(e) arranging for the giving of any other assistance by a solicitor or counsel;
(f) any other form of assistance which OFCOM consider appropriate.
(5) Nothing in subsection (4)(d) shall be taken to affect the law and practice
regulating the descriptions of persons who may appear in, conduct or defend
any proceedings, or who may address the court in any proceedings.
(6) In so far as expenses are incurred by OFCOM in providing the applicant with
assistance under this section, the recovery of those expenses (as taxed or
assessed in such manner as may be prescribed by rules of court) shall constitute
a first charge for the benefit of OFCOM—
(a) on any costs or expenses which (whether by virtue of a judgment or
order of a court, or an agreement or otherwise) are payable to the
applicant by any other person in respect of the matter in connection
with which the assistance is given; and
(b) so far as relates to costs or expenses, on the applicant’s rights under a
compromise or settlement arrived at in connection with that matter to
avoid proceedings, or to bring them to an end.
(7) A charge conferred by subsection (6) is subject to—
(a) any charge imposed by section 10(7) of the Access to Justice Act 1999
(c. 22) and any provision made by or under Part 1 of that Act for the
payment of any sum to the Legal Services Commission;
(b) any charge or obligation for payment in priority to other debts under
the Legal Aid (Scotland) Act 1986 (c. 47); or
(c) any charge under the Legal Aid, Advice and Assistance (Northern
Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)).
Regulation of premium rate services
116 Conditions regulating premium rate services
(1) OFCOM shall have the power, for the purpose of regulating the content and
provision of premium rate services, to set conditions under this section that
bind the persons to whom they are applied.
(2) Conditions under this section may be applied either—
(a) generally to every person who provides a premium rate service; or
(b) to every person who is of a specified description of such persons, or
who provides a specified description of such services.
(3) The only provision that may be made by conditions under this section is
provision requiring the person to whom the condition applies to comply, to the
extent required by the condition, with—
(a) the code for the time being approved by OFCOM under section 117; or
(b) if there is no such code, the provisions of the order for the time being in
force under section 118.
(4) The power to set a condition under this section includes power to modify or
revoke the conditions for the time being in force under this section.
(5) Sections 43 and 44 apply to the setting, modification and revocation of a
condition under this section as they apply to the setting, modification and
revocation of a condition under section 41.
(6) OFCOM must send a copy of every notification published under section 44(1)
with respect to a condition under this section to the Secretary of State.
(7) A service is a premium rate service for the purposes of this Chapter if—
(a) it is a service falling within subsection (8);
(b) there is a charge for the provision of the service;
(c) the charge is required to be paid to a person providing an electronic
communications service by means of which the service in question is
(d) that charge is imposed in the form of a charge made by that person for
the use of the electronic communications service.
(8) A service falls within this subsection if its provision consists in—
(a) the provision of the contents of communications transmitted by means
of an electronic communications network; or
(b) allowing the user of an electronic communications service to make use,
by the making of a transmission by means of that service, of a facility
made available to the users of the electronic communications service.
(9) For the purposes of this Chapter a person provides a premium rate service if—
(a) he provides the contents of the service, or makes available the facility
comprised in it, or exercises editorial control over the contents of the
(b) he is the provider of an electronic communications service used for the
transmission of the communications comprised in the service and,
under arrangements between him and a person falling within
(i) is the person to whom the charges for the provision of the
service are paid; and
(ii) is entitled to a share of those charges.
(10) Where one or more persons are employed or engaged under the direction or
control of another—
(a) to provide the contents of a service or to make available a facility
comprised in it, or
(b) to exercise editorial control over the contents of a service,
the reference in subsection (9) to the person by whom the contents are
provided or the facility made available, or who exercises that control, is
confined to a reference to that other person.
(11) References in this section to a facility include, in particular, references to—
(a) a facility for making a payment for goods or services;
(b) a facility for entering a competition or claiming a prize; and
(c) a facility for registering a vote or recording a preference.
