Digital Economy Bill (HL Bill 102)

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(5) It is the duty of a provider to whom an enforcement notification is
given to comply with it.

(6) That duty is enforceable in civil proceedings by the appropriate
regulatory authority—

(a) 5for 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) If a provider to whom an enforcement notification has been given does
10not comply with it within the period fixed by the appropriate
regulatory authority in that enforcement notification the appropriate
regulatory authority may impose a financial penalty on the provider in
accordance with section 368J.”

(3) In section 368C (duties of the appropriate regulatory authority), omit
15subsection (2).

(4) After that section insert—

368CA Code on accessibility for people with disabilities

(1) It is the duty of the appropriate regulatory authority to draw up, and
from time to time review and revise, a code giving guidance as to—

(a) 20the steps to be taken by providers of on-demand programme
services so as to meet the requirements of regulations under
section 368BC, and

(b) other steps to be taken by providers who are subject to
requirements under the regulations to ensure that their services
25are made progressively more accessible to people with
disabilities affecting their sight or hearing or both.

(2) The appropriate regulatory authority must publish the code drawn up
under this section, and every revision of it, in such manner as, having
regard to the need to make the code or revision accessible to—

(a) 30persons who are deaf or hard of hearing,

(b) persons who are blind or partially sighted, and

(c) persons with a dual sensory impairment,

they consider appropriate.”

(5) In section 368J(1) (financial penalties), after “368BB” insert “, 368BD”.

(6) 35In section 368K(1) (suspension or restriction of service for contraventions)—

(a) in paragraph (a), after “368D” insert “, or of regulations under section
368BC”,

(b) in paragraph (b)—

(i) after “368D” insert “or the regulations”, and

(ii) 40for “or 368I” substitute “, 368I or 368BC”.

(7) In section 368O(2)(a) (power to demand information), after “368D” insert “, or
of regulations under section 368CA,”.

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86 On-demand programme services: specially restricted material

(1) Section 368E of the Communications Act 2003 (restrictions on harmful material
contained in on-demand programme services) is amended as follows.

(2) In subsection (5), after paragraph (b) omit “or”.

(3) 5In that subsection, after paragraph (c) insert—

(d) a video work—

(i) in respect of which the video works authority has issued
an 18 certificate, and

(ii) whose nature is such that it is reasonable to assume that
10its principal purpose is to cause sexual arousal, or

(e) material whose nature is such that it is reasonable—

(i) to assume that its principal purpose is to cause sexual
arousal, and

(ii) to expect that, if the material were contained in a video
15work submitted to the video works authority for a
classification certificate, the video works authority
would issue an 18 certificate.”

(4) In subsection (6), after “(5)(b)” insert “or (e)”.

(5) In subsection (7), after the definition of “the 1984 Act”, insert—

  • 20““18 certificate” means a classification certificate which—

    (a)

    contains, pursuant to section 7(2)(b) of the 1984 Act, 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
    25supplied to any person who has not attained that age,
    and

    (b)

    does not contain the statement mentioned in section
    7(2)(c) of the 1984 Act that no video recording
    containing the video work is to be supplied other than in
    30a licensed sex shop;”.

Direct marketing code

87 Direct marketing code

(1) The Data Protection Act 1998 is amended as follows.

(2) After section 52A insert—

52AA 35 Direct marketing code

(1) The Commissioner must prepare a code of practice which contains—

(a) practical guidance in relation to the carrying out of direct
marketing in accordance with the requirements of this Act and
the Privacy and Electronic Communications (EC Directive)
40Regulations 2003 (S.I. 2003/2426), and

(b) such other guidance as the Commissioner considers
appropriate to promote good practice in direct marketing.

(2) For this purpose “good practice” means such practice in direct
marketing as appears to the Commissioner to be desirable having

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regard to the interests of data subjects and others, and includes (but is
not limited to) compliance with the requirements mentioned in
subsection (1)(a).

