Digital Economy Bill (HL Bill 80)

(4) For the purposes of this section—

(a) the gross revenue of a person for a period, and

(b) the extent to which a part of a person’s gross revenue is
attributable to the provision of any dynamic spectrum access
5service,

is to be ascertained in accordance with such principles as may be set out
in a statement made by OFCOM.

(5) Such a statement may provide for the amount of a person’s gross
revenue for an accounting period that is current when the amount falls
10to be calculated to be taken to be the amount estimated by OFCOM, in
accordance with the principles set out in the statement, to be the
amount that will be the person’s gross revenue for that period.

(6) OFCOM may revise a statement made under subsection (4) from time
to time.

(7) 15A statement made or revised under this section may set out different
principles for different cases.

(8) Before making or revising a statement under this section, OFCOM must
consult the Secretary of State and the Treasury.

(9) OFCOM must—

(a) 20publish the statement made under subsection (4) and every
revision of it, and

(b) send a copy of the statement and of every such revision to the
Secretary of State,

and the Secretary of State must lay copies of the statement and of every
25such revision before each House of Parliament.

(10) In this section—

• “accounting period”, in relation to a person, means a period in
  respect of which accounts of the undertaking carried on by the
  person are prepared or, if one such period is comprised in
  30another, whichever of those periods is or is closest to a 12 month
  period;

• “gross revenue”, in relation to a person, means the gross revenue
  of an undertaking carried on by that person.

53I Requirement to provide information about gross revenue

(1) 35OFCOM may require a person to whom a notification has been given
under section 53E to provide them with all such information as they
may require for the purpose of ascertaining the person’s gross revenue.

(2) A demand for information required under this section must be
contained in a notice given to the person from whom the information is
40required.

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

(4) Sections 53K to 53M apply for the purposes of a requirement imposed
45under this section as they apply for the purposes of a requirement
imposed under section 53J.

Information

53J Provision of information to persons registered under section 53A

(1) OFCOM may require a person falling within subsection (2) to provide
a person registered under section 53A with all such information as
5OFCOM consider necessary and proportionate for the purpose of
enabling the registered person to avoid undue interference with
wireless telegraphy.

(2) The persons falling within this subsection are—

(a) a person who is using, or has established or used, a wireless
10telegraphy station, and

(b) a person who is using, or has installed or used, wireless
telegraphy apparatus.

(3) A demand for information required under this section must be
contained in a notice given to the person from whom the information is
15required.

(4) The notice must—

(a) describe the required information,

(b) specify the manner and form in which it is to be provided,

(c) specify when and (if appropriate) how frequently it is to be
20provided, and

(d) specify to whom it is to be provided.

53K Notification of contravention of information requirements

(1) Where OFCOM determine that there are reasonable grounds for
believing that a person is contravening, or has contravened, a
25requirement imposed under section 53J, they may give the 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 requirement and contravention in respect of which
30the determination has been made,

(c) specifies the period during which the person notified has an
opportunity to make representations, and

(d) specifies any penalty which OFCOM are minded to impose in
accordance with section 53L.

(3) 35A notification under this section—

(a) may be given in respect of more than one contravention, and

(b) if it is given in respect of a continuing contravention, may be
given in respect of any period during which the contravention
has continued.

(4) 40Where a notification under this section has been given to a person in
respect of a contravention of a requirement, OFCOM may give a further
notification in respect of the same contravention if, and only if—

(a) the contravention is one occurring after the time of the giving of
the earlier notification,

(b) the contravention is a continuing contravention and the
subsequent notification is in respect of so much of a period as
falls after a period to which the earlier notification relates, or

(c) the earlier notification has been withdrawn without a penalty
5having been imposed in respect of the notified contravention.

53L Penalties under section 53K

(1) This section applies where a person is given a notification under section
53K that specifies a proposed penalty.

(2) Where the notification relates to more than one contravention, a
10separate penalty may be specified in respect of each contravention.

