|
| |
| |
| |
(b) | the transmission in a communication network of information |
| |
provided by the recipient of the service. |
| |
(2) | But sub-paragraph (1) applies only if the service provider does not— |
| |
(a) | initiate the transmission; |
| |
(b) | select the recipient of the transmission; |
| |
(c) | select or modify the information contained in the transmission. |
| |
(3) | For the purposes of sub-paragraph (1), the provision of access to a |
| |
communication network, and the transmission of information in a |
| |
communication network, includes the automatic, intermediate and transient |
| |
storage of the information transmitted so far as the storage is solely for the |
| |
purpose of carrying out the transmission in the network. |
| |
(4) | Sub-paragraph (3) does not apply if the information is stored for longer than |
| |
is reasonably necessary for the transmission. |
| |
| |
4 (1) | This paragraph applies where an information society service consists in the |
| |
transmission in a communication network of information provided by a |
| |
recipient of the service. |
| |
(2) | The information society service provider does not contravene this Act only |
| |
by doing anything in connection with the automatic, intermediate and |
| |
temporary storage of information so provided if— |
| |
(a) | the storage of the information is solely for the purpose of making |
| |
more efficient the onward transmission of the information to other |
| |
recipients of the service at their request, and |
| |
(b) | the condition in sub-paragraph (3) is satisfied. |
| |
(3) | The condition is that the service-provider— |
| |
(a) | does not modify the information, |
| |
(b) | complies with such conditions as are attached to having access to the |
| |
| |
(c) | (where sub-paragraph (4) applies) expeditiously removes the |
| |
information or disables access to it. |
| |
(4) | This sub-paragraph applies if the service-provider obtains actual knowledge |
| |
| |
(a) | the information at the initial source of the transmission has been |
| |
removed from the network, |
| |
(b) | access to it has been disabled, or |
| |
(c) | a court or administrative authority has required the removal from |
| |
the network of, or the disablement of access to, the information. |
| |
| |
5 (1) | An information society service provider does not contravene this Act only |
| |
by doing anything in providing so much of an information society service as |
| |
consists in the storage of information provided by a recipient of the service, |
| |
| |
(a) | the service provider had no actual knowledge when the information |
| |
was provided that its provision amounted to a contravention of this |
| |
| |
| |
|
| |
| |
| |
(b) | on obtaining actual knowledge that the provision of the information |
| |
amounted to a contravention of that section, the service provider |
| |
expeditiously removed the information or disabled access to it. |
| |
(2) | Sub-paragraph (1) does not apply if the recipient of the service is acting |
| |
under the authority of the control of the service provider. |
| |
| |
6 | An injunction or interdict under Part 1 of the Equality Act 2006 may not |
| |
impose on a person concerned with the provision of a service of a |
| |
description given in paragraph 3(1), 4(1) or 5(1)— |
| |
(a) | a liability the imposition of which would contravene Article 12, 13 or |
| |
14 of the E-Commerce Directive; |
| |
(b) | a general obligation of the description given in Article 15 of that |
| |
| |
| |
7 (1) | This paragraph applies for the purposes of this Schedule. |
| |
(2) | “Information society service”— |
| |
(a) | has the meaning given in Article 2(a) of the E-Commerce Directive |
| |
(which refers to Article 1(2) of Directive 98/34/EC of the European |
| |
Parliament and of the Council of 22 June 1998 laying down a |
| |
procedure for the provision of information in the field of technical |
| |
standards and regulations), and |
| |
(b) | is summarised in recital 17 of the E-Commerce Directive as covering |
| |
“any service normally provided for remuneration, at a distance, by |
| |
means of electronic equipment for the processing (including digital |
| |
compression) and storage of data, and at the individual request of a |
| |
| |
(3) | “The E-Commerce Directive” means Directive 2000/31/EC of the European |
| |
Parliament and of the Council of 8 June 2000 on certain legal aspects of |
