139ZS.— (1) The Commission shall decide, in respect of a F262[person] who is the subject of a report under section 139ZM—

(a) whether or not it is satisfied on the balance of probabilities that the F262[person] has committed the contravention to which the investigation relates, and

(b) if so, whether or not to impose an administrative financial sanction.

(2) A decision under subsection (1) that a contravention has been committed, or that an administrative financial sanction shall be imposed, does not take effect unless it is confirmed on appeal under section 139ZX or on summary application under section 139ZY. 

(3)  For the purposes of making a decision under subsection (1), the Commission shall consider—

F262[(a) the final report provided under subsection (7) of section 139ZM and any submissions or views provided with the report in accordance with that subsection,]

(b) any evidence adduced or submissions made during an oral hearing conducted under section 139ZR,

(c) any information provided as a result of a request under section 139ZR(4), and

(d) any submissions made pursuant to a notice under subsection (1) or (6) of section 139ZR.

(4)  F263[Other than where subsection (4A) applies, in deciding] under subsection (1)(b) whether or not to impose an administrative financial sanction on a F262[person], the Commission shall have regard to the matters referred to in paragraphs (a), (b), (c), (d) (e), (g), (h), (i), (j) and (k) of section 139ZW(3).]

F264[(4A) Where a contravention falls within paragraph (ba) of the definition of "contravention" in section 139ZG, in deciding whether or not to impose an administrative financial sanction on a hosting service provider, the Commission shall have regard to all relevant circumstances, including the following:

(a) the nature, gravity and duration of the contravention;

(b) whether the contravention was intentional or negligent;

(c) previous contraventions by the hosting service provider;

(d) the financial strength of the hosting service provider;

(e) the level of cooperation of the hosting service provider with the competent authorities designated pursuant to Article 12(1) of the Terrorist Content Online Regulation;

(f) the nature and size of the hosting service provider, in particular whether it is a micro, small or medium-sized enterprise;

(g) the degree of fault of the hosting service provider, taking into account the technical and organisational measures taken by the hosting service provider to comply with the Terrorist Content Online Regulation.]