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Communications Bill


Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    113

 

is a provider of the relevant service falling within subsection (9)(a) to

(d).

     (12)   A person falls within this subsection if—

           (a)           he is the provider of an electronic communications network used for

the provision of the relevant service; and

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           (b)           the use of that network for the provision of premium rate services, or of

services that include or may include premium rate services, is

authorised by an agreement subsisting between that person and either

an intermediary service provider or a person who is a provider of the

relevant service by virtue of subsection (10) or (11).

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     (13)          Where one or more persons are employed or engaged under the direction of

another to do any of the things mentioned in subsection (9)(a) to (d), only that

other person shall be a provider of the relevant service for the purposes of this

Chapter.

     (14)   References in this section to a facility include, in particular, references to—

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           (a)           a facility for making a payment for goods or services;

           (b)           a facility for entering a competition or claiming a prize; and

           (c)           a facility for registering a vote or recording a preference.

     (15)   In this section—

                    “approved code” means a code for the time being approved under section

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119;

                    “enforcement authority”, in relation to such a code, means the person who

under the code has the function of enforcing it; and

                    “intermediary service provider” means a person who—

                  (a)                 provides an electronic communications service used for the

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provision of the relevant service or an electronic

communications network so used; and

                  (b)                 is a party to an agreement with—

                      (i)                     a provider of the relevant service falling within subsection

(9)(a) to (d), or

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                      (ii)                    another intermediary service provider,

                                      which relates to the use of that electronic communications

service or network for the provision of premium rate services,

or of services that include or may include premium rate

services.

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 119   Approval of code for premium rate services

     (1)    If it appears to OFCOM—

           (a)           that a code has been made by any person for regulating the provision

and contents of premium rate services, and the facilities made available

in the provision of such services;

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           (b)           that the code contains provision for regulating, to such extent (if any)

as they think fit, the arrangements made by the providers of premium

rate services for promoting and marketing those services; and

           (c)           that it would be appropriate for them to approve that code for the

purposes of section 118,

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            they may approve that code for those purposes.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    114

 

     (2)    OFCOM are not to approve a code for those purposes unless they are

satisfied—

           (a)           that there is a person who, under the code, has the function of

administering and enforcing it; and

           (b)           that that person is sufficiently independent of the providers of

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premium rate services;

           (c)           that adequate arrangements are in force for funding the activities of

that person in relation to the code;

           (d)           that the provisions of the code are objectively justifiable in relation to

the services to which it relates;

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           (e)           that those provisions are not such as to discriminate unduly against

particular persons or against a particular description of persons;

           (f)           that those provisions are proportionate to what they are intended to

achieve; and

           (g)           that, in relation to what those provisions are intended to achieve, they

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are transparent.

     (3)           OFCOM are not for those purposes to approve so much of a code as imposes

an obligation as respects a premium rate service on a person who is a provider

of the service by virtue only of section 118(12) (“the relevant provider”) unless

they are satisfied that the obligation—

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           (a)           arises only if there is no one who is a provider of the service otherwise

than by virtue of section 118(12) against whom it is practicable to take

action;

           (b)           arises only after a notice identifying the service and setting out respects

in which requirements of the code have been contravened in relation to

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it has been given to the relevant provider by the person responsible for

enforcing the code; and

           (c)           is confined to an obligation to secure that electronic communications

networks provided by the relevant provider are not used for making

the service available to persons who are in the United Kingdom.

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     (4)    The provision that may be contained in a code and approved under this section

includes, in particular, provision about the pricing of premium rate services

and provision for the enforcement of the code.

     (5)    The provision for the enforcement of a code that may be approved under this

section includes—

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           (a)           provision for the payment, to a person specified in the code, of a

penalty not exceeding the maximum penalty for the time being

specified in section 121(2);

           (b)           provision requiring a provider of a premium rate service to secure that

the provision of the service is suspended or otherwise ceases or is

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restricted in any respect;

           (c)           provision for the imposition on a person, in respect of a contravention

of the code, of a temporary or permanent prohibition or restriction on

his working in connection with the provision of premium rate services

or, in the case of a body corporate, on its providing such services or on

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its carrying on other activities in connection with their provision.

