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120 Suspending service provision for contraventions of s. 116 conditions | |
(1) OFCOM may give a direction under this section to a person who is a provider | |
of an electronic communications service (“the contravening provider”) if they | |
are satisfied— | |
(a) that he is or has been in serious and repeated contravention of | 5 |
conditions set under section 116; | |
(b) that an attempt, by the imposition of penalties or the giving of | |
enforcement notifications under section 91 (as applied by section 119) | |
or both, to secure compliance with the contravened conditions has | |
failed; | 10 |
(c) that the giving of the direction is appropriate and proportionate to the | |
seriousness (when repeated as they have been) of the contraventions; | |
and | |
(d) that the giving of the direction is required for reasons of public policy. | |
(2) A direction under this section is— | 15 |
(a) a direction that the entitlement of the contravening provider to provide | |
premium rate services is suspended (either generally or in relation to a | |
particular service); or | |
(b) a direction that that entitlement is restricted in the respects set out in the | |
direction. | 20 |
(3) A direction under this section— | |
(a) must specify the services to which it relates; and | |
(b) except so far as it otherwise provides, takes effect for an indefinite | |
period beginning with the time at which it is notified to the person to | |
whom it is given. | 25 |
(4) A direction under this section— | |
(a) in providing for the effect of a suspension or restriction to be | |
postponed, may provide for it to take effect only at a time determined | |
by or in accordance with the terms of the direction; and | |
(b) in connection with the suspension or restriction contained in the | 30 |
direction or with the postponement of its effect, may impose such | |
conditions on the contravening provider as appear to OFCOM to be | |
appropriate for the purpose of protecting that provider’s customers. | |
(5) Those conditions may include a condition requiring the making of payments— | |
(a) by way of compensation for loss or damage suffered by the | 35 |
contravening provider’s customers as a result of the direction; or | |
(b) in respect of annoyance, inconvenience or anxiety to which they have | |
been put in consequence of the direction. | |
(6) If OFCOM consider it appropriate to do so (whether or not in consequence of | |
representations or proposals made to them), they may revoke a direction under | 40 |
this section or modify its conditions— | |
(a) with effect from such time as they may direct; | |
(b) subject to compliance with such requirements as they may specify; and | |
(c) to such extent and in relation to such services as they may determine. | |
(7) Sections 98 and 99 apply in the case of a direction under this section as they | 45 |
apply in the case of a direction under section 96, but as if references in section | |
99(1) to an electronic communications network or electronic communications | |
service were references to a premium rate service. | |
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(8) For the purposes of this section there are repeated contraventions by a person | |
of conditions set under section 116 to the extent that— | |
(a) in the case of a previous notification given to that person under section | |
section 90 (as applied by section 119), OFCOM have determined for the | |
purposes of section 91(2) or 92(2) (as so applied) that such a | 5 |
contravention did occur; and | |
(b) in the period of twelve months following the day of the making of that | |
determination, one or more further notifications have been given to | |
that person in respect of contraventions of a condition set under section | |
116. | 10 |
(9) For the purposes of this section the seriousness of repeated contraventions of | |
conditions set under section 116 has to be determined by reference to the | |
seriousness of the contraventions of the approved code or order by reference | |
to which the conditions have effect. | |
Offences relating to networks and services | 15 |
121 Dishonestly obtaining electronic communications services | |
(1) A person who— | |
(a) dishonestly obtains an electronic communications service, and | |
(b) does so with intent to avoid payment of a charge applicable to the | |
provision of that service, | 20 |
is guilty of an offence. | |
(2) It is not an offence under this section to obtain a service mentioned in section | |
297(1) of the Copyright, Designs and Patents Act 1988 (c. 48) (dishonestly | |
obtaining a broadcasting or cable programme service provided from a place in | |
the UK). | 25 |
(3) A person guilty of an offence under this section shall be liable— | |
(a) on summary conviction, to imprisonment for a term not exceeding six | |
months or to a fine not exceeding the statutory maximum, or to both; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
five years or to a fine, or to both. | 30 |
122 Possession or supply of apparatus etc. for contravening s. 121 | |
(1) A person is guilty of an offence if, with an intention falling within subsection | |
(3), he has in his possession or under his control anything that may be used— | |
(a) for obtaining an electronic communications service; or | |
(b) in connection with obtaining such a service. | 35 |
