Digital Economy Bill (HL Bill 80)

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(2) Information disclosed under section 45B, 45C or 45D may not be used
by the Board for the purposes of its function under section 22 (statistical
services) except with the consent of the person who disclosed the
information.

(3) 5Where personal information is disclosed under section 45B, 45C or 45D,
the Board may not disclose the information to an approved researcher
under section 39(4)(i) except with the consent of the person who
disclosed the information.

(4) A disclosure pursuant to section 45B, 45C or 45D does not breach—

(a) 10any obligation of confidence owed by the person making the
disclosure, or

(b) any other restriction on the disclosure of information (however
imposed).

(5) The Board must prepare and publish a statement of—

(a) 15the principles to which it will have regard in exercising its
functions under sections 45B, 45C and 45D, and

(b) the procedures which it will adopt in exercising those functions.

(6) The statement must be consistent with the code of practice issued under
section 52B (data-sharing code) of the Data Protection Act 1998 (as
20altered or replaced from time to time).

(7) The Board may at any time revise the statement and, if it decides to do
so, must publish the statement as revised.

(8) In preparing or revising the statement the Board must consult—

(a) the Minister for the Cabinet Office,

(b) 25the Information Commissioner,

(c) the Scottish Ministers,

(d) the Welsh Ministers,

(e) the Department of Finance in Northern Ireland, and

(f) such other persons as the Board thinks fit.

(9) 30The fact that this section was not in force when consultation of the kind
mentioned in subsection (8) took place is to be disregarded in
determining whether there has been compliance with that subsection.

(10) After preparing or revising a statement the Board must lay the
statement, or the statement as revised, before—

(a) 35Parliament,

(b) the Scottish Parliament,

(c) the National Assembly for Wales, and

(d) the Northern Ireland Assembly.

45F Offences relating to notices under section 45C or 45D

(1) 40A person is guilty of an offence if—

(a) the person is given a notice under section 45C or 45D,

(b) the person is required to comply with the notice,

(c) the person fails to do so, and

(d) the person does not have a reasonable excuse for that failure.

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(2) A person is guilty of an offence if, in purporting to comply with a notice
under section 45C or 45D, the person—

(a) provides information which is false in a material respect, and

(b) knows that the information is false in that respect or is reckless
5as to whether it is false in that respect.

(3) A person who is guilty of an offence under subsection (1) or (2) is liable
on summary conviction—

(a) in England and Wales, to a fine, and

(b) in Scotland or Northern Ireland, to a fine not exceeding level 5
10on the standard scale.

(4) If an offence under this section is committed by a body corporate with
the consent or connivance of an officer of the body, the officer, as well
as the body, is to be treated as having committed the offence.

(5) In subsection (4) a reference to an officer of a body includes a reference
15to—

(a) a director, manager or secretary,

(b) a person purporting to act as a director, manager or secretary,
and

(c) if the affairs of the body are managed by its members, a
20member.

(6) Where an offence under this section is committed by a partnership
(whether or not a limited partnership) subsection (4) has effect, but as
if a reference to an officer of the body were a reference to—

(a) a partner, and

(b) 25a person purporting to act as a partner.

45G Code of practice on changes to data systems

(1) The Board must prepare, adopt and publish a code of practice
containing guidance on the matters to be taken into account by a public
authority in making changes to—

(a) 30its processes for collecting, organising, storing or retrieving
information, or

(b) its processes (if any) for supplying information to the Board.

(2) A public authority must have regard to any code of practice under this
section in making such changes.

(3) 35The Board may at any time revise a code of practice under this section
and, if it decides to do so, must publish the code as revised.

(4) In preparing or revising a code of practice under this section, the Board
must consult—

(a) the Minister for the Cabinet Office,

(b) 40the Scottish Ministers,

(c) the Welsh Ministers,

(d) the Department of Finance in Northern Ireland, and

(e) such other persons as the Board thinks fit.

(5) The fact that this section was not in force when consultation of the kind
45mentioned in subsection (4) took place is to be disregarded in
determining whether there has been compliance with that subsection.

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(6) After preparing or revising a code of practice under this section the
Board must lay the code, or the code as revised, before—

(a) Parliament,

(b) the Scottish Parliament,

(c) 5the National Assembly for Wales, and

(d) the Northern Ireland Assembly.

(7) The reference in subsection (1) to making changes to a process includes
introducing or removing a process.

(8) This section binds the Crown.

(9) 10The reference to the Crown in subsection (8) does not include—

(a) Her Majesty in Her private capacity,

(b) Her Majesty in right of the Duchy of Lancaster, or

(c) the Duke of Cornwall.”