(3) Where the notification relates to a continuing contravention, no more
than one penalty may be specified in respect of the period of
contravention specified in the notification.

(4) But, in relation to a continuing contravention, a penalty may be
15specified in respect of each day on which the contravention continues
after—

(a) the giving of a confirmation decision under section 53M(4)(c)
which requires immediate action, or

(b) the expiry of any period specified in the confirmation decision
20for complying with a requirement so specified.

(5) The amount of a penalty specified under subsection (4) is to be such
amount, not exceeding £20,000 per day, as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the contravention in respect of which it is
25imposed.

(6) The amount of any other penalty specified under this section is to be
such amount, not exceeding £2 million, as OFCOM determine to be
both—

(a) appropriate; and

(b) 30proportionate to the contravention in respect of which it is
imposed.

53M Enforcement of notification under section 53K

(1) This section applies where—

(a) a person has been given a notification under section 53K,

(b) 35OFCOM have allowed the person an opportunity to make
representations about the matters notified, and

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

(2) OFCOM may—

(a) 40give the person a decision (a “confirmation decision”)
confirming the imposition of requirements in accordance with
the notification under section 53K, or

(b) inform the person that they are satisfied with the person’s
representations and that no further action will be taken.

(3) 45OFCOM may not give a confirmation decision to a person unless, after
considering any representations, they are satisfied that the person has,

in one or more of the respects notified, been in contravention of a
requirement notified under section 53K.

(4) A confirmation decision—

(a) must be given to the person without delay,

(b) 5must include reasons for the decision,

(c) may require immediate action by the person to comply with a
requirement notified under section 53K, or may specify a period
within which the person must comply with the requirement,

(d) may require the person to pay—

(i) 10the penalty specified in the notification under section
53L, or

(ii) such lesser penalty as OFCOM consider appropriate in
the light of the person’s representations or steps taken
by the person to comply with the requirement or
15remedy the consequences of the contravention, and

(e) may specify the period within which any such penalty is to be
paid.

(5) It is the duty of the person to comply with any requirement imposed by
a confirmation decision.

(6) 20That duty is 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, or

(c) for any other appropriate remedy or relief.

(7) 25A penalty imposed by a confirmation decision—

(a) must be paid to OFCOM, and

(b) if not paid within the period specified by them, is to be
recoverable by them accordingly.”

(2) In section 111(3) of that Act (exemptions from general restriction on
30disclosure), after paragraph (c) insert—

“(ca) by OFCOM to a person registered under section 53A for the
purpose of providing the dynamic spectrum access service in
respect of which the person is registered;”.

(3) In section 115(1) of that Act (general interpretation), at the appropriate place
35insert—

• ““dynamic spectrum access service” has the meaning given by
  section 53A;”.

(4) In section 400(1) of the Communications Act 2003 (destination of fees and
penalties)—

(a) 40in paragraph (d), before “of that Act” insert “or Part 2A”, and

(b) after that paragraph insert—

“(da) an amount paid to OFCOM in respect of a fee charged
under section 53D of that Act;”.

(5) In Schedule 8 to that Act (decisions not subject to appeal)—

(a) 45in paragraph 40(a), after “45” insert “, 53A(7), 53D”,

(b) in paragraph 41, for “or 24” substitute “, 24 or 53D(6)”, and

(c) in paragraph 43, omit the “or” after paragraph (a) and at the end of
paragraph (b) insert “, or

“(c) section 53H.”

Other regulation of spectrum

9 5Statement of strategic priorities

In Part 1 of the Wireless Telegraphy Act 2006, after section 7 insert—

“Statement of strategic priorities

7A Statement of strategic priorities

(1) The Secretary of State may designate a statement for the purposes of
10this section if the requirements set out in section 7C (Parliamentary
procedure) are satisfied.

(2) The statement is a statement prepared by the Secretary of State that sets
out strategic priorities of Her Majesty’s government relating to the
management of the radio spectrum in the United Kingdom.

