Digital Economy Bill (HC Bill 45)

Digital Economy BillPage 20

(c) by a person identified as the non-complying person in a notice given
under section 22, against the giving of that notice.

(5) A notice under subsection (1) or (2) must be published in the London,
Edinburgh and Belfast Gazettes.

(6) 5The Secretary of State may pay grants or make loans to the age-verification regulator
to cover expenditure incurred in the carrying out of its functions.

(7) Grants may be paid and loans made under subsection (6) subject to any conditions the
Secretary of State thinks appropriate (including conditions as to repayment).

18 Parliamentary procedure for designation of age-verification regulator

(1) 10The Secretary of State must lay particulars of any proposed designation under
section 17 before both Houses of Parliament.

(2) The Secretary of State must not make the proposed designation until after the
end of the period of 40 days beginning with the day on which the particulars
of it were laid.

(3) 15If either House resolves within that period that the Secretary of State should
not make the proposed designation, the Secretary of State must not make it.

(4) But subsection (3) is without prejudice to the Secretary of State’s power to lay
before Parliament particulars of further proposed designations in accordance
with this section.

(5) 20For the purposes of subsection (2)

(a) where particulars of a proposed designation are laid before the House
of Commons and the House of Lords on different days, the later day is
to be taken as the day on which the particulars were laid before both
Houses;

(b) 25in reckoning any period of 40 days, no account is to be taken of any time
during which Parliament is dissolved or prorogued or during which
both Houses are adjourned for more than 4 days.

19 Age-verification regulator’s power to require information

(1) The age-verification regulator may by notice require a relevant person to
30provide it with any information which it requires for the purpose of exercising,
or deciding whether to exercise, any function under this Part.

(2) The power in subsection (1) may only be exercised to require a relevant person
to provide information which the age-verification regulator believes the
relevant person has.

(3) 35A “relevant person” is a person who the age-verification regulator believes to
be involved, or to have been involved, in making pornographic material
available on the internet on a commercial basis to persons in the United
Kingdom.

(4) A notice under subsection (1) must specify—

(a) 40the form and manner in which the information must be provided; and

(b) the time at which, or period within which, the information must be
provided.

Digital Economy BillPage 21

(5) The power in subsection (1) is not exercisable in relation to information in
respect of which a claim to legal professional privilege (or, in Scotland,
confidentiality of communications) could be maintained in legal proceedings.

20 Enforcement of sections 15 and 19

(1) 5The age-verification regulator may impose a financial penalty on a person
where it determines that the person—

(a) is contravening or has contravened section 15(1); or

(b) has failed to comply with a requirement to provide information under
section 19.

(2) 10The age-verification regulator may give a person an enforcement notice where
it determines that the person is contravening section 15(1).

(3) The age-verification regulator must not make a determination under
subsection (1) or (2) in relation to a person unless it has allowed that person an
opportunity to make representations about why that determination should not
15be made.

(4) The age-verification regulator may—

(a) impose a financial penalty under subsection (1) without also giving an
enforcement notice under subsection (2);

(b) give an enforcement notice under subsection (2) without also imposing
20a financial penalty under subsection (1).

(5) No financial penalty may be imposed under subsection (1) in respect of a
contravention of section 15(1) if—

(a) the contravention has ceased, and

(b) the limitation period in respect of the contravention has expired.

(6) 25For the purposes of subsection (5) the limitation period in respect of a
contravention expires—

(a) at the end of the period of three years beginning with the day on which
the contravention began; or

(b) if sooner, at the end of the period of one year beginning with the day on
30which the age-verification regulator became aware of the
contravention.

(7) An “enforcement notice” is a notice which—

(a) specifies the determination made by the age-verification regulator
under subsection (2); and

(b) 35requires the person to whom it is given to end the contravention of
section 15(1).

(8) An enforcement notice must—

(a) include reasons for the age-verification regulator’s decision to give the
notice; and

(b) 40fix a reasonable period for ending the contravention of section 15(1).

(9) A person to whom an enforcement notice has been given must comply with it.

(10) If a person contravenes subsection (9), the age-verification regulator may
impose a financial penalty on that person.