69 Disclosure by the Statistics Board to devolved administrations

15After section 53 of the Statistics and Registration Service Act 2007 insert—

53A Disclosure by the Board to devolved administrations

(1) Subject to this section, the Board may disclose information held by the
Board in connection with the exercise of any of its functions to a
devolved authority.

(2) 20In this section “devolved authority” means—

(a) a person who is a part of the Scottish Administration,

(b) the Welsh Ministers, or

(c) the Department of Finance in Northern Ireland.

(3) Information may only be disclosed under this section for the purposes
25of any or all of the statistical functions of a devolved authority.

(4) Information may only be disclosed under this section in response to a
request in writing by a devolved authority which specifies—

(a) the information which is sought, and

(b) the purposes for which it is sought.

(5) 30A request under subsection (4) may request information to be disclosed
on more than one date specified in the notice within a period specified
in the notice.

(6) Information may be disclosed under this section only if—

(a) the Board is satisfied that the information is required for the
35purposes of the statistical functions of the devolved authority
which are specified in the request,

(b) the Board is satisfied that the information will not be used for
any other purpose, and

(c) if the information was obtained by the Board from a public
40authority, the authority consents to the disclosure.

(7) The Board may—

(a) disclose information under this section subject to conditions to
be met by the devolved authority;

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(b) from time to time modify conditions subject to which
information has been disclosed;

(c) in the case of information which it is disclosing in response to a
request to which subsection (5) applies, cease to disclose
5information in response to the request if any of the conditions
are breached.

(8) A devolved authority may only use information disclosed under this
section for the purposes for which it was disclosed.

(9) In the application of section 39 to personal information which has been
10disclosed to a devolved authority under this section, paragraphs (c)
and (i) of subsection (4) of that section do not apply.

(10) This section does not authorise the making of a disclosure which
would—

(a) breach any obligation of confidence owed by the Board,

(b) 15contravene the Data Protection Act 1998,

(c) be prohibited by Part 1 of the Regulation of Investigatory
Powers Act 2000, or

(d) breach any other restriction on the disclosure of information
(however imposed).

(11) 20Nothing in this section affects the scope of the powers in sections 51 to
53.”

Part 6 Miscellaneous

OFCOM: reports etc

70 25OFCOM reports on infrastructure etc

(1) The Communications Act 2003 is amended as follows.

(2) After section 134A insert—

134AA Additional OFCOM reports on infrastructure etc

(1) OFCOM may prepare reports dealing with—

(a) 30any of the electronic communications network matters listed in
section 134B(1);

(b) any of the electronic communications services matters listed in
section 134B(2).

(2) OFCOM may publish a report under this section in such manner as
35they consider appropriate for bringing it to the attention of persons
who, in their opinion, are likely to have an interest in it.

(3) Before publishing a report under this section OFCOM must consider—

(a) whether any of the information to be contained in it is
information that they could refuse to disclose in response to a
40request under the Freedom of Information Act 2000, and

(b) if so, whether that information should be excluded from the
report.

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(4) This section does not affect OFCOM’s duty to prepare reports under
section 134A.

134AB Publication of information required for purpose of preparing reports

(1) OFCOM may publish—

(a) 5any relevant section 135 information, and

(b) any information derived from relevant section 135 information.

(2) Before publishing information under this section OFCOM must
consider—

(a) whether any of the information that they propose to publish is
10information that they could refuse to disclose in response to a
request under the Freedom of Information Act 2000, and

(b) if so, whether that information should be published.

(3) In this section “relevant section 135 information” means information
required by OFCOM under section 135 for the purpose of preparing a
15report under section 134A or 134AA.”

(3) In section 134B (networks and services matters)—

(a) in subsections (1) and (2), for “section 134A” substitute “sections 134A
and 134AA”, and

(b) in subsection (4), after “134A” insert “or 134AA”.

(4) 20In section 135(3) (information required for purposes of OFCOM functions),
after paragraph (ic) insert—

(ica) preparing a report under section 134AA;”.

(5) In section 393(6)(a) (general restrictions on disclosure of information), after
“26” insert “, 134AB”.

71 25Comparative overviews of quality and prices

(1) The Communications Act 2003 is amended as follows.

(2) After section 134C insert—

“Comparative overviews
134D Comparative overviews of quality and prices

(1) 30OFCOM may, in the interest of the end-users of public electronic
communications services, carry out comparative overviews of the
quality and prices of such services.

(2) OFCOM may publish a comparative overview carried out under this
section in such manner as they consider appropriate for bringing it to
35the attention of persons who, in their opinion, are likely to have an
interest in it.”

(3) In section 136 (information required for related purposes)—

(a) in subsection (1) for “specified in subsection (2)” substitute “of carrying
out comparative overviews under section 134D”, and

(b) 40omit subsection (2).

