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Communications Bill


Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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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

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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;

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           (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—

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           (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.

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     (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.

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     (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

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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

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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

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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

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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.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    112

 

     (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

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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.

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     (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

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 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,

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            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).

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     (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.

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 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.

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     (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).

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     (3)    A person’s intentions fall within this subsection if he intends—

           (a)           to use the thing to obtain an electronic communications service

dishonestly;

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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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.

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     (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

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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

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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,

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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

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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

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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

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 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.

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     (2)    A notification under this section is one which—

           (a)           sets out the determination made by OFCOM;

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    114

 

           (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—

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           (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

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           (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

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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.

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     (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

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           (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—

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           (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

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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.

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 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

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representations about the matters notified; and

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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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

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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

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                  (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,

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            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.

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     (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.

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     (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.

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 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

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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.

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     (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.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    116

 

     (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—

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           (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.

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     (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—

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           (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

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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)

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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

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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

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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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