(2) A person is guilty of an offence if— | |
(a) he supplies or offers to supply anything which may be used as | |
mentioned in subsection (1); and | |
(b) he knows or believes that the intentions in relation to that thing of the | |
person to whom it is supplied or offered fall within subsection (3). | 40 |
(3) A person’s intentions fall within this subsection if he intends— | |
(a) to use the thing to obtain an electronic communications service | |
dishonestly; | |
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(b) to use the thing for a purpose connected with the dishonest obtaining | |
of such a service; | |
(c) dishonestly to allow the thing to be used to obtain such a service; or | |
(d) to allow the thing to be used for a purpose connected with the dishonest | |
obtaining of such a service. | 5 |
(4) An intention does not fall within subsection (3) if it relates exclusively to the | |
obtaining of a service mentioned in section 297(1) of the Copyright, Designs | |
and Patents Act 1988 (c. 48). | |
(5) A person guilty of an offence under this section shall be liable— | |
(a) on summary conviction, to imprisonment for a term not exceeding six | 10 |
months or to a fine not exceeding the statutory maximum, or to both; | |
and | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
five years or to a fine, or to both. | |
(6) In this section, references, in the case of a thing used for recording data, to the | 15 |
use of that thing include references to the use of data recorded by it. | |
123 Improper use of public electronic communications network | |
(1) A person is guilty of an offence if he— | |
(a) sends by means of a public electronic communications network a | |
message or other matter that is grossly offensive or of an indecent, | 20 |
obscene or menacing character; or | |
(b) causes any such message or matter to be so sent. | |
(2) A person is guilty of an offence if, for the purpose of causing annoyance, | |
inconvenience or needless anxiety to another, he— | |
(a) sends by means of a public electronic communications network, a | 25 |
message that he knows to be false, | |
(b) causes such a message to be sent; or | |
(c) persistently makes use of a public electronic communications network. | |
(3) A person guilty of an offence under this section shall be liable, on summary | |
conviction, to imprisonment for a term not exceeding six months or to a fine | 30 |
not exceeding level 5 on the standard scale, or to both. | |
(4) Subsections (1) and (2) do not apply to anything done in the course of | |
providing a programme service (within the meaning of the Broadcasting Act | |
1990 (c. 42)). | |
Persistent misuse of network or service | 35 |
124 Notification of misuse of networks and services | |
(1) Where OFCOM determine that there are reasonable grounds for believing that | |
a person has persistently misused an electronic communications network or | |
electronic communications services, they may give that person a notification | |
under this section. | 40 |
(2) A notification under this section is one which— | |
(a) sets out the determination made by OFCOM; | |
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(b) specifies the use that OFCOM consider constitutes persistent misuse; | |
and | |
(c) specifies the period during which the person notified has an | |
opportunity of making representations about the matters notified. | |
(3) That period must not be less than the following— | 5 |
(a) in an urgent case, seven days; and | |
(b) in any other case, one month. | |
(4) A case is an urgent case for the purposes of subsection (3) if OFCOM | |
consider— | |
(a) that the misuse in question is continuing; and | 10 |
(b) that the harm it causes makes it necessary for it to be stopped as soon | |
as possible. | |
(5) For the purposes of this Chapter a person misuses an electronic | |
communications network or electronic communications service if— | |
(a) the effect or likely effect of his use of the network or service is to cause | 15 |
another person unnecessarily to suffer annoyance, inconvenience or | |
anxiety; or | |
(b) he uses the network or service to engage in conduct the effect or likely | |
effect of which is to cause another person unnecessarily to suffer | |
annoyance, inconvenience or anxiety. | 20 |
(6) For the purposes of this Chapter the cases in which a person is to be treated as | |
persistently misusing a network or service include any case in which his | |
misuse is repeated on a sufficient number of occasions for it to be clear that the | |
misuse represents— | |
(a) a pattern of behaviour or practice; or | 25 |
(b) recklessness as to whether persons suffer annoyance, inconvenience or | |
anxiety. | |
(7) For the purpose of determining whether misuse on a number of different | |
occasions constitutes persistent misuse for the purposes of this Chapter, each | |
of the following is immaterial— | 30 |
(a) that the misuse was in relation to a network on some occasions and in | |
relation to a service on others; | |
(b) that different networks or services were involved on different | |
occasions; and | |
(c) that the persons who were or were likely to suffer annoyance | 35 |
inconvenience or anxiety were different on different occasions. | |
(8) If he considers that appropriate alternative means of dealing with it exists, the | |