(3) Before a code is prepared under this section, the Commissioner must
5consult such of the following as the Commissioner considers
appropriate—

(a) trade associations (within the meaning of section 51);

(b) data subjects;

(c) persons who appear to the Commissioner to represent the
10interests of data subjects.

(4) In this section “direct marketing” has the meaning given by section
11(3).”

(3) In section 51(5A) (general duties of Commissioner) at the end insert “or section
52AA (direct marketing code)”.

(4) 15In the title of each of sections 52B to 52E for “data-sharing code” substitute
“data-sharing and direct marketing codes”.

(5) In section 52B (procedure for making code)—

(a) in subsection (1) after “52A” insert “or 52AA”;

(b) in subsection (6) omit “under section 52A”.

(6) 20In section 52C (alteration or replacement of code)—

(a) in subsection (1)(a) after “data-sharing code” insert “and the direct
marketing code”;

(b) in subsection (1)(b) for “may prepare an alteration to that code”
substitute “in either case, may prepare an alteration to the code”;

(c) 25in subsection (4) after “52A” insert “or 52AA”;

(d) in subsection (5) for “means the code” substitute “and “the direct
marketing code” mean the codes respectively prepared under sections
52A and 52AA and”.

(7) In section 52D (publication of code) in subsection (1) for “the code” substitute
30“any code”.

(8) In section 52E (effect of code)—

(a) in subsection (1) after “data-sharing code” insert “or the direct
marketing code”;

(b) in subsection (2) for “The data-sharing code is” substitute “Those codes
35are”;

(c) in subsection (3) for “the data-sharing code” substitute “those codes”;

(d) in subsection (3)(a) after “Act” insert “or the Privacy and Electronic
Communications (EC Directive) Regulations 2003 (S.I. 2003/2426)”;

(e) in subsection (3)(c) after “Act” insert “or those Regulations”;

(f) 40in subsection (4) for “means the code” substitute “and “the direct
marketing code” mean the codes respectively prepared under sections
52A and 52AA and”.

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Other provisions relating to OFCOM

88 OFCOM and Northern Ireland

(1) Section 1 of the Office of Communications Act 2002 (the Office of
Communications) is amended as follows.

(2) 5In subsection (3), before paragraph (b) insert—

(ac) a member appointed by the Minister for the Economy in
Northern Ireland;”.

(3) Before subsection (4) insert—

(3C) Before appointing a member under subsection (3)(ac) the Minister for
10the Economy must consult the Secretary of State.”

(4) In subsection (5) in the words before paragraph (a), before “and (b),” insert
“, (ac)”.

(5) At the end insert—

(13) Paragraphs 1 and 2 of the Schedule apply in relation to the appointment
15made under subsection (3)(ac) as if—

(a) any reference to the Secretary of State were to the Minister for
the Economy, and

(b) at the end of paragraph 2 there were inserted—

(9) Before the Minister for the Economy removes a person from
20office the Minister must consult the Secretary of State.””

(6) The Schedule to the Office of Communications Act 2002 is amended as follows.

(7) In paragraph 11 (accounts and audit)—

(a) in sub-paragraph (3)(c) at the end insert “and the Minister for the
Economy in Northern Ireland”;

(b) 25at the end insert—

(6) The Minister for the Economy in Northern Ireland shall lay a
copy of the statement and report sent to the Minister under
sub-paragraph (3) before the Northern Ireland Assembly.”

(8) In paragraph 12 (annual report)—

(a) 30in sub-paragraph (1) before “a report” insert “and the Minister for the
Economy in Northern Ireland”;

(b) at the end insert—

(6) The Minister for the Economy in Northern Ireland shall lay a
copy of every report sent to the Minister under this
35paragraph before the Northern Ireland Assembly.”

(9) The following provisions of section 44 of the Northern Ireland Act 1998 (power
of Assembly to call for witnesses and documents: limitation by reference to
transferred matters etc) do not apply in relation to requirements imposed in
connection with the discharge of the functions of the Office of Communications
40in relation to Northern Ireland—

(a) the words after paragraph (b) in subsection (1);

(b) subsections (2), (3) and (5)(b).

