House of Lords portcullis
House of Lords
Session 2002 - 03
Internet Publications
Other Bills before Parliament

Communications Bill


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

    120

 

     (2)    A notification under this section is one which—

           (a)           sets out the determination made by OFCOM;

           (b)           specifies the use that OFCOM consider constitutes persistent misuse;

and

           (c)           specifies the period during which the person notified has an

5

opportunity of making representations about the matters notified.

     (3)    That period must not be less than the following—

           (a)           in an urgent case, seven days; and

           (b)           in any other case, one month.

     (4)    A case is an urgent case for the purposes of subsection (3) if OFCOM

10

consider—

           (a)           that the misuse in question is continuing; and

           (b)           that the harm it causes makes it necessary for it to be stopped as soon

as possible.

     (5)    For the purposes of this Chapter a person misuses an electronic

15

communications network or electronic communications service if—

           (a)           the effect or likely effect of his use of the network or service is to cause

another person unnecessarily to suffer annoyance, inconvenience or

anxiety; or

           (b)           he uses the network or service to engage in conduct the effect or likely

20

effect of which is to cause another person unnecessarily to suffer

annoyance, inconvenience or anxiety.

     (6)    For the purposes of this Chapter the cases in which a person is to be treated as

persistently misusing a network or service include any case in which his

misuse is repeated on a sufficient number of occasions for it to be clear that the

25

misuse represents—

           (a)           a pattern of behaviour or practice; or

           (b)           recklessness as to whether persons suffer annoyance, inconvenience or

anxiety.

     (7)    For the purpose of determining whether misuse on a number of different

30

occasions constitutes persistent misuse for the purposes of this Chapter, each

of the following is immaterial—

           (a)           that the misuse was in relation to a network on some occasions and in

relation to a service on others;

           (b)           that different networks or services were involved on different

35

occasions; and

           (c)           that the persons who were or were likely to suffer annoyance

inconvenience or anxiety were different on different occasions.

     (8)    If he considers that appropriate alternative means of dealing with it exists, the

Secretary of State may by order provide that a use of a description specified in

40

the order is not to be treated for the purposes of this Chapter as a misuse of an

electronic communications network or electronic communications service.

 127   Enforcement notifications for stopping persistent misuse

     (1)    This section applies where—

           (a)           a person (“the notified misuser”) has been given a notification under

45

section 126;

 

 

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

    121

 

           (b)           OFCOM have allowed the notified misuser an opportunity of making

representations about the matters notified; and

           (c)           the period allowed for the making of the representations has expired.

     (2)    OFCOM may give the notified misuser an enforcement notification if they are

satisfied—

5

           (a)           that he has, in one or more of the notified respects, persistently misused

an electronic communications network or electronic communications

service; and

           (b)           that he has not, since the giving of the notification, taken all such steps

as OFCOM consider appropriate for—

10

                  (i)                 securing that his misuse is brought to an end and is not

repeated; and

                  (ii)                remedying the consequences of the notified misuse.

     (3)    An enforcement notification is a notification which imposes a requirement on

the notified misuser to take all such steps for—

15

           (a)           securing that his misuse is brought to an end and is not repeated, and

           (b)           remedying the consequences of the notified misuse,

            as may be specified in the notification.

     (4)    A decision of OFCOM to give an enforcement notification to a person must fix

a reasonable period for the taking of the steps required by the notification.

20

     (5)    It shall be the duty of a person to whom an enforcement notification has been

given to comply with it.

     (6)    That duty shall be enforceable in civil proceedings by OFCOM—

           (a)           for an injunction;

           (b)           for specific performance of a statutory duty under section 45 of the

25

Court of Session Act 1988 (c. 36); or

           (c)           for any other appropriate remedy or relief.

     (7)    References in this section to remedying the consequences of misuse include

references to paying an amount to a person—

           (a)           by way of compensation for loss or damage suffered by that person; or

30

           (b)           in respect of annoyance, inconvenience or anxiety to which he has been

put.

 128   Penalties for persistent misuse

     (1)    This section applies (in addition to section 127) where—

           (a)           a person (“the notified misuser”) has been given a notification under

35

section 126;

           (b)           OFCOM have allowed the notified misuser an opportunity of making

representations about the matters notified; and

           (c)           the period allowed for the making of the representations has expired.

     (2)    OFCOM may impose a penalty on the notified misuser if he has, in one or more

40

of the notified respects, persistently misused an electronic communications

network or electronic communications service.

     (3)    OFCOM may also impose a penalty on the notified misuser if he has

contravened a requirement of an enforcement notification given in respect of

the notified misuse.

45

 

 

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

    122

 

     (4)    The amount of a penalty imposed is to be such amount not exceeding £5,000 as

OFCOM determine to be—

           (a)           appropriate; and

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

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

5

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

           (b)           any steps taken by him for securing that his misuse is brought to an end

and is not repeated; and

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

misuse.

10

     (6)    Where OFCOM impose a penalty on a person under this section, they shall—

           (a)           notify the person penalised; and

           (b)           in that notification, fix a reasonable period after it is given as the period

within which the penalty is to be paid.

