Schedule 25 — Information society services
• An on-line retailer, which provides tickets to major sporting events, provides
discounts to large groups of men but not women when booking hospitality packages
for the forthcoming football world cup. The on-line retailer is established in Germany
so in this instance a case of direct sex discrimination would have to be brought in the
German courts regardless of whether the complainant was in the United Kingdom or
another EEA member state.
the transmission in a communication network of information
provided by the recipient of the service.
But sub-paragraph (1) applies only if the service provider does not—
initiate the transmission;
select the recipient of the transmission;
select or modify the information contained in the transmission.
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.
Sub-paragraph (3) does not apply if the information is stored for longer than
is reasonably necessary for the transmission.
Exception for caching
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.
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—
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
the condition in sub-paragraph (3) is satisfied.
The condition is that the service-provider—
does not modify the information,
complies with such conditions as are attached to having access to the
(where sub-paragraph (4) applies) expeditiously removes the
information or disables access to it.
This sub-paragraph applies if the service-provider obtains actual knowledge
the information at the initial source of the transmission has been
removed from the network,
access to it has been disabled, or
a court or administrative authority has required the removal from
the network of, or the disablement of access to, the information.
Exception for hosting
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,
the service provider had no actual knowledge when the information
was provided that its provision amounted to a contravention of this
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.
Sub-paragraph (1) does not apply if the recipient of the service is acting
under the authority of the control of the service provider.
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 liability the imposition of which would contravene Article 12, 13 or
14 of the E-Commerce Directive;
a general obligation of the description given in Article 15 of that
This paragraph applies for the purposes of this Schedule.
“Information society service”—
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
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
recipient of a service”.
“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).
“Recipient” means a person who (whether for professional purposes or not)
uses an information society service, in particular for seeking information or
making it accessible.
An information society service-provider is “established” in a country or
territory if the service-provider—
effectively pursues an economic activity using a fixed establishment
in that country or territory for an indefinite period, and
is a national of an EEA state or a body mentioned in Article 48 of the
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.
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
Schedule 26: Amendments
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
term or definition.
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-
Schedule 26 — Amendments
provided from the establishment at the centre of the information society
service provider’s activities relating to that service.
Section 199(4) does not apply to references to providing a service.
Local Government Act 1988
Part 2 of the Local Government Act 1988 (public supply or works contracts)
is amended as follows.
In section 17 (local and other public authority contracts: exclusion of non-
omit subsection (9), and
after that subsection insert—
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—
the duty imposed on it by section 143 of the Equality
Act 2009 (public sector equality duty), or
any duty imposed on it by regulations under section
147 or 148 of that Act (powers to impose specific
Omit section 18 (exceptions to section 17 relating to race relations matters).
In section 19 (provisions supplementary to or consequential on section 17)
omit subsection (10).
Employment Act 1989
Section 12 of the Employment Act 1989 (Sikhs: requirements as to safety
helmets) is amended as follows.
In subsection (1), for “requirement or condition”, in the first three places,
substitute “provision, criterion or practice”.
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”.
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.