Digital Economy Bill (HL Bill 80)

(a) revoke a designation under this section;

(b) designate one or more other persons in place of any person or persons
designated under this section.

(3) The Secretary of State’s power to designate a person under this section
5includes a power to designate the holder for the time being of any office or
employment specified in the notice by which the designation is made.

(4) The Secretary of State must not make a designation under this section unless
satisfied that arrangements will be maintained by the age-verification
regulator for appeals—

(a) 10by a person on whom a financial penalty has been imposed under
section 20(1) or (10), against the imposition of that penalty;

(b) by a person to whom an enforcement notice has been given under
section 20(2), against the giving of that notice; and

(c) by a person identified as the non-complying person in a notice given
15under section 22, against the giving of that notice.

(d) by an internet service provider to whom a notice has been given under
section 23(1), against the giving of that notice; and

(e) by a person identified as the non-complying person in a notice given to
an internet service provider under section 23(1), against the giving of
20that notice.

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

(6) The 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) 25Grants 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) The Secretary of State must lay particulars of any proposed designation under
30section 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) If either House resolves within that period that the Secretary of State should
35not 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) For the purposes of subsection (2)—

(a) 40where 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) in reckoning any period of 40 days, no account is to be taken of any time
45during 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
provide it with any information which it requires for the purpose of exercising,
or deciding whether to exercise, any function under this Part.

(2) 5The 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) A “relevant person” is

(a) an internet service provider, or

(b) 10a 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) the form and manner in which the information must be provided; and

(b) 15the time at which, or period within which, the information must be
provided.

(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 20Enforcement of sections 15 and 19

(1) The 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
25section 19.

(2) The 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
30opportunity to make representations about why that determination should not
be 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) 35give an enforcement notice under subsection (2) without also imposing
a 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) 40the limitation period in respect of the contravention has expired.

(6) For 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
which the age-verification regulator became aware of the
contravention.

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

(a) 5specifies the determination made by the age-verification regulator
under subsection (2); and

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

(8) An enforcement notice must—

(a) 10include reasons for the age-verification regulator’s decision to give the
notice; and

(b) fix 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
15impose a financial penalty on that person.

(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
20Court 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
25(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) 30The 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) 35£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) 40where 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
accounting 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) 5In deciding the amount of the financial penalty, the age-verification regulator
must have regard to the guidelines or revised guidelines in force under this
section.

(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) 10The notice must—

(a) fix a time by which the penalty must be paid by that person to the age-
verification 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
15that subsection.

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

(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) 20The age-verification regulator may revise the guidelines from time to time and
must publish any revised guidelines.

(11) The 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) 25Before publishing the guidelines or any revised guidelines, the age-verification
regulator must consult—

(a) the 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
30age-verification regulator must consult the Secretary of State.

(14) In subsection (3)—

• “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;

• 35“turnover”, in relation to a person, means the amounts derived from the
  provision of goods and services by that person, after deduction of trade
  discounts, 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
40service providers and ancillary service providers

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

(a) contravening section 15(1); or

(b) making prohibited material available on the internet to persons in the
45United Kingdom,

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

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

(a) identify the non-complying person in such manner as the age-
5verification regulator considers appropriate;

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

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

(3) When the age-verification regulator gives notice under this section, it must
10inform the non-complying person, by notice, that it has done so.

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

(a) the 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
15arousal, and

(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) 20that 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) 25In 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) 30In 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) 35advertise, 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
40subsections (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) 45“material”;

(c) “video work”;

(d) “video works authority”.

23 Age-verification regulator’s power to direct internet service providers to
block access to material

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

(a) 5contravening section 15(1), or

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

it may give a notice under this subsection to any internet service provider.

(2) The notice must—

(a) 10identify 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) require the internet service provider—

(i) to take steps specified in the notice, or

(ii) 15(if no such steps are specified) to put in place arrangements that
appear to the provider to be appropriate,

so as to prevent persons in the United Kingdom from being able to
access the offending material using the service it provides;

(d) provide such information as the regulator considers may assist the
20internet service provider in complying with any requirement imposed
by the notice;

(e) provide information about the arrangements for appeals mentioned in
section 17(4)(d);

(f) provide such further particulars as the regulator considers appropriate.