     (7)    A penalty imposed under this section—

15

           (a)           must be paid to OFCOM; and

           (b)           if not paid within the period fixed by them, is to be recoverable by them

accordingly.

     (8)    It is to be possible for a person to be both liable for an offence under sections

123 to 125 and to have a penalty imposed on him under this section in respect

20

of the same conduct.

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

different maximum penalty for the maximum penalty for the time being

specified in subsection (4).

     (10)   No order is to be made containing provision authorised by subsection (9)

25

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

resolution of each House.

 129   Statement of policy on persistent misuse

     (1)    It shall be the duty of OFCOM to prepare and publish a statement of their

general policy with respect to the exercise of their powers under sections 126

30

to 128.

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

     (3)    Where OFCOM make or revise their statement of policy under this section,

they must publish that statement or (as the case may be) the revised statement

in such manner as they consider appropriate for bringing it to the attention of

35

the persons who, in their opinion, are likely to be affected by it.

     (4)    It shall be the duty of OFCOM, in exercising the powers conferred on them by

sections 126 to 128, to have regard to the statement for the time being in force

under this section.

 

 

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

    123

 

Powers to deal with emergencies

 130   Powers to require suspension or restriction of a provider’s entitlement

     (1)    If the Secretary of State has reasonable grounds for believing that it is necessary

to do so—

           (a)           to protect the public from any threat to public safety or public health, or

5

           (b)           in the interests of national security,

            he may, by a direction to OFCOM, require them to give a direction under

subsection (3) to a person (“the relevant provider”) who provides an electronic

communications network or electronic communications service or who makes

associated facilities available.

10

     (2)    OFCOM must comply with a requirement of the Secretary of State under

subsection (1) by giving to the relevant provider such direction under

subsection (3) as they consider necessary for the purpose of complying with the

Secretary of State’s direction.

     (3)    A direction under this section is—

15

           (a)           a direction that the entitlement of the relevant provider to provide

electronic communications networks or electronic communications

services, or to make associated facilities available, is suspended (either

generally or in relation to particular networks, services or facilities); or

           (b)           a direction that that entitlement is restricted in the respects set out in the

20

direction.

     (4)    A direction under subsection (3)—

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

           (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

25

whom it is given.

     (5)    A direction under subsection (3)—

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

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

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

30

           (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 relevant provider as appear to OFCOM to be

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

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

35

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

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

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

been put in consequence of the direction.

     (7)    Where OFCOM give a direction under subsection (3), they shall, as soon as

40

practicable after doing so, provide that person with an opportunity of—

           (a)           making representations about the effect of the direction; and

           (b)           proposing steps for remedying the situation.

     (8)    If OFCOM consider it appropriate to do so (whether in consequence of any

representations or proposals made to them under subsection (3) or otherwise),

45

 

 

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

    124

 

they may, without revoking it, at any time modify the terms of a direction

under subsection (3) in such manner as they consider appropriate.

     (9)    If the Secretary of State considers it appropriate to do so, he may, by a direction

to OFCOM, require them to revoke a direction under subsection (3).

     (10)   Where OFCOM modify or revoke a direction they have given under subsection

5

(3), they may do so—

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

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

           (c)           to such extent and in relation to such networks, services or facilities, or

parts of a network, service or facility, as they may determine.

10

     (11)   It shall be the duty of OFCOM to comply with—

           (a)           a requirement under subsection (9) to revoke a direction; and

           (b)           a requirement contained in that direction as to how they should

exercise their powers under subsection (10) in the case of the required

revocation.

15

 131   Enforcement of directions under s. 130

     (1)    A person is guilty of an offence if he provides an electronic communications

network or electronic communications service, or makes available any

associated facility—

           (a)           while his entitlement to do so is suspended by a direction under section

20

130; or

           (b)           in contravention of a restriction contained in such a direction.

     (2)    A person guilty of an offence under subsection (1) shall be liable—

           (a)           on summary conviction, to a fine not exceeding the statutory

maximum;

25

           (b)           on conviction on indictment, to a fine.

     (3)    The duty of a person to comply with a condition of a direction under section

130 shall be a duty owed to every person who may be affected by a

contravention of the condition.

     (4)    Where a duty is owed by virtue of subsection (3) to a person—

30

           (a)           a breach of the duty that causes that person to sustain loss or damage,

and

           (b)           an act which—

                  (i)                 by inducing a breach of the duty or interfering with its

performance, causes that person to sustain loss or damage, and

35

                  (ii)                is done wholly or partly for achieving that result,

            shall be actionable at the suit or instance of that person.

     (5)    In proceedings brought against a person by virtue of subsection (4)(a) it shall

be a defence for that person to show that he took all reasonable steps and

exercised all due diligence to avoid contravening the condition in question.

40

     (6)    Sections 92 to 97 apply in relation to a contravention of conditions imposed by

a direction under section 130 as they apply in relation to a contravention of

conditions set under section 43.

 

 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2003
Revised 3 July 2003