| |
information society services, in particular electronic commerce, in the |
| |
Internal Market (Directive on electronic commerce). |
| |
(4) | “Recipient” means a person who (whether for professional purposes or not) |
| |
uses an information society service, in particular for seeking information or |
| |
| |
(5) | An information society service-provider is “established” in a country or |
| |
territory if the service-provider— |
| |
(a) | effectively pursues an economic activity using a fixed establishment |
| |
in that country or territory for an indefinite period, and |
| |
(b) | is a national of an EEA state or a body mentioned in Article 48 of the |
| |
| |
(6) | The presence or use in a particular place of equipment or other technical |
| |
means of providing an information society service is not itself sufficient to |
| |
constitute the establishment of a service-provider. |
| |
(7) | Where it cannot be decided from which of a number of establishments an |
| |
information society service is provided, the service is to be regarded as |
| |
| |
|
| |
| |
| |
| |
| |
961. This Schedule sets out a number of amendments to the following acts: the Local |
| |
Government Act 1988, the Employment Act 1989 and the Equality Act 2006. These |
| |
amendments are necessary to ensure that these Acts refer accurately to the new provisions |
| |
contained in the Bill and work properly with those new provisions. For example, where a new |
| |
term or a new definition is used in the Bill and an existing Act refers to the term in current |
| |
legislation which is being repealed, the existing Act needs to be amended to refer to the new |
| |
| |
Local Government Act 1988: paragraphs 1 to 4 |
| |
| |
962. This paragraph amends Part 2 of the Local Government Act 1988 (“the 1988 Act”) so |
| |
as to provide that the public bodies to which that Part applies may exercise a function by |
| |
reference to a non-commercial matter to the extent that the authorities consider it necessary or |
| |
expedient to do so in order to comply with the equality duty. |
| |
| |
963. Section 17 of the 1988 Act prevents public authorities to which that Part applies from |
| |
introducing certain non-commercial matters into the procurement process; these are set out at |
| |
subsection 5 of that Act. Section 18 of the 1988 Act ensured that section 17 of that Act did not |
| |
restrict those authorities from complying with their duties under the Race Relations Act 1976. |
| |
It achieved this by permitting those authorities to ask six approved questions of their |
| |
| |
964. The Local Government Best Value (Exclusion of Non- commercial Considerations) |
| |
Order 2001 (SI 2001/9090) modified sections 17(5)(a) and (d) of the 1988 Act so that matters |
| |
relating to the terms and conditions of employment etc. of a contractor’s workforce, and the |
| |
conduct of contractors or their workers in industrial disputes cease to be non-commercial |
| |
matters only so far as necessary or expedient to permit or facilitate compliance with the best |
| |
value requirements of the Local Government Act 1999 or the Transfer of Undertakings |
| |
(Protection of Employment Regulations) 1981. Similar amendments were made for Scotland |
| |
| |
| |
• An authority which is not a Best Value Authority, which was previously permitted to |
| |
ask only the six approved questions of its contractors on the race duty, will now be able |
| |
to consider broader issues on equality when contracting for public supply or works as |
| |
the authority sees fit in order to comply with the requirements of the equality duty. |
| |
• A local authority wants to contract with a private company. It will be able to take into |
| |
account the ethnic make-up of the workforce of that company, the behaviour of that |
| |
company during an industrial dispute, and any other issue which is defined as non- |
| |
| |
|
| |
| |
| |
provided from the establishment at the centre of the information society |
| |
service provider’s activities relating to that service. |
| |
(8) | Section 199(4) does not apply to references to providing a service. |
| |
| |
| |
| |
Local Government Act 1988 |
| |
1 | Part 2 of the Local Government Act 1988 (public supply or works contracts) |
| |
| |
2 | In section 17 (local and other public authority contracts: exclusion of non- |
| |
commercial considerations)— |