     (6)    OFCOM may, at any time, for the purposes of section 118

           (a)           approve modifications that have been made to an approved code; or

           (b)           withdraw their approval from an approved code.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    115

 

     (7)    Where OFCOM give or withdraw an approval for the purposes of section 118,

they must give notification of their approval or of its withdrawal.

     (8)    The notification must be published in such manner as OFCOM consider

appropriate for bringing it to the attention of the persons who, in OFCOM’s

opinion, are likely to be affected by the approval or withdrawal.

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 120   Orders by OFCOM in the absence of a code under s. 119

     (1)    OFCOM may make an order under this section if, at any time, they consider

that there is no code in force to which they think it would be appropriate to

give, or to continue to give, their approval under section 119.

     (2)    An order under this section may make such of the following provisions as

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OFCOM think fit—

           (a)           provision imposing requirements with respect to the provision and

contents of premium rate services, and with respect to the facilities

made available in the provision of such services (including provision

about pricing);

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           (b)           provision imposing requirements with respect to the arrangements

made by the providers of premium rate services for the promotion and

marketing of those services;

           (c)           provision for the enforcement of requirements imposed by virtue of

paragraph (a) or (b);

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           (d)           provision making other arrangements for the purposes of those

requirements.

     (3)    The power to make provision by an order under this section includes, in

particular—

           (a)           power to establish a body corporate with the capacity to make its own

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rules and to establish its own procedures;

           (b)           power to determine the jurisdiction of a body established by such an

order or, for the purposes of the order, of any other person;

           (c)           power to confer jurisdiction with respect to any matter on OFCOM

themselves;

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           (d)           power to provide for a person on whom jurisdiction is conferred by the

arrangements to make awards of compensation, to direct the

reimbursement of costs or expenses, or to do both;

           (e)           power to provide for such a person to enforce, or to participate in the

enforcement of, any awards or directions made under such an order;

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           (f)                         power to make provision falling within section 119(5)(c) for the

enforcement of the provisions of the order; and

           (g)           power to make such other provision as OFCOM think fit for the

enforcement of such awards and directions.

     (4)    An order under this section may require such providers of premium rate

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services as may be determined by or under the order to make payments to

OFCOM in respect of expenditure incurred by OFCOM in connection with—

           (a)           the establishment and maintenance, in accordance with such an order,

of any body corporate or procedure; or

           (b)           the making of other arrangements for the purposes of the requirements

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of such an order.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    116

 

     (5)           An order under this section is not to impose an obligation as respects a

premium rate service on a person who is a provider of the service by virtue

only of section 118(12) (“the relevant provider”) unless the obligation—

           (a)           arises only if there is no one who is a provider of the service otherwise

than by virtue of section 118(12) against whom it is practicable to take

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action;

           (b)           arises only after a notice identifying the service and setting out respects

in which requirements of the order have been contravened in relation

to it has been given to the relevant provider by OFCOM; and

           (c)           is confined to an obligation to secure that electronic communications

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networks provided by the relevant provider are not used for making

the service available to persons who are in the United Kingdom.

     (6)    The consent of the Secretary of State is required for the making by OFCOM of

an order under this section.

     (7)    Section 400 applies to the power of OFCOM to make an order under this

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section.

     (8)    A statutory instrument containing an order made by OFCOM under this

section shall be subject to annulment in pursuance of a resolution of either

House of Parliament.

 121   Enforcement of s. 118 conditions

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     (1)    Sections 92 to 94 apply in relation to a contravention of conditions set under

section 118 as they apply in relation to a contravention of a condition set under

section 43.