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89 Retention by OFCOM of amounts paid under Wireless Telegraphy Act 2006

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

(2) In section 400(4)(c) (destination of fees and penalties: account for financial
year), for the words from “of principles” to “subsection (4)” substitute “under
5section 401 for meeting the costs set out in the statement in accordance with
subsection (1)(b)”.

(3) In section 401 (retention of amounts by OFCOM), for subsection (1)
substitute—

(1) OFCOM have power to make a statement setting out—

(a) 10the principles under which they may retain any or all of the
amounts paid to them—

(i) in pursuance of obligations imposed by or under
Chapter 1 or 2 of Part 2 of the Wireless Telegraphy Act
2006;

(ii) 15in respect of fees charged under section 53D of that Act,
and

(b) the costs in respect of which the amounts may be retained
(which may include costs other than those incurred in the
exercise of their functions under those provisions).”

(4) 20In subsection (2) of that section, omit “of principles”.

(5) For subsections (3) to (5) of that section substitute—

(3) The provision contained in a statement made by OFCOM under this
section must be such as appears to them likely to secure, on the basis of
such estimates of the likely costs as it is practicable to make, that the
25amounts retained by OFCOM are objectively justifiable and
proportionate to the costs in respect of which they are retained.”

(6) In subsection (6) of that section, omit “the principles contained in”.

(7) In subsection (7) of that section, for “of carrying out the functions mentioned in
subsection (4) of this section” substitute “set out in the statement in accordance
30with subsection (1)(b)”.

(8) In subsection (8) of that section, omit “of principles”.

(9) In subsection (10) of that section, after “Treasury” insert “and the Secretary of
State”.

(10) For the heading to that section substitute “Retention by OFCOM of amounts
35paid under Wireless Telegraphy Act 2006”.

90 International recognition of satellite frequency assignments: power of
OFCOM to charge fees

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

(2) After section 28 (general power of OFCOM to charge for services), and before

Digital Economy BillPage 95

the cross-heading following that section, insert—

28A International recognition of satellite frequency assignments: power to
charge fees

(1) This section applies where functions conferred on OFCOM under
5section 22 include functions of the administration of the United
Kingdom under the ITU Radio Regulations.

(2) OFCOM may require any person to pay them a fee for doing satellite
filing work at the request of that person.

(3) In this section “satellite filing work” means anything connected with
10obtaining or maintaining international recognition under the ITU
Radio Regulations of assignments (or changes in assignments) of radio
frequencies to stations in satellite systems or satellite networks.

(4) OFCOM may vary from time to time the amount of any fee set by them
under this section.

(5) 15OFCOM may not require a person to pay a fee under this section unless
they have taken such steps as they consider appropriate to bring the
fact that they charge the fee, and the amount of the fee, to the attention
of those persons who, in their opinion, are likely to be required to pay it.

(6) As soon as reasonably practicable after the end of each reporting year,
20OFCOM must publish a statement setting out—

(a) the aggregate amount of the fees charged under this section that
have been received by OFCOM during that year;

(b) the aggregate amount of the fees charged under this section
during that year which remain outstanding and are likely to be
25paid or recovered; and

(c) the total cost to OFCOM of doing the requested satellite filing
work they have done during that year.

(7) If the total of the amounts set out in a statement under subsection (6)(a)
and (b) exceeds the total cost set out under subsection (6)(c), OFCOM
30must take this into account with a view to securing that the aggregate
amount of fees charged under this section in the following reporting
year does not exceed the likely total cost to them of doing requested
satellite filing work during that year.