Digital Economy BillPage 22

(11) The obligation under subsection (9) is also enforceable by the age-verification
regulator in civil proceedings—

(a) for an injunction;

(b) for specific performance of a statutory duty under section 45 of the
5Court of Session Act 1988; or

(c) for any other appropriate remedy or relief.

(12) The imposition of a financial penalty (“the first penalty”) on a person in respect
of a contravention of section 15(1) or subsection (9) does not prevent the
imposition of another financial penalty on that person under subsection (1) or
10(10) (as the case may be) in respect of any continuation of that contravention
after the first penalty is imposed.

(13) For further provision about financial penalties under this section, see section
21.

21 Financial penalties

(1) 15The age-verification regulator may impose a financial penalty on a person
under section 20(1) or (10) of such amount as the age-verification regulator
considers appropriate and proportionate to the contravention, or failure to
comply, in respect of which it is imposed.

(2) But the amount must not exceed whichever of the following is greater—

(a) 20£250,000;

(b) 5% of that person’s qualifying turnover (if any).

(3) For the purposes of subsection (2), a person’s “qualifying turnover” is—

(a) the amount of that person’s turnover for that person’s most recent
complete accounting period; or

(b) 25where the age-verification regulator is deciding the amount of the
penalty at a time when that person’s first accounting period has not yet
ended, the amount that the age-verification regulator estimates to be
that person’s likely turnover for that period.

(4) For the purposes of subsection (3), the amount of a person’s turnover for an
30accounting period is, in the event of a disagreement between that person and
the age-verification regulator, the amount determined by the age-verification
regulator.

(5) In deciding the amount of the financial penalty, the age-verification regulator
must have regard to the guidelines or revised guidelines in force under this
35section.

(6) A financial penalty under section 20(1) or (10) must be imposed by notice given
to the person on whom the penalty is imposed.

(7) The notice must—

(a) fix a time by which the penalty must be paid by that person to the age-
40verification regulator; and

(b) in the case of a financial penalty under subsection (1) of section 20,
specify the determination made by the age-verification regulator under
that subsection.

(8) A financial penalty received by the age-verification regulator must be paid into the
45Consolidated Fund.

Digital Economy BillPage 23

(9) The age-verification regulator must publish the guidelines it proposes to
follow in deciding the amount of a financial penalty under section 20(1) or (10).

(10) The age-verification regulator may revise the guidelines from time to time and
must publish any revised guidelines.

(11) 5The guidelines and any revised guidelines must be published in whatever way
the age-verification regulator considers appropriate for bringing them to the
attention of the persons who, in its opinion, are likely to be affected by them.

(12) Before publishing the guidelines or any revised guidelines, the age-verification
regulator must consult—

(a) 10the Secretary of State; and

(b) such other persons as it considers appropriate.

(13) Before deciding how to publish the guidelines or any revised guidelines, the
age-verification regulator must consult the Secretary of State.

(14) In subsection (3)

  • 15“accounting period”, in relation to a person, means a period in respect of
    which accounts are prepared in relation to that person or, where that
    person is an individual, in respect of that person’s principal business;

  • “turnover”, in relation to a person, means the amounts derived from the
    provision of goods and services by that person, after deduction of trade
    20discounts, value added tax and any other taxes based on the amounts
    so derived.

22 Age-verification regulator’s power to give notice of contravention to payment
service providers and ancillary service providers

(1) Where the age-verification regulator considers that a person (“the non-
25complying person”) is—

(a) contravening section 15(1); or

(b) making prohibited material available on the internet to persons in the
United Kingdom,

it may give notice of that fact to any payment-services provider or ancillary
30service provider.

(2) A notice under subsection (1) must—

(a) identify the non-complying person in such manner as the age-
verification regulator considers appropriate;

(b) state which of paragraphs (a) and (b) of subsection (1) applies;

(c) 35provide such further particulars as the age-verification regulator
considers appropriate.

(3) When the age-verification regulator gives notice under this section, it must
inform the non-complying person, by notice, that it has done so.