(3) 15The statement may, in particular, set out—

(a) particular outcomes identified with a view to achieving the
strategic priorities, and

(b) the roles and responsibilities of persons (whether the Secretary
of State, OFCOM or other persons) who have functions to which
20the strategic priorities relate.

(4) This section does not restrict the Secretary of State’s power under
section 5 of this Act or section 5 of the Communications Act 2003.

(5) A statement designated under subsection (1) may be amended
(including by replacing the whole or part of the statement with new
25content) by a subsequent statement designated under that subsection,
and this section and sections 7B and 7C apply in relation to any such
subsequent statement as in relation to the original statement.

7B Duties of OFCOM in relation to statement

(1) This section applies where a statement has been designated under
30section 7A(1).

(2) The Secretary of State must—

(a) publish the statement in such manner as the Secretary of State
considers appropriate, and

(b) take such other steps as the Secretary of State considers
35appropriate for the purpose of bringing it to OFCOM’s
attention.

(3) OFCOM must have regard to the statement when carrying out their
radio spectrum functions.

(4) The duty imposed by subsection (3) does not affect the obligation of
40OFCOM to comply with any other duty or requirement (whether
arising under this or any other Act or otherwise).

(5) If required to do so by the Secretary of State OFCOM must, within such
period as the Secretary of State may direct—

(a) explain in writing to the Secretary of State how they propose to
comply with the duty imposed by subsection (3), and

(b) 5publish a copy of that explanation in such manner as OFCOM
consider appropriate.

(6) The Secretary of State must lay a copy of that explanation before
Parliament.

7C Parliamentary procedure for designation of statement

(1) 10This section sets out the requirements that must be satisfied in relation
to a statement before the Secretary of State may designate it under
section 7A(1).

(2) Before designating the statement the Secretary of State must lay a draft
of the statement before Parliament.

(3) 15The Secretary of State must then wait until the end of the 40-day period
and may not designate the statement if, within that period, either
House of Parliament resolves not to approve it.

(4) “The 40-day period” is the period of 40 days beginning with the day on
which the draft is laid before Parliament (or, if it is not laid before each
20House on the same day, the later of the days on which it is laid).

(5) When calculating the 40-day period, ignore any period during which
Parliament is dissolved or prorogued or during which both Houses are
adjourned for more than 4 days.”

10 Penalties for contravention of wireless telegraphy licences

(1) 25The Wireless Telegraphy Act 2006 is amended as follows.

(2) In section 42 (special procedure for contraventions by multiplex licence
holders), in subsection (1)—

(a) in paragraph (a), for “general multiplex” substitute “wireless
telegraphy”, and

(b) 30omit paragraph (b).

(3) At the end of that section insert—

“(7) A contravention is a “relevant multiplex contravention” for the
purposes of section 43 if—

(a) it is a contravention of terms, provisions or limitations of a
35general multiplex licence, and

(b) the contravention relates only to terms, provisions or
limitations that fall within section 9(4)(b) or (c).”

(4) In the heading of that section, for “multiplex licence holders” substitute
“holders of wireless telegraphy licences”.

(5) 40In section 43 (amount of penalty under section 42), in subsection (1), after
“section 42” insert “for a relevant multiplex contravention (see subsection (7) of
that section)”.

(6) In that section, after subsection (2) insert—

“(2A) The amount of a penalty imposed under section 42 for a contravention
that is not a relevant multiplex contravention is to be such amount not
exceeding 10 per cent of the relevant amount of gross revenue as
5OFCOM think—

(a) appropriate; and

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

(7) In that section, in subsection (3), for “subsection (2)” substitute “this section”.

(8) 10Omit section 43A.

(9) In section 44 (relevant amount of gross revenue), in subsections (1) and (10),
omit “or 43A”.

(10) In section 400 of the Communications Act 2003 (destination of licence fees and
penalties), in subsection (1)(d), omit “or 43A”.

(11) 15In Schedule 8 to that Act (decisions not subject to appeal), at the end of
paragraph 44 insert “for a relevant multiplex contravention”.