(8) In this section—

  • 35“administration”, “assignment” (of a radio frequency), “station”,
    “satellite system” and “satellite network” have the same
    meanings as in the ITU Radio Regulations;

  • “reporting year” means—

    (a)

    the period beginning with the coming into force of this
    40section and ending with the next 31st March, or

    (b)

    any subsequent period of twelve months beginning
    with 1st April;

  • “the ITU Radio Regulations” means the radio regulations of the
    International Telecommunication Union.”

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(3) In section 38 (annual administrative charge), after subsection (11) insert—

(11A) For the purposes of this section, the cost to OFCOM of carrying out the
functions mentioned in subsection (5) does not include the cost to
OFCOM of doing anything for which they charge a fee under section
528A.”

(4) Section 28A(2) and (6)(c) of the Communications Act 2003, inserted by
subsection (2), does not apply to any satellite filing work if OFCOM received
the request to do that work before the coming into force of that section.

Internet filters

91 10Internet filters

(1) A provider of an internet access service to an end-user may prevent or restrict
access on the service to information, content, applications or services, for child
protection or other purposes, if the action is in accordance with the terms on
which the end-user uses the service.

(2) 15This section does not affect whether a provider of an internet access service
may prevent or restrict access to anything on the service in other
circumstances.

(3) In this section—

  • “end-user” means an end-user of a public electronic communications
    20service, within the meaning given by section 151(1) of the
    Communications Act 2003;

  • “internet access service” has the meaning given by Article 2(2) of
    Regulation (EU) 2015/2120 of the European Parliament and of the
    Council of 25th November 2015 laying down measures concerning
    25open internet access and amending Directive 2002/22/EC on universal
    service and users’ rights relating to electronic communications
    networks and services and Regulation (EU) No 531/2012 on roaming
    on public mobile communications networks within the Union.

Communication devices used for drug dealing

92 30Prevention or restriction of use of communication devices for drug dealing

After section 80 of the Serious Crime Act 2015 insert—

80A Prevention or restriction of use of communication devices for drug
dealing

(1) Regulations may make provision conferring power on a court to make
35a drug dealing telecommunications restriction order.

(2) “Drug dealing telecommunications restriction order” means an order
requiring a communications provider to take whatever action the order
specifies for the purpose of preventing or restricting the use of
communication devices in connection with drug dealing offences.

(3) 40Without limiting the action that may be specified, it includes—

(a) action that relates to a specified device;

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(b) action that relates to a specified phone number or something
else that may be used with a device.

(4) In this section “drug dealing offence” means an offence under section
4(3) of the Misuse of Drugs Act 1971 or section 5 of the Psychoactive
5Substances Act 2016; and a communication device is used in connection
with a drug dealing offence if it is used by a person (“the user”) in the
course of—

(a) the user committing a drug dealing offence,

(b) the user facilitating the commission by the user or another
10person of a drug dealing offence, or

(c) conduct of the user that is likely to facilitate the commission by
the user or another person of a drug dealing offence (whether or
not an offence is committed).

(5) Regulations under this section must provide for drug dealing
15telecommunications restriction orders to be made only on the
application of—

(a) the Director General or Deputy Director General of the National
Crime Agency, or

(b) a police officer of the rank of superintendent or above.

(6) 20Regulations under this section must—

(a) specify the matters about which the court must be satisfied if it
is to make an order;

(b) make provision about the duration of orders (which may
include provision for orders of indefinite duration);

(c) 25make provision about the giving (by a communications
provider or any other person) of notice of the making of an
order;

(d) make provision about variation (including extension) and
discharge of orders;

(e) 30make provision about appeals.

(7) Regulations under this section must provide—

(a) for applications for drug dealing telecommunications
restriction orders to be made and heard without notice of the
application or hearing having been given to persons affected (or
35their legal representatives), subject to subsection (9)(a);

(b) for applications to be heard and determined in the absence of
persons affected (and their legal representatives), subject to
subsection (9)(b);

(c) for applications to be heard and determined in private.

(8) 40Regulations under this section must provide for a court hearing an
application or an appeal to have power to restrict disclosure of
information submitted in connection with the application or appeal if
satisfied that it is necessary to do so in the public interest.

