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(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. | 5 |
(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 | 10 |
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 | 15 |
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; | 20 |
(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 | 25 |
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— | 30 |
(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 | 35 |
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 | 40 |
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. | |
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(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; | 5 |
(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 | |
provided; and | |
(d) that charge is imposed in the form of a charge made by that person for | |
the use of the electronic communications service. | 10 |
(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 | 15 |
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 | |
service; or | 20 |
(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 | |
paragraph (a)— | |
(i) is the person to whom the charges for the provision of the | 25 |
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 | 30 |
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. | 35 |
(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 | 40 |
(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 | 45 |
purposes of section 116, | |
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they may approve that code for those purposes. | |
(2) OFCOM are not to approve a code for those purposes unless they are | |
satisfied— | |
(a) that there is a person who, under the code, has the function of | |
administering and enforcing it; and | 5 |
(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 | 10 |
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 | |
achieve; and | 15 |
(g) that, in relation to what those provisions are intended to achieve, they | |
are transparent. | |
(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— | 20 |
(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 | 25 |
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 | 30 |
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 | 35 |
made available in the provision of such services (including provision | |
about pricing); | |
(b) provision for the enforcement of those requirements; | |
(c) provision making other arrangements for the purposes of those | |
requirements. | 40 |
(3) The power to make provision by an order under this section includes, in | |
particular— | |
(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 | 45 |
order or, for the purposes of the order, of any other person; | |
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(c) power to confer jurisdiction with respect to any matter on OFCOM | |
themselves; | |
(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; | 5 |
(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; | |
and | |
(f) power to make such other provision as OFCOM think fit for the | |
enforcement of such awards and directions. | 10 |
(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 | 15 |
(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 392 applies to the power of OFCOM to make an order under under this | 20 |
section. | |
(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 | 25 |
(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 | |
section 41. | |
(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— | 30 |
(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 | 35 |
contraventions of which have been notified to him under section 90 (as | |
applied); and | |
(c) any steps taken by him for remedying the consequences of those | |
contraventions. | |
(4) The Secretary of State may by order amend this section so as to substitute a | 40 |
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. | 45 |
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