(4) In this section “prohibited material” means either of the following—

(a) 40the whole or part of a video work—

(i) if it is reasonable to assume from its nature that the video work
was produced solely or principally for the purposes of sexual
arousal, and

Digital Economy BillPage 24

(ii) if the video works authority has determined the video work not
to be suitable for a classification certificate to be issued in
respect of it;

(b) material whose nature is such that it is reasonable to assume—

(i) 5that it was produced solely or principally for the purposes of
sexual arousal, and

(ii) that the video works authority would determine that a video
work including it was not suitable for a classification certificate
to be issued in respect of it.

(5) 10In this section a “payment-services provider” means a person who appears to
the age-verification regulator to provide services, in the course of a business,
which enable funds to be transferred in connection with the payment by any
person for access to pornographic material or prohibited material made
available on the internet by the non-complying person.

(6) 15In this section an “ancillary service provider” means a person, other than a
payment-services provider, who appears to the age-verification regulator to—

(a) provide, in the course of a business, services which enable or facilitate
the making available of pornographic material or prohibited material
on the internet by the non-complying person; or

(b) 20advertise, on or via any internet site operated by the non-complying
person or via any other means of accessing the internet operated or
provided by that person, any goods or services provided in the course
of a business.

(7) The age-verification regulator may publish guidance for the purposes of
25subsections (1) and (6) about the circumstances in which it will treat services
provided in the course of a business as enabling or facilitating the making
available of pornographic material or prohibited material.

(8) In this section the following have the same meaning as in section 16—

(a) “classification certificate”;

(b) 30“material”;

(c) “video work”;

(d) “video works authority”.

23 Exercise of functions by the age-verification regulator

(1) The age-verification regulator may, if it thinks fit, choose to exercise its powers
35under sections 20 and 22 principally in relation to persons who, in the age-
verification regulator’s opinion—

(a) make pornographic material or prohibited material available on the
internet on a commercial basis to a large number of persons, or a large
number of persons under the age of 18, in the United Kingdom; or

(b) 40generate a large amount of turnover by doing so.

(2) The age-verification regulator may—

(a) carry out such consultation with any person as it considers appropriate
for the purposes of exercising, or considering whether to exercise, any
function under this Part;

(b) 45carry out, commission or support (financially or otherwise) any
research which it considers appropriate for the purposes of exercising,
or considering whether to exercise, any function under this Part;

Digital Economy BillPage 25

(c) publish the results of that research.

24 Requirements for notices given by regulator under this Part

(1) The age-verification regulator may give notice to a person under section 19, 20,
21 or 22 by sending the notice to that person—

(a) 5by post to that person’s proper address; or

(b) by email to that person’s email address.

(2) In the case of a notice given under section 19 or 22(1), a person’s proper address
for the purposes of subsection (1)(a), and section 7 of the Interpretation Act
1978 in its application to that subsection, is—

(a) 10where that person is a body corporate, the address of its registered
office or principal office;

(b) where that person is a partnership or an unincorporated association or
body, the address of its principal office;

(c) in any other case, that person’s last known address.

(3) 15In the case of a notice given under section 20, 21 or 22(3), a person’s proper
address for the purposes of subsection (1)(a), and section 7 of the Interpretation
Act 1978 in its application to that subsection, is any address at which the age-
verification regulator believes, on reasonable grounds, that the notice will
come to the attention of that person or (where that person is a body corporate)
20any director or other officer of that body corporate.

(4) For the purposes of subsection (1)(b), a person’s email address is—

(a) any email address published for the time being by that person as an
address for contacting that person; or

(b) if there is no such published address, any email address by means of
25which the age-verification regulator believes, on reasonable grounds,
that the notice will come to the attention of that person or (where that
person is a body corporate) any director or other officer of that body
corporate.

(5) A notice under section 19, 20, 21 or 22 sent to a person by email is to be taken
30to have been given to that person 48 hours after it is sent.

(6) In the case of—

(a) a body corporate registered outside the United Kingdom;

(b) a partnership carrying on business outside the United Kingdom; or

(c) a unincorporated association or body with offices outside the United
35Kingdom,

the references in subsection (2) to its principal office include references to its
principal office in the United Kingdom (if any).