     (2)    The amount of the penalty imposed under section 94 as applied by this section

is to be such amount not exceeding £100,000 as OFCOM determine to be—

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           (a)           appropriate; and

           (b)           proportionate to the contravention in respect of which it is imposed.

     (3)    In making that determination OFCOM must have regard to—

           (a)           any representations made to them by the notified provider;

           (b)           any steps taken by him towards complying with the conditions

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contraventions of which have been notified to him under section 92 (as

applied); and

           (c)           any steps taken by him for remedying the consequences of those

contraventions.

     (4)    The Secretary of State may by order amend this section so as to substitute a

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different maximum penalty for the maximum penalty for the time being

specified in subsection (2).

     (5)    No order is to be made containing provision authorised by subsection (4)

unless a draft of the order has been laid before Parliament and approved by a

resolution of each House.

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 122   Suspending service provision for contraventions of s. 118 conditions

     (1)    OFCOM may give a direction under this section to a person who is a

communications provider (“the contravening provider”) if they are satisfied—

           (a)           that he is or has been in serious and repeated contravention of

conditions set under section 118;

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Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    117

 

           (b)           that an attempt, by the imposition of penalties or the giving of

enforcement notifications under section 93 (as applied by section 121)

or both, to secure compliance with the contravened conditions has

failed;

           (c)           that the giving of the direction is appropriate and proportionate to the

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seriousness (when repeated as they have been) of the contraventions;

and

           (d)           that the giving of the direction is required for reasons of public policy.

     (2)           OFCOM may also give a direction under this section to a person who is a

communications provider (“the contravening provider”) if they are satisfied—

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           (a)           that he is, or has been, in contravention of conditions set under section

118 in respect of a premium rate service;

           (b)           that the circumstances of the contravention make it appropriate for

OFCOM to suspend or restrict the provision of premium rate services

provided by the contravening provider without the conditions set out

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in subsection (1) being satisfied; and

           (c)           that in those circumstances the giving of the direction is urgently

required for reasons of public policy.

     (3)    A direction under this section is—

           (a)           a direction to the contravening provider to secure the suspension of the

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provision of premium rate services provided by him; or

           (b)                         a direction requiring him to secure compliance with restrictions, set out

in the direction, on the provision of such services.

     (4)    A direction under this section—

           (a)           must specify the services to which it relates; and

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           (b)           except so far as it otherwise provides, takes effect for an indefinite

period beginning with the time at which it is notified to the person to

whom it is given.

     (5)    A direction under this section—

           (a)           in providing for the effect of a suspension or restriction to be

30

postponed, may provide for it to take effect only at a time determined

by or in accordance with the terms of the direction; and

           (b)           in connection with the suspension or restriction contained in the

direction or with the postponement of its effect, may impose such

conditions on the contravening provider as appear to OFCOM to be

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appropriate for the purpose of protecting that provider’s customers.

     (6)    Those conditions may include a condition requiring the making of payments—

           (a)           by way of compensation for loss or damage suffered by the

contravening provider’s customers as a result of the direction; or

           (b)           in respect of annoyance, inconvenience or anxiety to which they have

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been put in consequence of the direction.

     (7)    If OFCOM consider it appropriate to do so (whether or not in consequence of

representations or proposals made to them), they may revoke a direction under

this section or modify its conditions—

           (a)           with effect from such time as they may direct;

45

           (b)           subject to compliance with such requirements as they may specify; and

           (c)           to such extent and in relation to such services as they may determine.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    118

 

     (8)    Sections 100 and 101 apply in the case of a direction under this section as they

apply in the case of a direction under section 98, but as if references in section

101(1) to an electronic communications network or electronic communications

service were references to a premium rate service.