(12) Omit section 39 of the Digital Economy Act 2010.

(13) The amendments and repeals made by this section do not apply in relation to—

(a) any contravention which takes place before the day on which this
20section comes into force, or

(b) any continuing contravention which began before that day.

11 Fixed penalties under Wireless Telegraphy Act 2006

(1) In paragraph 4(2)(a) of Schedule 4 to the Wireless Telegraphy Act 2006
(suspended enforcement period for purposes of fixed penalty notice) for “one
25month” substitute “28 days”.

(2) The amendment made by this section does not apply in relation to a fixed
penalty notice issued in respect of an offence committed before this section
comes into force.

12 Search warrants under Wireless Telegraphy Act 2006

(1) 30In section 97(3) of the Wireless Telegraphy Act 2006 (period for entering
premises under warrant) for “of three months beginning with the day after the
date of the warrant” substitute “beginning with the grant of the warrant and
ending three months after the end of the day on which the warrant is granted”.

(2) The amendment made by this section does not apply in relation to a warrant
35granted in respect of an offence committed before this section comes into force.

13 Disposal of seized property under Wireless Telegraphy Act 2006

(1) In section 101 of the Wireless Telegraphy Act 2006 (detention and disposal of
seized property), for subsection (5) substitute—

“(5) OFCOM may dispose of the property in such manner as they think fit
40if it remains in their possession after the end of the six months
immediately following—

(a) the end of the period of detention authorised by subsection
(2)(a), or

(b) if subsection (2)(b) applies, the end of the day on which the
proceedings referred to in that provision were concluded.”

(2) 5The amendment made by this section does not apply where the relevant
offence is one committed before this section comes into force.

(3) The relevant offence—

(a) where section 101(1)(a) of the Wireless Telegraphy Act 2006 applies, is
the offence in relation to which the warrant is granted;

(b) 10where section 101(1)(b) of that Act applies, is the offence referred to in
section 99(3) of that Act.

14 Time limits for prosecutions under Wireless Telegraphy Act 2006

(1) The Wireless Telegraphy Act 2006 is amended as follows.

(2) In section 107 (proceedings and enforcement), after subsection (3) insert—

“(3A) 15For the time limit for bringing proceedings which are for a summary
offence under section 35 and to which section 41 applies see section
41(7).

(3B) The time limit for bringing any other proceedings for a summary
offence under section 35, 58 or 66 is—

(a) 20one year from the end of the day on which the prosecutor
becomes aware of evidence which he or she considers sufficient
to justify a prosecution for the offence, or

(b) if earlier, three years from the end of the day on which the
offence was committed.

(3C) 25Section 41(7) and subsection (3B) above have effect despite—

(a) section 127 of the Magistrates’ Courts Act 1980 (time limit for
bringing proceedings for summary offences in England and
Wales),

(b) Article 19 of the Magistrates’ Courts (Northern Ireland) Order
301981 (S.I. 1981/1675 (N.I. 26)) (equivalent provision for
Northern Ireland), and

(c) section 136 of the Criminal Procedure (Scotland) Act 1995
(equivalent provision for Scotland).

(3D) In relation to proceedings in Scotland, subsection (3) of section 136 of
35the Criminal Procedure (Scotland) Act 1995 (date when proceedings
deemed to be commenced for the purposes of that section) applies also
for the purposes of section 41(7) and subsection (3B) above.”

(3) In section 41 (procedure for prosecutions)—

(a) in subsection (3)(b) for “allowed under that section” substitute
40“specified under section 39(2)(c) for making representations”;

(b) in subsection (7) for the words from “allowed” to the end substitute
“specified under section 39(2)(c).”;

(c) for subsection (8) substitute—

“(8) For further provision about prosecutions see section 107.”

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

Part 3 Online pornography

15 5Internet pornography: requirement to prevent access by persons under the
age of 18

(1) A person must not make pornographic material available on the internet on a
commercial basis to persons in the United Kingdom except in a way that
secures that, at any given time, the material is not normally accessible by
10persons under the age of 18.