(4) In section 393(6) (general restrictions on disclosure of information), after

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paragraph (b) insert—

(ba) limits the matters that may be published as part of a
comparative overview carried out by OFCOM under section
134D;”.

5OFCOM: information

72 Conditions about allocation of telephone numbers

In section 58 of the Communications Act 2003 (conditions about allocation and
adoption of telephone numbers), after subsection (2) insert—

(2A) General conditions may also require a communications provider to
10whom telephone numbers have been allocated—

(a) to provide OFCOM with any information that was not required
to accompany the application for allocation of the numbers
when it was made but which is now required to accompany
such applications;

(b) 15to inform OFCOM of any changes to information that
accompanied the application for allocation of the numbers or
that has been provided in accordance with a condition set under
paragraph (a);

(c) to inform OFCOM of any proposal by the provider to cease to
20provide an electronic communications network or electronic
communications service;

(d) to inform OFCOM of any circumstances or events of a
description specified in the condition.”

73 Provision of information to OFCOM

(1) 25Section 135 of the Communications Act 2003 (information required for
purposes of functions) is amended as follows.

(2) For subsection (1) substitute—

(1) OFCOM may require a person falling within subsection (2) to provide
them with all such information as they consider necessary for the
30purpose of carrying out their functions under—

(a) section 14(1),

(b) section 26, so far as relating to matters in relation to which they
have functions under this Chapter, or

(c) this Chapter.”

(3) 35In the heading for “Chapter 1” substitute “certain OFCOM”.

74 Information required from communications providers

(1) The Communications Act 2003 is amended as follows.

(2) After section 137 insert—

137A Information required from communications providers

(1) 40OFCOM may require a communications provider—

(a) to publish any information held by the provider, or

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(b) to provide any such information to OFCOM for publication by
OFCOM.

(2) The information that OFCOM may require the communications
provider to publish or provide under subsection (1) includes
5information that OFCOM require the provider to produce, generate or
obtain for that purpose.

(3) For that purpose OFCOM may, in particular, require the
communications provider—

(a) to collect or retain any information that the provider would not
10otherwise collect or retain,

(b) to process, collate or analyse any information held by the
provider, or

(c) to answer any questions.

(4) The power conferred by this section may be exercised only—

(a) 15in connection with OFCOM’s functions—

(i) under Part 1, so far as relating to electronic
communications, or

(ii) under this Chapter, and

(b) in such a way as is proportionate to the use to which the
20information is to be put in connection with those functions.

(5) The power conferred by this section is to be exercised by a demand,
contained in a notice served on the communications provider, that—

(a) describes the information required to be published or provided,
and

(b) 25sets out OFCOM’s reasons for requiring it to be published or
provided.

(6) Before serving the notice on the communications provider, OFCOM
must—

(a) serve a draft of the notice on the provider and inform the
30provider of the period for making representations, and

(b) consider any representations made by the provider within that
period which—

(i) identify restrictions on the disclosure or publication of
information that would or might prevent the provider
35from complying with the notice, or

(ii) otherwise relate to the practicability of complying with
it.

(7) The communications provider must publish or provide the information
required by the notice in such manner and form, in accordance with
40such other requirements, and within such reasonable period, as may be
specified by OFCOM.

(8) Where OFCOM publish anything provided to them pursuant to
subsection (1)(b) they must do so in such manner and form as they
consider appropriate.

137B 45Section 137A: confidential matters

(1) In exercising functions under section 137A, OFCOM must have regard
to the need to exclude from publication, so far as that is practicable, the

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matters which are confidential in accordance with subsections (2) and
(3).

(2) A matter is confidential under this subsection if—

(a) it relates specifically to the affairs of a particular body, and

(b) 5publication of that matter would or might, in OFCOM’s
opinion, seriously and prejudicially affect the interests of that
body.

(3) A matter is confidential under this subsection if—

(a) it relates to the private affairs of an individual, and

(b) 10publication of that matter would or might, in OFCOM’s
opinion, seriously and prejudicially affect the interests of that
individual.”

(3) In section 138 (notification of contravention of information requirements)—

(a) in subsection (1), for “135 or 136” substitute “135, 136 or 137A”, and

(b) 15for subsection (2)(d) substitute—

(d) specifies what the person must do in order to comply
with the requirement;”.

(4) In section 140 (suspending service provision for information contraventions),
in subsections (1)(a) and (7), for “135 and 136, or either” substitute “135, 136 and
20137A, or any”.