     (9)    For the purposes of this section there are repeated contraventions by a person

5

of conditions set under section 118 to the extent that—

           (a)           in the case of a previous notification given to that person under section

section 92 (as applied by section 121), OFCOM have determined for the

purposes of section 93(2) or 94(2) (as so applied) that such a

contravention did occur; and

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           (b)           in the period of twelve months following the day of the making of that

determination, one or more further notifications have been given to

that person in respect of contraventions of a condition set under section

118.

     (10)   For the purposes of this section the seriousness of repeated contraventions of

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conditions set under section 118 has to be determined by reference to the

seriousness of the contraventions of the approved code or order by reference

to which the conditions have effect.

Offences relating to networks and services

 123   Dishonestly obtaining electronic communications services

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     (1)    A person who—

           (a)           dishonestly obtains an electronic communications service, and

           (b)           does so with intent to avoid payment of a charge applicable to the

provision of that service,

            is guilty of an offence.

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     (2)    It is not an offence under this section to obtain a service mentioned in section

297(1) of the Copyright, Designs and Patents Act 1988 (c. 48) (dishonestly

obtaining a broadcasting or cable programme service provided from a place in

the UK).

     (3)    A person guilty of an offence under this section shall be liable—

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           (a)           on summary conviction, to imprisonment for a term not exceeding six

months or to a fine not exceeding the statutory maximum, or to both;

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

five years or to a fine, or to both.

 124   Possession or supply of apparatus etc. for contravening s. 123

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     (1)    A person is guilty of an offence if, with an intention falling within subsection

(3), he has in his possession or under his control anything that may be used—

           (a)           for obtaining an electronic communications service; or

           (b)           in connection with obtaining such a service.

     (2)    A person is guilty of an offence if—

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           (a)           he supplies or offers to supply anything which may be used as

mentioned in subsection (1); and

           (b)           he knows or believes that the intentions in relation to that thing of the

person to whom it is supplied or offered fall within subsection (3).

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    119

 

     (3)    A person’s intentions fall within this subsection if he intends—

           (a)           to use the thing to obtain an electronic communications service

dishonestly;

           (b)           to use the thing for a purpose connected with the dishonest obtaining

of such a service;

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           (c)           dishonestly to allow the thing to be used to obtain such a service; or

           (d)           to allow the thing to be used for a purpose connected with the dishonest

obtaining of such a service.

     (4)    An intention does not fall within subsection (3) if it relates exclusively to the

obtaining of a service mentioned in section 297(1) of the Copyright, Designs

10

and Patents Act 1988 (c. 48).

     (5)    A person guilty of an offence under this section shall be liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding six

months or to a fine not exceeding the statutory maximum, or to both;

and

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           (b)           on conviction on indictment, to imprisonment for a term not exceeding

five years or to a fine, or to both.

     (6)    In this section, references, in the case of a thing used for recording data, to the

use of that thing include references to the use of data recorded by it.

 125   Improper use of public electronic communications network

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     (1)    A person is guilty of an offence if he—

           (a)           sends by means of a public electronic communications network a

message or other matter that is grossly offensive or of an indecent,

obscene or menacing character; or

           (b)           causes any such message or matter to be so sent.

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     (2)    A person is guilty of an offence if, for the purpose of causing annoyance,

inconvenience or needless anxiety to another, he—

           (a)           sends by means of a public electronic communications network, a

message that he knows to be false,

           (b)           causes such a message to be sent; or

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           (c)           persistently makes use of a public electronic communications network.

     (3)    A person guilty of an offence under this section shall be liable, on summary

conviction, to imprisonment for a term not exceeding six months or to a fine

not exceeding level 5 on the standard scale, or to both.

     (4)    Subsections (1) and (2) do not apply to anything done in the course of

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providing a programme service (within the meaning of the Broadcasting Act

1990 (c. 42)).

Persistent misuse of network or service

 126   Notification of misuse of networks and services

     (1)    Where OFCOM determine that there are reasonable grounds for believing that

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a person has persistently misused an electronic communications network or

electronic communications services, they may give that person a notification

under this section.

 

 

 
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