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119 Orders by OFCOM in the absence of a code under s. 118 | |
(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 118. | |
(2) An order under this section may make such of the following provisions as | 5 |
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); | 10 |
(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); | 15 |
(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 | 20 |
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; | 25 |
(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; | 30 |
(f) power to make provision falling within section 118(4)(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 | 35 |
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 | 40 |
of such an order. | |
(5) The consent of the Secretary of State is required for the making by OFCOM of | |
an order under this section. | |
(6) Section 396 applies to the power of OFCOM to make an order under under this | |
section. | 45 |
(7) 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. | |
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120 Enforcement of s. 117 conditions | |
(1) Sections 91 to 93 apply in relation to a contravention of conditions set under | |
section 117 as they apply in relation to a contravention of a condition set under | |
section 42. | |
(2) The amount of the penalty imposed under section 93 as applied by this section | 5 |
is to be such amount not exceeding £100,000 as OFCOM determine to be— | |
(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; | 10 |
(b) any steps taken by him towards complying with the conditions | |
contraventions of which have been notified to him under section 91 (as | |
applied); and | |
(c) any steps taken by him for remedying the consequences of those | |
contraventions. | 15 |
(4) 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 (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 | 20 |
resolution of each House. | |
121 Suspending service provision for contraventions of s. 117 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 | 25 |
conditions set under section 117; | |
(b) that an attempt, by the imposition of penalties or the giving of | |
enforcement notifications under section 92 (as applied by section 120) | |
or both, to secure compliance with the contravened conditions has | |
failed; | 30 |
(c) that the giving of the direction is appropriate and proportionate to the | |
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 | 35 |
communications provider (“the contravening provider”) if they are satisfied— | |
(a) that he is, or has been, in contravention of conditions set under section | |
117 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 | 40 |
provided by the contravening provider without the conditions set out | |
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— | 45 |
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(a) a direction to the contravening provider to secure the suspension of the | |
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— | 5 |
(a) must specify the services 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 | |
whom it is given. | |
(5) A direction under this section— | 10 |
(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 | |
(b) in connection with the suspension or restriction contained in the | |
direction or with the postponement of its effect, may impose such | 15 |
conditions on the contravening 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— | |
(a) by way of compensation for loss or damage suffered by the | |
contravening provider’s customers as a result of the direction; or | 20 |
(b) in respect of annoyance, inconvenience or anxiety to which they have | |
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— | 25 |
(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 services as they may determine. | |
(8) Sections 99 and 100 apply in the case of a direction under this section as they | |
apply in the case of a direction under section 97, but as if references in section | 30 |
100(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 | |
of conditions set under section 117 to the extent that— | |
(a) in the case of a previous notification given to that person under section | 35 |
section 91 (as applied by section 120), OFCOM have determined for the | |
purposes of section 92(2) or 93(2) (as so applied) that such a | |
contravention did occur; and | |
(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 | 40 |
that person in respect of contraventions of a condition set under section | |
117. | |
(10) For the purposes of this section the seriousness of repeated contraventions of | |
conditions set under section 117 has to be determined by reference to the | |
seriousness of the contraventions of the approved code or order by reference | 45 |
to which the conditions have effect. | |
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Offences relating to networks and services | |
122 Dishonestly obtaining electronic communications services | |
(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 | 5 |
provision of that service, | |
is guilty of an offence. | |
(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 | 10 |
the UK). | |
(3) 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; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | 15 |
five years or to a fine, or to both. | |
123 Possession or supply of apparatus etc. for contravening s. 122 | |
(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 | 20 |
(b) in connection with obtaining such a service. | |
(2) A person is guilty of an offence if— | |
(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 | 25 |
person to whom it is supplied or offered fall within subsection (3). | |
(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 | 30 |
of such a service; | |
(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 | 35 |
obtaining of a service mentioned in section 297(1) of the Copyright, Designs | |
and Patents Act 1988. | |
(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; | 40 |
and | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
five years or to a fine, or to both. | |
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(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. | |
124 Improper use of public electronic communications network | |
(1) A person is guilty of an offence if he— | |
(a) sends by means of a public electronic communications network a | 5 |
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. | |
(2) A person is guilty of an offence if, for the purpose of causing annoyance, | |
inconvenience or needless anxiety to another, he— | 10 |
(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 | |
(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 | 15 |
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 | |
providing a programme service (within the meaning of the Broadcasting Act | |
1990 (c. 42)). | 20 |
Persistent misuse of network or service | |
125 Notification of misuse of networks and services | |
(1) Where OFCOM determine that there are reasonable grounds for believing that | |
a person has persistently misused an electronic communications network or | |
electronic communications services, they may give that person a notification | 25 |
under this section. | |
(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 | 30 |
(c) specifies the period during which the person notified has an | |
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. | 35 |
(4) A case is an urgent case for the purposes of subsection (3) if OFCOM | |
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. | 40 |
(5) For the purposes of this Chapter a person misuses an electronic | |
communications network or electronic communications service if— | |
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(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 | |
effect of which is to cause another person unnecessarily to suffer | 5 |
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 | |
misuse represents— | 10 |
(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 | |
occasions constitutes persistent misuse for the purposes of this Chapter, each | 15 |
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 | |
occasions; and | 20 |
(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 | |
the order is not to be treated for the purposes of this Chapter as a misuse of an | 25 |
electronic communications network or electronic communications service. | |
126 Enforcement notifications for stopping persistent misuse | |
(1) This section applies where— | |
(a) a person (“the notified misuser”) has been given a notification under | |
section 125; | 30 |
(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— | 35 |
(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— | 40 |
(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— | 45 |
(a) securing that his misuse is brought to an end and is not repeated, and | |
(b) remedying the consequences of the notified misuse, | |
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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. | |
(5) It shall be the duty of a person to whom an enforcement notification has been | |
given to comply with it. | 5 |
(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 | |
Court of Session Act 1988 (c. 36); or | |
(c) for any other appropriate remedy or relief. | 10 |
(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 | |
(b) in respect of annoyance, inconvenience or anxiety to which he has been | |
put. | 15 |
127 Penalties for persistent misuse | |
(1) This section applies (in addition to section 126) where— | |
(a) a person (“the notified misuser”) has been given a notification under | |
section 125; | |
(b) OFCOM have allowed the notified misuser an opportunity of making | 20 |
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 | |
of the notified respects, persistently misused an electronic communications | |
network or electronic communications service. | 25 |
(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. | |
(4) The amount of a penalty imposed is to be such amount not exceeding £5,000 as | |
OFCOM determine to be— | 30 |
(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— | |
(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 | 35 |
and is not repeated; and | |
(c) any steps taken by him for remedying the consequences of the notified | |
misuse. | |
(6) Where OFCOM impose a penalty on a person under this section, they shall— | |
(a) notify the person penalised; and | 40 |
(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— | |
(a) must be paid to OFCOM; and | |
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