(2) For the purposes of this Part, making pornographic material available on the
internet on a commercial basis includes making it available on the internet free
of charge—

(a) on or via an internet site which is operated on a commercial basis, or

(b) 15via any other means of accessing the internet which is operated or
provided on a commercial basis.

(3) The age-verification regulator (see section 17) must publish guidance about—

(a) types of arrangements for making pornographic material available that
the regulator will treat as complying with subsection (1);

(b) 20circumstances in which the regulator will treat an internet site or other
means of accessing the internet as operated or provided on a
commercial basis; and

(c) other circumstances in which the regulator will treat making
pornographic material available on the internet as done on a
25commercial basis.

(4) Regulations 17 to 20 and 22 of the Electronic Commerce (EC Directive)
Regulations 2002 (S.I. 2002/2013) apply in relation to this Part, despite
regulation 3(2) of those Regulations.

(5) For the purposes of this Part—

(a) 30making material available on the internet does not include making the
content of an on-demand programme service available on the internet
in the course of providing such a service;

(b) a means of accessing the internet does not include any device or other
equipment for doing so.

(6) 35In subsection (5), “on-demand programme service” has the meaning given by
section 368A of the Communications Act 2003.

16 Meaning of “pornographic material”

(1) In this Part “pornographic material” means any of the following—

(a) a video work in respect of which the video works authority has issued
40an R18 certificate;

(b) material that was included in a video work to which paragraph (a)
applies, if it is reasonable to assume from its nature that its inclusion
was among the reasons why the certificate was an R18 certificate;

(c) any other material if it is reasonable to assume from its nature that any
classification certificate issued in respect of a video work including it
would be an R18 certificate;

(d) a video work in respect of which the video works authority has issued
5an 18 certificate, and that it is reasonable to assume from its nature was
produced solely or principally for the purposes of sexual arousal;

(e) material that was included in a video work to which paragraph (d)
applies, if it is reasonable to assume from the nature of the material—

(i) that it was produced solely or principally for the purposes of
10sexual arousal, and

(ii) that its inclusion was among the reasons why the certificate was
an 18 certificate;

(f) any other material if it is reasonable to assume from its nature—

(i) that it was produced solely or principally for the purposes of
15sexual arousal, and

(ii) that any classification certificate issued for a video work
including it would be an 18 certificate.

(2) In this section—

• “18 certificate” means a classification certificate which—

  (a)

  20contains, pursuant to section 7(2)(b) of the Video Recordings
  Act 1984, a statement that the video work is suitable for viewing
  only by persons who have attained the age of 18 and that no
  video recording containing that work is to be supplied to any
  person who has not attained that age, and

  (b)

  25does not contain the statement mentioned in section 7(2)(c) of
  that Act that no video recording containing the video work is to
  be supplied other than in a licensed sex shop;

• “classification certificate” has the same meaning as in the Video
  Recordings Act 1984 (see section 7 of that Act);

• 30“material” means—

  (a)

  a series of visual images shown as a moving picture, with or
  without sound;

  (b)

  a still image or series of still images, with or without sound; or

  (c)

  sound;

• 35“R18 certificate” means a classification certificate which contains the
  statement mentioned in section 7(2)(c) of the Video Recordings Act
  1984 that no video recording containing the video work is to be
  supplied other than in a licensed sex shop;

• “the video works authority” means the person or persons designated
  40under section 4(1) of the Video Recordings Act 1984 as the authority
  responsible for making arrangements in respect of video works other
  than video games;

• “video work” means a video work within the meaning of the Video
  Recordings Act 1984, other than a video game within the meaning of
  45that Act.

17 The age-verification regulator: designation and funding

(1) The Secretary of State may by notice designate any person, or any two or more
persons jointly, as the age-verification regulator for the purposes of this Part.

(2) The Secretary of State may at any time by notice—