117 Approval of code for premium rate services
(1) If it appears to OFCOM—
(a) that a code has been made by any person for regulating the provision
and contents of premium rate services, and the facilities made available
in the provision of such services; and
(b) that it would be appropriate for them to approve that code for the
purposes of section 116,
they may approve that code for those purposes.
(2) OFCOM are not to approve a code for those purposes unless they are
(a) that there is a person who, under the code, has the function of
administering and enforcing it; and
(b) that that person is sufficiently independent of the providers of
premium rate services;
(c) that adequate arrangements are in force for funding the activities of
that person in relation to the code;
(d) that the provisions of the code are objectively justifiable in relation to
the services to which it relates;
(e) that those provisions are not such as to discriminate unduly against
particular persons or against a particular description of persons;
(f) that those provisions are proportionate to what they are intended to
(g) that, in relation to what those provisions are intended to achieve, they
(3) The provision that may be contained in a code and approved under this section
includes, in particular, provision about the pricing of premium rate services.
(4) OFCOM may, at any time, for the purposes of section 116—
(a) approve modifications that have been made to an approved code; or
(b) withdraw their approval from an approved code.
(5) Where OFCOM give or withdraw an approval for the purposes of section 116,
they must give notification of their approval or of its withdrawal.
(6) The notification must be published in such manner as OFCOM consider
appropriate for bringing it to the attention of the persons who, in OFCOM’s
opinion, are likely to be affected by the approval or withdrawal.
118 Orders by OFCOM in the absence of a code under s. 117
(1) OFCOM may make an order under this section if, at any time, they consider
that there is no code in force to which they think it would be appropriate to
give, or to continue to give, their approval under section 117.
(2) An order under this section may make such of the following provisions as
OFCOM think fit—
(a) provision imposing requirements with respect to the provision and
contents of premium rate services, and with respect to the facilities
made available in the provision of such services (including provision
(b) provision for the enforcement of those requirements;
(c) provision making other arrangements for the purposes of those
(3) The power to make provision by an order under this section includes, in
(a) power to establish a body corporate with the capacity to make its own
rules and to establish its own procedures;
(b) power to determine the jurisdiction of a body established by such an
order or, for the purposes of the order, of any other person;
(c) power to confer jurisdiction with respect to any matter on OFCOM
(d) power to provide for a person on whom jurisdiction is conferred by the
arrangements to make awards of compensation, to direct the
reimbursement of costs or expenses, or to do both;
(e) power to provide for such a person to enforce, or to participate in the
enforcement of, any awards or directions made under such an order;
(f) power to make such other provision as OFCOM think fit for the
enforcement of such awards and directions.
(4) An order under this section may require such providers of premium rate
services as may be determined by or under the order to make payments to
OFCOM in respect of expenditure incurred by OFCOM in connection with—
(a) the establishment and maintenance, in accordance with such an order,
of any body corporate or procedure; or
(b) the making of other arrangements for the purposes of the requirements
of such an order.
(5) The consent of the Secretary of State is required for the making by OFCOM of
an order under this section.
(6) Section 388 applies to the power of OFCOM to make an order under under this
(7) A statutory instrument containing an order made by OFCOM under this
section shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
119 Enforcement of s. 116 conditions
(1) Sections 90 to 92 apply in relation to a contravention of conditions set under
section 116 as they apply in relation to a contravention of a condition set under
(2) The amount of the penalty imposed under section 92 as applied by this section
is to be such amount not exceeding £100,000 as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(3) In making that determination OFCOM must have regard to—
(a) any representations made to them by the notified provider;
(b) any steps taken by him towards complying with the conditions
contraventions of which have been notified to him under section 90 (as
(c) any steps taken by him for remedying the consequences of those
(4) The Secretary of State may by order amend this section so as to substitute a
different maximum penalty for the maximum penalty for the time being
specified in subsection (2).
(5) No order is to be made containing provision authorised by subsection (4)
unless a draft of the order has been laid before Parliament and approved by a
resolution of each House.