Communications Act 2003 (c. 21)

(The document as of February, 2008)

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(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 in subsection (1) being satisfied; and

(3) A direction under this section is--

(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--

(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--

(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 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

(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--

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

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

(8) Sections 102 and 103 apply in the case of a direction under this section as they apply in the case of a direction under section 100, but as if references in section 103(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 120 to the extent that--

(a) in the case of a previous notification given to that person under section section 94 (as applied by section 123), OFCOM have determined for the purposes of section 95(2) or 96(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 that person in respect of contraventions of a condition set under section 120.

(10) For the purposes of this section the seriousness of repeated contraventions of conditions set under section 120 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

125 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 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 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 five years or to a fine, or to both.

126 Possession or supply of apparatus etc. for contravening s. 125

(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--

(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).

(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;

(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 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

(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.

127 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 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--

(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

(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 providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

Persistent misuse of network or service

128 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 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

(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.

(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.

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

129 Enforcement notifications for stopping persistent misuse

(1) This section applies where--

(a) a person ("the notified misuser") has been given a notification under section 128;

(b) OFCOM have allowed the notified misuser an opportunity of making representations about the matters notified; and

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

(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--

(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--

(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.

(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 Court of Session Act 1988 (c. 36); or

(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.

130 Penalties for persistent misuse

(1) This section applies (in addition to section 129) where--

(a) a person ("the notified misuser") has been given a notification under section 128;

(b) OFCOM have allowed the notified misuser an opportunity of making representations about the matters notified; and

(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.

(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--

(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 and is not repeated; and

(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--

(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 125 to 127 and to have a penalty imposed on him under this section in respect 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) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

131 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 128 to 130.

(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 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 128 to 130, to have regard to the statement for the time being in force under this section.

Powers to deal with emergencies

132 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

(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.

(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--

(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 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 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

(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--

(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 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), 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 (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.

(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.

133 Enforcement of directions under s. 132

(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 132; 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;

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

(3) The duty of a person to comply with a condition of a direction under section 132 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--

(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

(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.

(6) Sections 94 to 99 apply in relation to a contravention of conditions imposed by a direction under section 132 as they apply in relation to a contravention of conditions set under section 45.

Restrictions in leases and licences

134 Restrictions in leases and licences

(1) This section applies where provision contained in a lease, licence or other agreement relating to premises has the effect of imposing on the occupier a prohibition or restriction under which his choice of--

(a) the person from whom he obtains electronic communications services, or particular electronic communications services, or

(b) the person through whom he arranges to be provided with electronic communications services, or particular electronic communications services,

is confined to a person with an interest in the premises, to a person selected by a person with such an interest or to persons who are one or the other.

(2) This section also applies where--

(a) provision contained in a lease for a year or more has the effect of imposing any other prohibition or restriction on the lessee with respect to an electronic communications matter; or

(b) provision contained in an agreement relating to premises to which a lease for a year or more applies has the effect of imposing a prohibition or restriction on the lessee with respect to such a matter.

(3) A provision falling within subsection (1) shall have effect--

(a) as if the prohibition or restriction applied only where the lessor, licensor or other party to the agreement has not given his consent to a departure from the requirements imposed by the prohibition or restriction; and

(b) as if the lessor, licensor or other party were required not to withhold that consent unreasonably.

(4) A provision falling within subsection (2)(a) or (b) shall have effect--

(a) in relation to things done inside a building occupied by the lessee under the lease, or

(b) for purposes connected with the provision to the lessee of an electronic communications service,

as if the prohibition or restriction applied only where the lessor has not given his consent in relation to the matter in question and as if the lessor were required not to withhold that consent unreasonably.

(5) Where (whether by virtue of this section or otherwise) a provision falling within subsection (1) or (2) imposes a requirement on a lessor, licensor or party to an agreement not unreasonably to withhold his consent--

(a) in relation to an electronic communications matter, or

(b) to the obtaining by the occupier of premises of an electronic communications service from or through a particular person,

the question whether the consent is unreasonably withheld has to be determined having regard to all the circumstances and to the principle that no person should unreasonably be denied access to an electronic communications network or to electronic communications services.

(6) OFCOM may by order provide for this section not to apply in the case of such provisions as may be described in the order.

(7) References in this section to electronic communications matters are references to--

(a) the provision of an electronic communications network or electronic communications service;

(b) the connection of electronic communications apparatus to a relevant electronic communications network or of any such network to another; and

(c) the installation, maintenance, adjustment, repair, alteration or use for purposes connected with the provision of such a network or service of electronic communications apparatus.

(8) In this section--

"alteration" has the same meaning as in the electronic communications code;
"lease" includes--
(a)
a leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy, and
(b)
in Scotland, a sub-lease and an agreement to grant a sub-lease,

and "lessor" and "lessee" are to be construed accordingly;
"relevant electronic communications network" means--
(a)
a public electronic communications network that is specified for the purposes of this section in an order made by the Secretary of State; or
(b)
an electronic communications network that is, or is to be, connected (directly or indirectly) to such a network.

(9) This section applies to provisions contained in leases, licences or agreements granted or entered into before the commencement of this section to the extent only that provision to that effect is contained in an order made by OFCOM.

(10) This section is not to be construed as affecting the operation of paragraph 2(3) of the electronic communications code (lessees etc. bound by rights granted under code by owners).

(11) The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(12) Section 403 applies to the powers of OFCOM to make orders under this section.

(13) 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.

Information provisions

135 Information required for purposes of Chapter 1 functions

(1) OFCOM may require a person falling within subsection (2) to provide them with all such information as they consider necessary for the purpose of carrying out their functions under this Chapter.

(2) The persons falling within this subsection are--

(a) a communications provider;

(b) a person who has been a communications provider;

(d) a person, other than a communications provider, to whom a universal service condition applies or has applied;

(e) a person who supplies electronic communications apparatus;

(f) a person not falling within the preceding paragraphs who appears to OFCOM to have information required by them for the purpose of carrying out their functions under this Chapter.

(3) The information that may be required by OFCOM under subsection (1) includes, in particular, information that they require for any one or more of the following purposes--

(a) ascertaining whether a contravention of a condition or other requirement set or imposed by or under this Chapter has occurred or is occurring;

(b) ascertaining or verifying the charges payable by a person under section 38;

(c) ascertaining whether a provision of a condition set under section 45 which is for the time being in force continues to be effective for the purpose for which it was made;

(d) ascertaining or verifying amounts payable by virtue of a condition falling within section 51(1)(d);

(e) making a designation in accordance with regulations made under section 66;

(f) carrying out a review under section 66 or 70;

(g) identifying markets and carrying out market analyses in accordance with, or for the purposes of, any provision of this Chapter;

(h) ascertaining whether a question has arisen that gives rise to their duty under section 105;

(i) considering a matter in exercise of that duty;

(j) statistical purposes connected with the carrying out of any of OFCOM's functions under this Chapter.

(4) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.

(5) The powers in this section are subject to the limitations in section 137.

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