Secretary of State may by order provide that a use of a description specified in | |
the order is not to be treated for the purposes of this Chapter as a misuse of an | |
electronic communications network or electronic communications service. | 40 |
125 Enforcement notifications for stopping persistent misuse | |
(1) This section applies where— | |
(a) a person (“the notified misuser”) has been given a notification under | |
section 124; | |
(b) OFCOM have allowed the notified misuser an opportunity of making | 45 |
representations about the matters notified; and | |
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(c) the period allowed for the making of the representations has expired. | |
(2) OFCOM may give the notified misuser an enforcement notification if they are | |
satisfied— | |
(a) that he has, in one or more of the notified respects, persistently misused | |
an electronic communications network or electronic communications | 5 |
service; and | |
(b) that he has not, since the giving of the notification, taken all such steps | |
as OFCOM consider appropriate for— | |
(i) securing that his misuse is brought to an end and is not | |
repeated; and | 10 |
(ii) remedying the consequences of the notified misuse. | |
(3) An enforcement notification is a notification which imposes a requirement on | |
the notified misuser to take all such steps for— | |
(a) securing that his misuse is brought to an end and is not repeated, and | |
(b) remedying the consequences of the notified misuse, | 15 |
as may be specified in the notification. | |
(4) A decision of OFCOM to give an enforcement notification to a person must fix | |
a reasonable period for the taking of the steps required by the notification. | |
(5) It shall be the duty of a person to whom an enforcement notification has been | |
given to comply with it. | 20 |
(6) That duty shall be 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 (c. 36); or | |
(c) for any other appropriate remedy or relief. | 25 |
(7) References in this section to remedying the consequences of misuse include | |
references to paying an amount to a person— | |
(a) by way of compensation for loss or damage suffered by that person; or | |
(b) in respect of annoyance, inconvenience or anxiety to which he has been | |
put. | 30 |
126 Penalties for persistent misuse | |
(1) This section applies (in addition to section 125) where— | |
(a) a person (“the notified misuser”) has been given a notification under | |
section 124; | |
(b) OFCOM have allowed the notified misuser an opportunity of making | 35 |
representations about the matters notified; and | |
(c) the period allowed for the making of the representations has expired. | |
(2) OFCOM may impose a penalty on the notified misuser if he has, in one or more | |
of the notified respects, persistently misused an electronic communications | |
network or electronic communications service. | 40 |
(3) OFCOM may also impose a penalty on the notified misuser if he has | |
contravened a requirement of an enforcement notification given in respect of | |
the notified misuse. | |
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(4) The amount of a penalty imposed is to be such amount not exceeding £5,000 as | |
OFCOM determine to be— | |
(a) appropriate; and | |
(b) proportionate to the misuse in respect of which it is imposed. | |
(5) In making that determination OFCOM must have regard to— | 5 |
(a) any representations made to them by the notified misuser; | |
(b) any steps taken by him for securing that his misuse is brought to an end | |
and is not repeated; and | |
(c) any steps taken by him for remedying the consequences of the notified | |
misuse. | 10 |
(6) Where OFCOM impose a penalty on a person under this section, they shall— | |
(a) notify the person penalised; and | |
(b) in that notification, fix a reasonable period after it is given as the period | |
within which the penalty is to be paid. | |
(7) A penalty imposed under this section— | 15 |
(a) must be paid to OFCOM; and | |
(b) if not paid within the period fixed by them, is to be recoverable by them | |
accordingly. | |
(8) It is to be possible for a person to be both liable for an offence under sections | |
121 to 123 and to have a penalty imposed on him under this section in respect | 20 |
of the same conduct. | |
(9) 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 (4). | |
(10) No order is to be made containing provision authorised by subsection (9) | 25 |
unless a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
127 Statement of policy on persistent misuse | |
(1) It shall be the duty of OFCOM to prepare and publish a statement of their | |
general policy with respect to the exercise of their powers under sections 124 | 30 |
to 126. | |
(2) OFCOM may from time to time revise that statement as they think fit. | |
(3) Where OFCOM make or revise their statement of policy under this section, | |
they must publish that statement or (as the case may be) the revised statement | |
in such manner as they consider appropriate for bringing it to the attention of | 35 |
the persons who, in their opinion, are likely to be affected by it. | |
(4) It shall be the duty of OFCOM, in exercising the powers conferred on them by | |
sections 124 to 126, to have regard to the statement for the time being in force | |
under this section. | |
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