| |
(a) | omit subsection (9), and |
| |
(b) | after that subsection insert— |
| |
“(10) | This section does not prevent a public authority to which it |
| |
applies from exercising any function regulated by this section |
| |
with reference to a non-commercial matter to the extent that |
| |
the authority considers it necessary or expedient to do so to |
| |
enable or facilitate compliance with— |
| |
(a) | the duty imposed on it by section 143 of the Equality |
| |
Act 2009 (public sector equality duty), or |
| |
(b) | any duty imposed on it by regulations under section |
| |
147 or 148 of that Act (powers to impose specific |
| |
| |
3 | Omit section 18 (exceptions to section 17 relating to race relations matters). |
| |
4 | In section 19 (provisions supplementary to or consequential on section 17) |
| |
| |
| |
5 (1) | Section 12 of the Employment Act 1989 (Sikhs: requirements as to safety |
| |
helmets) is amended as follows. |
| |
(2) | In subsection (1), for “requirement or condition”, in the first three places, |
| |
substitute “provision, criterion or practice”. |
| |
(3) | In that subsection, for the words from “section 1(1)(b)” to the end substitute |
| |
“section 18 of the Equality Act 2009 (indirect discrimination), the provision, |
| |
criterion or practice is to be taken as one in relation to which the condition |
| |
in subsection (2)(d) of that section (proportionate means of achieving a |
| |
legitimate aim) is satisfied”. |
| |
(4) | In subsection (2), for the words from “the Race Relations Act” to the end |
| |
substitute “section 13 of the Equality Act 2009 as giving rise to |
| |
discrimination against any other person”. |
| |
| |
|
| |
| |
| |
commercial, when deciding to award the contract, but only if it considers it is |
| |
necessary to do so in order to meet the requirements of the equality duty. |
| |
Equality Act 2006:: paragraph 13 |
| |
| |
965. This amendment to the Equality Act 2006 allows the Equality and Human Rights |
| |
Commission to use its enforcement powers, such as the power to conduct investigations and |
| |
the power to apply for an injunction, in relation to unlawful direct and indirect discrimination |
| |
under the Bill, including the making of arrangements which would result in direct |
| |
discrimination, if applied to an individual. It can also use its powers in relation to |
| |
discrimination arising from disability and discrimination in cases where the relationship |
| |
between the parties has ended. |
| |
966. It allows the Equality and Human Rights Commission to use its powers whether or not |
| |
it knows or suspects that an individual has been affected by the discrimination. It makes clear |
| |
that nothing in the Equality Act 2006 affects an individual’s right to bring a claim under the |
| |
| |
| |
967. This amendment partially replaces provisions in current discrimination law relating to |
| |
discriminatory practices and discriminatory advertisements. The substantive prohibition |
| |
against discriminatory practices and advertisements is no longer required as it is covered |
| |
elsewhere in the Bill. This amendment therefore only covers the enforcement aspects of those |
| |
clauses. Enforcement by the Equality and Human Rights Commission has been extended to |
| |
cover both direct and indirect discrimination because of any of the protected characteristics, as |
| |
well as discrimination arising from disability. |
| |
| |
• A golf club operates an informal but well-known policy of not offering membership to |
| |
people from ethnic minority communities, which discourages people from these |
| |
communities from applying. The Equality and Human Rights Commission may |
| |
investigate this unofficial discriminatory policy even though it is not aware of |
| |
particular individuals directly affected by it. |
| |
• A Bed and Breakfast (B&B) advertises for customers but includes a statement that it |
| |
does not welcome people from the Gypsy and Traveller communities. Even though the |
| |
Equality and Human Rights Commission can take action, an individual who is |
| |
discouraged from staying at the B&B can still bring a claim in his or her own right. |
| |
Schedule 27: Repeals and revocations |
| |
| |
968. This Schedule lists the current legislative provisions which will cease to have effect |
| |
once the relevant provisions in the Bill come into force. |
| |
| |
|