(5) In section 144 (offences in connection with information requirements)—

(a) in subsection (1), after “or 136” insert “, or who contravenes a
requirement imposed under section 137A,”,

(b) in subsection (2)(b), for “provide the required information” substitute
25“comply with the requirement”,

(c) in subsection (3)—

(i) for “135 or 136” substitute “135, 136 or 137A”, and

(ii) after “provides” (in both places) insert “or publishes”, and

(d) in subsection (5), for paragraph (b) substitute—

(b) 30a confirmation decision has been given under section
139A in respect of that requirement and the period
allowed under that decision has expired without the
requirement have been complied with; and”.

(6) In section 145(1) (statement of policy on information gathering)—

(a) 35in paragraph (a), for “135 to 136” substitute “135, 136 and 137A”, and

(b) in paragraph (b), for “those sections” substitute “sections 135 and 136”.

(7) In section 393(6)(a) (general restrictions on disclosure of information), before
“or 390” insert “, 137A”.

Appeals

75 40Appeals from decisions of OFCOM and others: standard of review

(1) The Communications Act 2003 is amended as follows.

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(2) In section 193(2) (reference of price control matters to the CMA), for “is to be
performed” substitute “, having regard to the principles to be applied by the
Tribunal under section 194A(2), is to be performed”.

(3) In subsection (6) of that section omit “on the merits under section 195”.

(4) 5Before section 195 (decisions of the Tribunal) insert—

194A Disposal of appeals under section 192 (other than against certain
decisions of Secretary of State)

(1) This section applies to an appeal against a decision referred to in section
192(1)(a), (b), (c), (d)(iii) or (e).

(2) 10The Tribunal must decide the appeal, by reference to the grounds of
appeal set out in the notice of appeal, by applying the same principles
as would be applied by a court on an application for judicial review.

(3) The Tribunal may—

(a) dismiss the appeal or quash the whole or part of the decision to
15which it relates; and

(b) where it quashes the whole or part of that decision, remit the
matter back to the decision-maker with a direction to reconsider
and make a new decision in accordance with the ruling of the
Tribunal.

(4) 20The decision-maker must comply with a direction under subsection
(3)(b).

(5) In its application to a decision of the Tribunal under this section,
paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (exclusion of
commercial information from documents recording Tribunal
25decisions) is to have effect as if, for the reference to the undertaking to
which commercial information relates, there were substituted a
reference to any person to whom it relates.

(6) In this section “the decision-maker” means the person who made the
decision appealed against.”

(5) 30Section 195 (decisions of the Tribunal) is amended as follows.

(6) For subsection (1) substitute—

(1) This section applies to an appeal against a decision referred to in section
192(1)(d)(i), (ii), (iia) or (iv).”

(7) Until section 20(2) of the Digital Economy Act 2010 comes into force, the
35amendment made by subsection (6) has effect with the omission of “, (iia)”.

(8) In subsections (3) to (6), for “the decision-maker” in each place substitute “the
Secretary of State”.

(9) Omit subsection (9).

(10) For the title substitute “Disposal of appeals under section 192 against certain
40decisions of Secretary of State”.

(11) In section 317 (exercise of Broadcasting Act powers for a competition purpose),

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for subsection (7) substitute—

(7) Sections 192(3) to (5), (7) and (8), 194A and 196 apply in the case of an
appeal under subsection (6) as they apply in the case of an appeal under
section 192(2).”

(12) 5The amendments made by this section do not apply in relation to appeals
against decisions made before this section comes into force.

Regulation and functions of BBC

76 Functions of OFCOM in relation to the BBC

(1) The Communications Act is amended as follows.

(2) 10Section 198 (functions of OFCOM in relation to the BBC) is amended as follows.

(3) In subsection (1) for the words after paragraph (b) substitute—

“to regulate the BBC.”

(4) After subsection (2) insert—

(2A) The BBC Charter and Agreement may in particular confer on OFCOM,
15as a power they are to have by virtue of subsection (2)(a), power to
require any person to provide information for the purposes of the
carrying out by OFCOM of their function under subsection (1).”

(5) Omit subsection (9).

(6) After section 198 insert—

198ZA 20 Penalties for failure to provide information

(1) This section applies if—

(a) under a power conferred by virtue of section 198(2A), OFCOM
require a person other than the BBC to provide information, and

(b) OFCOM determine that there are reasonable grounds to believe
25the person has not provided the information.

(2) OFCOM may give the person a notice which sets out the determination
and specifies—

(a) what information the person must provide,

(b) the time within which the person must provide it,

(c) 30a penalty that OFCOM may impose if the person does not
provide it, and

(d) a period in which the person may make representations.

(3) OFCOM may impose a penalty on the person if they fail without
reasonable excuse to provide the information in accordance with the
35notice.

(4) The penalty may include an amount for each day the person fails to
provide the information after the time required by the notice.

(5) The penalty in respect of any notice—

(a) must not be more than OFCOM determine to be proportionate,

(b) 40must not be more than the penalty specified in the notice, and