Network Operator Licence. (Under the Act, on conviction fines up to $20,000 and/or imprisonment up to 5 years).
Section 43 Provision of false and misleading information. Infringement Notice Penalty $4000.
Annual Service Provider Registration Fees – Punishes the provision of false and misleading information. (Under the Act, on conviction fines up to $20,000 and/or imprisonment up to 5 years).
Section 105 Unlawful supply of content application services. Infringement Notice Penalty $2000.
It is an offence for a licensee to supply content applications services contrary to the Act or licence.
Section 156 Accidental damage to communications facilities. Infringement Notice Penalty of $1000.
Any person by misconduct or negligence causes damage or destroys a communications facility.
Section 159 General penalty. Infringement Notice Penalty $2000.
For every omission or failure to comply with the provisions of the Act.
Section 169 Unlawful disclosure. Infringement Notice Penalty $2000.
This section of the Act gives investigatory power to the Regulator. It also specifies that a person who without lawful authority discloses the fact that a notice under this section has been made or anything done (including the fact that any information has been provided to the Regulator) under a notice under this section before the commencement of an enforcement action commits an offence.