(3) 25The steps that may be specified or arrangements that may be put in place under
subsection (2)(c) include steps or arrangements that will or may also have the
effect of preventing persons in the United Kingdom from being able to access
material other than the offending material using the service provided by the
internet service provider.

(4) 30The notice may require the internet service provider to provide information
specified in the notice, in a manner specified in the notice, to persons in the
United Kingdom who—

(a) attempt to access the offending material using the service provided by
the provider, and

(b) 35are prevented from doing so as a result of steps taken, or arrangements
put in place, by the provider pursuant to the notice.

(5) The notice may specify the time by which the internet service provider must
have complied with any requirement imposed by the notice.

(6) The notice may be varied or revoked by a further notice under subsection (1).

(7) 40The age-verification regulator may publish, in whatever way it considers
appropriate, a notice given under subsection (1).

(8) It is the duty of an internet service provider to comply with any requirement
imposed on it by a notice under subsection (1).

(9) That duty is enforceable in civil proceedings by the age-verification
45regulator—

(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 relief or remedy.

(10) Before giving a notice to an internet service provider under subsection (1), the
5age-verification regulator must—

(a) inform the Secretary of State of its decision to do so, and

(b) give notice of that decision to the non-complying person under this
subsection.

(11) A notice under subsection (10) (other than notice of a decision to revoke a
10notice under subsection (1)) must—

(a) where subsection (1)(a) applies—

(i) say why the regulator considers that the non-complying person
is contravening section 15(1), and

(ii) indicate what steps the regulator considers might be taken by
15the non-complying person to comply with that section;

(b) where subsection (1)(b) applies, say why the regulator considers that
the offending material is prohibited material;

(c) indicate the circumstances in which the regulator may consider
revoking the notice it has decided to give under subsection (1) and the
20manner in which the non-complying person may notify the regulator of
steps taken to satisfy the regulator that the notice ought to be revoked;

(d) provide information about the arrangements for appeals mentioned in
section 17(4)(e).

(12) In this section—

• 25“the offending material”, in relation to a non-complying person, means
  the material which the age-verification regulator considers is—

  (a)

  being made available in contravention of section 15(1) by the
  non-complying person; or

  (b)

  prohibited material which the non-complying person is making
  30available on the internet to persons in the United Kingdom;

• “prohibited material” has the meaning given in section 22(4).

24 Exercise of functions by the age-verification regulator

(1) The age-verification regulator may, if it thinks fit, choose to exercise its powers
under sections 20, 22 and 23 principally in relation to persons who, in the age-
35verification 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) generate a large amount of turnover by doing so.

(2) 40The 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) carry out, commission or support (financially or otherwise) any
45research which it considers appropriate for the purposes of exercising,
or considering whether to exercise, any function under this Part;

(c) publish the results of that research.

25 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, 22 or 23 by sending the notice to that person—

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

(b) 5by email to that person’s email address.

(2) In the case of a notice given under section 19, 22(1) or 23(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) where that person is a body corporate, the address of its registered
10office 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) In the case of a notice given under section 20, 21, 22(3) or 23(10), a person’s
15proper 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) any director or other officer of that body corporate.

(4) 20For 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
which the age-verification regulator believes, on reasonable grounds,
25that 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, 22 or 23 sent to a person by email is to be taken
to have been given to that person 48 hours after it is sent.

(6) 30In 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
Kingdom,

35the 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
  whatever name called;

• 40“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.

26 Interpretation of this Part

In this Part—

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

Digital Economy BillPage 28

• “internet service provider” means a provider of an internet access service
  within the meaning given in Article 2 of Regulation (EU) 2015/2120 of
  the European Parliament and of the Council of 25 November 2015;

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

5Part 4 Intellectual Property

27 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,
10etc), for subsection (2A) substitute—

“(2A) A 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) 15either—

(i) intends 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
20risk of loss.

(2B) For 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
25permanent, and

(b) “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) 30A person (“P”) who infringes a performer’s making available right in a
recording 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) 35knows or has reason to believe that infringing the right
will 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) 40extend only to gain or loss in money, and

(ii) include 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”.

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

28 Registered designs: infringement: marking product with internet link

(1) 5Section 24B of the Registered Designs Act 1949 (exemption of innocent
infringer 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
10internet link”.

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

29 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
20retransmitted by cable);

(b) paragraphs 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) 25in section 134, subsection (3A) and, in subsection (1), the words
“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) 30in the Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),
regulation 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
35instrument.

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