(7) In this section—

  • “director” includes any person occupying the position of a director, by
    40whatever name called;

  • “officer”, in relation to a body corporate, includes a director, a manager, a
    secretary or, where the affairs of the body corporate are managed by its
    members, a member.

25 Interpretation of this Part

45In this Part—

    Digital Economy BillPage 26

  • “the age-verification regulator” means the person or persons designated
    as the age-verification regulator under section 17;

  • “turnover” has the meaning given in section 21(14).

Part 4 5Intellectual Property

26 Offences: infringing copyright and making available right

(1) The Copyright, Designs and Patents Act 1988 is amended as follows.

(2) In section 107 (criminal liability for making or dealing with infringing articles,
etc), for subsection (2A) substitute—

(2A) 10A person (“P”) who infringes copyright in a work by communicating
the work to the public commits an offence if P—

(a) knows or has reason to believe that P is infringing copyright in
the work, and

(b) either—

(i) 15intends to make a gain for P or another person, or

(ii) knows or has reason to believe that communicating the
work to the public will cause loss to the owner of the
copyright, or will expose the owner of the copyright to a
risk of loss.

(2B) 20For the purposes of subsection (2A)—

(a) “gain” and “loss”—

(i) extend only to gain or loss in money, and

(ii) include any such gain or loss whether temporary or
permanent, and

(b) 25“loss” includes a loss by not getting what one might get.”

(3) In subsection (4A)(b) of that section, for “two” substitute “ten”.

(4) In section 198 (criminal liability for making, dealing with or using illicit
recordings), for subsection (1A) substitute—

(1A) A person (“P”) who infringes a performer’s making available right in a
30recording commits an offence if P—

(a) knows or has reason to believe that P is infringing the right, and

(b) either—

(i) intends to make a gain for P or another person, or

(ii) knows or has reason to believe that infringing the right
35will cause loss to the owner of the right, or expose the
owner of the right to a risk of loss.

(1B) For the purposes of subsection (1A)—

(a) “gain” and “loss”—

(i) extend only to gain or loss in money, and

(ii) 40include any such gain or loss whether temporary or
permanent, and

(b) “loss” includes a loss by not getting what one might get.”

(5) In subsection (5A)(b) of that section, for “two” substitute “ten”.

Digital Economy BillPage 27

(6) The amendments made by this section do not apply in relation to offences
committed before this section comes into force.

27 Registered designs: infringement: marking product with internet link

(1) Section 24B of the Registered Designs Act 1949 (exemption of innocent
5infringer from liability) is amended as follows.

(2) In subsection (2) (defendant not deemed to have been aware etc that design
was registered by reason of the marking of the product unless it includes the
number of the design), after “the number of the design” insert “or a relevant
internet link”.

(3) 10After that subsection insert—

(2A) The reference in subsection (2) to a relevant internet link is a reference
to an address of a posting on the internet—

(a) which is accessible to the public free of charge, and

(b) which clearly associates the product with the number of the
15design.”

28 Copyright etc where broadcast retransmitted by cable

(1) In the Copyright, Designs and Patents Act 1988 the following are repealed—

(a) sections 73 and 73A (copyright not infringed where broadcast
retransmitted by cable);

(b) 20paragraphs 19 and 19A of Schedule 2 (rights in relation to performance
or recording not infringed where broadcast retransmitted by cable).

(2) In consequence the following are repealed or revoked—

(a) in the Copyright, Designs and Patents Act 1988—

(i) in section 134, subsection (3A) and, in subsection (1), the words
25“Subject to subsection (3A)”;

(ii) section 149(za);

(iii) section 205B(1)(cc);

(b) in the Broadcasting Act 1996, section 138 and Schedule 9;

(c) in the Copyright and Related Rights Regulations 2003 (S.I. 2003/2498S.I. 2003/2498),
30regulation 22.

(3) The Secretary of State may by regulations make transitional, transitory or
saving provision in connection with the coming into force of this section.

(4) The power to make regulations under subsection (3) is exercisable by statutory
instrument.