(9) Regulations under this section may—

(a) 45make provision for a communications provider affected by an
application to be given notice of the application or hearing;

(b) make provision for a communications provider affected by an
application to be present or represented at the hearing and
determination of the application;

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(c) in connection with any provision under paragraph (b), make
provision for a communications provider to have a right to
make representations;

(d) make provision for a drug dealing telecommunications
5restriction order to specify that a requirement of the order is not
to apply in particular circumstances;

(e) make provision authorising a court to include in an order a
requirement for the person applying for the order to pay any or
all of the costs of complying with it;

(f) 10make provision about time limits for complying with orders;

(g) make provision about enforcement of orders (which may
include provision creating offences);

(h) make provision about costs (or, in Scotland, expenses) in respect
of legal proceedings;

(i) 15make provision about compensation;

(j) make different provision for different purposes or areas;

(k) make incidental, consequential, supplementary or transitional
provision, including provision applying any enactment (with or
without modifications).

(10) 20The power to make regulations under this section is exercisable by
statutory instrument made by the Secretary of State.

(11) A statutory instrument containing regulations under this section is not
to be made unless a draft of the instrument has been laid before, and
approved by a resolution of, each House of Parliament.

(12) 25In this section—

  • “communication device” means an item specified in section 1(3) of
    the Prisons (Interference with Wireless Telegraphy) Act 2012
    (mobile telephones etc);

  • “communications provider” means a person providing a
    30telecommunications service;

  • “court” means—

    (a)

    in relation to England and Wales, the county court;

    (b)

    in relation to Scotland, the sheriff;

    (c)

    in relation to Northern Ireland, a county court;

  • 35“enactment” includes—

    (a)

    an enactment contained in subordinate legislation
    within the meaning of the Interpretation Act 1978;

    (b)

    an enactment contained in, or in an instrument made
    under, an Act of the Scottish Parliament;

    (c)

    40Northern Ireland legislation;

  • “telecommunications service” has the meaning given by section
    261 of the Investigatory Powers Act 2016.”

Payment and securities settlement systems

93 Power to apply settlement finality regime to payment institutions

45In Part 24 of the Financial Services and Markets Act 2000 (insolvency) after

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section 379 insert—

“Settlement finality
379A Power to apply settlement finality regime to payment institutions

(1) The Treasury may by regulations made by statutory instrument
5provide for the application to payment institutions, as participants in
payment or securities settlement systems, of provision in subordinate
legislation—

(a) modifying the law of insolvency or related law in relation to
such systems, or

(b) 10relating to the securing of rights and obligations.

(2) “Payment institution” means—

(a) an authorised payment institution or small payment institution
within the meaning of the Payment Services Regulations 2009
(S.I. 2009/209), or

(b) 15a person whose head office, registered office or place of
residence, as the case may be, is outside the United Kingdom
and whose functions correspond to those of an institution
within paragraph (a).

(3) “Payment or securities settlement system” means arrangements
20between a number of participants for or in connection with the clearing
or execution of instructions by participants relating to any of the
following—

(a) the placing of money at the disposal of a recipient;

(b) the assumption or discharge of a payment obligation;

(c) 25the transfer of the title to, or an interest in, securities.

(4) “Subordinate legislation” has the same meaning as in the Interpretation
Act 1978.

(5) Regulations under this section may—

(a) make consequential, supplemental or transitional provision;

(b) 30amend subordinate legislation.

(6) A statutory instrument containing regulations under this section is
subject to annulment in pursuance of a resolution of either House of
Parliament.”

94 Bank of England oversight of payment systems

35Schedule 4 extends Part 5 of the Banking Act 2009 (Bank of England oversight
of inter-bank payment systems) to other payment systems; and makes
consequential provision.

Qualifications in information technology

95 Qualifications in information technology: payment of tuition fees

(1) 40The Apprenticeships, Skills, Children and Learning Act 2009 is amended as
follows.