(5) 35A statutory instrument containing regulations under subsection (3) is subject
to annulment in pursuance of a resolution of either House of Parliament.

Digital Economy BillPage 28

Part 5 Digital government

CHAPTER 1 Public service delivery

29 Disclosure of information to improve public service delivery

(1) 5A specified person may disclose information held by the person in connection
with any of the person’s functions to another specified person for the purposes
of a specified objective.

(2) In this Chapter “specified person” means a person specified, or of a description
specified, in regulations made by the appropriate national authority.

(3) 10A person specified in regulations under subsection (2) must be—

(a) a public authority, or

(b) a person providing services to a public authority.

(4) In the case of a person (“P”) who is a specified person merely because of
providing services to a public authority, the reference in subsection (1) to the
15functions of a specified person is limited to the functions P exercises for that
purpose.

(5) In determining whether to make regulations under subsection (2) in relation to
a person or description of person the appropriate national authority must have
regard, in particular, to—

(a) 20the systems and procedures for the secure handling of information by
that person or persons of that description, and

(b) in the case of regulations which amend or revoke previous regulations
so that the person ceases to be a specified person, whether that person,
or any person providing services to that person, has had regard to the
25code of practice under section 35 as required by that section.

(6) In this section “specified objective” means an objective specified in regulations
made by the appropriate national authority.

(7) An objective may be specified by regulations under subsection (6) only if it
complies with the following conditions.

(8) 30The first condition is that the objective has as its purpose—

(a) the improvement or targeting of a public service provided to
individuals or households, or

(b) the facilitation of the provision of a benefit (whether or not financial) to
individuals or households.

(9) 35The second condition is that the objective has as its purpose the improvement
of the well-being of individuals or households.

(10) The reference in subsection (9) to the well-being of individuals or households
includes—

(a) their physical and mental health and emotional well-being,

(b) 40the contribution made by them to society, and

(c) their social and economic well-being.

Digital Economy BillPage 29

30 Disclosure of information to gas and electricity suppliers

(1) If the first and second conditions are met, a specified person may disclose
information held by the person in connection with any of the person’s
functions to—

(a) 5a licensed gas supplier, or

(b) a licensed electricity supplier.

(2) The first condition is that the disclosure is for the purpose of assisting people
living in fuel poverty by—

(a) reducing their energy costs,

(b) 10improving efficiency in their use of energy, or

(c) improving their health or financial well-being.

(3) The second condition is that the information is disclosed with the intention that
it will be used by the recipient of the information in connection with—

(a) a support scheme under Part 2 of the Energy Act 2010 (schemes for
15reducing fuel poverty),

(b) in the case of a disclosure to a licensed gas supplier, an obligation
imposed by an order under section 33BC or 33BD of the Gas Act 1986
(powers to impose obligations on gas suppliers etc), or

(c) in the case of a disclosure to a licensed electricity supplier, an obligation
20imposed by an order under section 41A or 41B of the Electricity Act
1989 (powers to impose obligations on electricity suppliers etc).

(4) The appropriate national authority may by regulations—

(a) amend subsection (1) so as to add or remove a person or description of
persons to whom information may be disclosed;

(b) 25amend subsection (3).

(5) In determining whether to make regulations under subsection (4)(a) in relation
to a person or description of person the appropriate national authority must
have regard, in particular, to—

(a) the systems and procedures for the secure handling of information by
30that person or persons of that description, and

(b) in the case of regulations which remove a person from subsection (1),
whether that person, or any person providing services to that person,
has had regard to the code of practice under section 35 as required by
that section.

(6) 35In the case of a person (“P”) who is a specified person merely because of
providing services to a public authority, the reference in subsection (1) to the
functions of a specified person is limited to the functions P exercises for that
purpose.

(7) For the purposes of this Chapter a person lives in fuel poverty if the person is
40a member of a household living on a lower income in a home which cannot be
kept warm at a reasonable cost.

(8) In this section—

  • “licensed gas supplier” means the holder of a licence under section 7A(1)
    of the Gas Act 1986;

  • 45“licensed electricity supplier” means the holder of a licence under section
    6(1)(d) of the Electricity Act 1989.