Communications Act 2003

Type Public General Act
Publication 2003-07-17
Last updated 2026-04-06
State In force
Department Statute Law Database
articles 1
Reform history JSON API
  • (a) give the provider a decision (“a confirmation decision”) confirming the imposition of requirements on the provider in accordance with the notification under section 105Z18; or
  • (b) inform the provider that no further action will be taken.
  • (3) The Secretary of State may not give the provider a confirmation decision unless, after considering any representations, the Secretary of State is satisfied that the provider has, in one or more of the ways specified in the notification under section 105Z18, contravened—
  • (a) a requirement imposed by a designated vendor direction, or
  • (b) a requirement imposed under section 105Z7,

specified in the notification under section 105Z18.

  • (4) A confirmation decision must be given to the provider without delay.
  • (5) A confirmation decision must include reasons for the decision.
  • (6) A confirmation decision may—
  • (a) require immediate action by the provider—
  • (i) to comply with the requirement specified in the notification under section 105Z18, and
  • (ii) to remedy the consequences of the contravention, or
  • (b) specify a period within which the provider must comply with that requirement and remedy those consequences,

and may specify the steps to be taken by the provider in order to comply with that requirement or remedy those consequences.

  • (7) A confirmation decision may require the provider to pay—
  • (a) the penalty specified in the notification under section 105Z18, or
  • (b) such lesser penalty as the Secretary of State considers appropriate in the light of—
  • (i) any representations made by the provider, and
  • (ii) any steps taken by the provider to comply with the requirement specified in the notification under section 105Z18 or to remedy the consequences of the contravention,

and may specify the period within which the penalty is to be paid.

  • (8) It is the duty of the provider to comply with any requirement imposed by a confirmation decision.
  • (9) The Secretary of State may enforce the provider’s duty in civil proceedings—
  • (a) for an injunction;
  • (b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or
  • (c) for any other appropriate remedy or relief.

Enforcement of penalty

105Z21
  • (1) This section applies where a sum is payable to the Secretary of State as a penalty under section 105Z20.
  • (2) In England and Wales, the penalty is recoverable as if it were payable under an order of the county court.
  • (3) In Scotland, the penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
  • (4) In Northern Ireland, the penalty is recoverable as if it were payable under an order of a county court in Northern Ireland.
  • (5) Where action is taken under this section for the recovery of a sum payable as a penalty under section 105Z20, the penalty is—
  • (a) in relation to England and Wales, to be treated for the purposes of section 98 of the Courts Act 2003 (register of judgments and orders etc) as if it were a judgment entered in the county court;

Urgent enforcement direction

105Z22
  • (1) The Secretary of State may give a direction under this section (“an urgent enforcement direction”) to a person if the Secretary of State determines that—
  • (a) there are reasonable grounds for believing that the person is contravening, or has contravened—
  • (i) a requirement imposed by a designated vendor direction; or
  • (ii) a requirement not to disclose imposed under section 105Z25;
  • (b) there are reasonable grounds for suspecting that the case is an urgent case; and
  • (c) the urgency of the case makes it appropriate for the Secretary of State to take action under this section.
  • (2) A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—
  • (a) a serious threat to national security; or
  • (b) significant harm to the security of a public electronic communications network, a public electronic communications service or a facility that is an associated facility by reference to such a network or service.
  • (3) An urgent enforcement direction must—
  • (a) specify the requirement and contravention in respect of which it is given;
  • (b) require the person to take such steps falling within subsection (4) as are specified in the direction;
  • (c) specify a period within which those steps must be taken; and
  • (d) specify the Secretary of State’s reasons for giving the direction.
  • (4) The steps falling within this subsection are the steps that the Secretary of State has determined are appropriate—
  • (a) for complying with the requirement; or
  • (b) for remedying the consequences of the contravention.
  • (5) The requirement in subsection (3)(d) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the direction would be contrary to the interests of national security.

Urgent enforcement direction: confirmation

105Z23
  • (1) As soon as reasonably practicable after giving an urgent enforcement direction, the Secretary of State must—
  • (a) confirm the direction; or
  • (b) revoke the direction (see section 105Z24).
  • (2) The Secretary of State may confirm an urgent enforcement direction with or without modifications.
  • (3) The Secretary of State may confirm an urgent enforcement direction only if the Secretary of State has determined that—
  • (a) the person is contravening, or has contravened—
  • (i) a requirement imposed by a designated vendor direction; or
  • (ii) a requirement not to disclose imposed under section 105Z25;
  • (b) the contravention has resulted in, or creates an immediate risk of, a threat or harm described in section 105Z22(2)(a) or (b); and
  • (c) it is appropriate to confirm the urgent enforcement direction, with any modifications, to prevent, reduce or remove that threat or harm or immediate risk.
  • (4) Before confirming an urgent enforcement direction, the Secretary of State must—
  • (a) give notice to the person to whom the direction was given that the Secretary of State proposes to confirm the direction; and
  • (b) give the person—
  • (i) an opportunity of making representations about the grounds on which it was given and its effect; and
  • (ii) an opportunity of proposing steps to remedy the situation.
  • (5) The notice under subsection (4)(a) must—
  • (a) state that the Secretary of State proposes to confirm the direction;
  • (b) specify any proposed modifications of the direction;
  • (c) specify the Secretary of State’s reasons for confirming the direction and for any modifications; and
  • (d) specify a reasonable period for making representations.
  • (6) The requirement in subsection (5)(c) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security.
  • (7) As soon as reasonably practicable after determining whether to confirm the direction, the Secretary of State must by notice inform the person to whom it was given of the determination.

Urgent enforcement direction: enforcement

105Z24
  • (1) A person who is given an urgent enforcement direction must comply with it, whether or not it has been confirmed (unless it is revoked).
  • (2) The duty is enforceable in civil proceedings by the Secretary of State—
  • (a) for an injunction;
  • (b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or
  • (c) for any other appropriate remedy or relief.

Requirement not to disclose

105Z25
  • (1) The Secretary of State may require a public communications provider which has been given a designated vendor direction or a designated vendor who has been sent a copy under section 105Z4 not to disclose to any other person the contents of—
  • (a) the designated vendor direction, or
  • (b) a part of the designated vendor direction specified by the Secretary of State,

without the permission of the Secretary of State.

  • (2) The Secretary of State may require a designated vendor not to disclose to any other person the contents of—
  • (a) the designation notice, or
  • (b) a part of the designation notice specified by the Secretary of State,

without the permission of the Secretary of State.

  • (3) The Secretary of State may require a public communications provider which has been given a notification under section 105Z18 (notification of contravention of designated vendor direction etc) not to disclose to any other person the existence or contents of—
  • (a) the notification, or
  • (b) a part of the notification specified by the Secretary of State,

without the permission of the Secretary of State.

  • (4) The Secretary of State may require a public communications provider which has been given a confirmation decision under section 105Z20 (enforcement of notification under section 105Z18) not to disclose to any other person the existence or contents of—
  • (a) the confirmation decision, or
  • (b) a part of the confirmation decision specified by the Secretary of State,

without the permission of the Secretary of State.

  • (5) The Secretary of State may require a person who has been given an urgent enforcement direction not to disclose to any other person the existence or contents of—
  • (a) the urgent enforcement direction, or
  • (b) a part of the urgent enforcement direction specified by the Secretary of State,

without the permission of the Secretary of State.

  • (6) The Secretary of State may require a person who has been given a notice under section 105Z23(4)(a) or (7) (notices relating to confirmation of an urgent enforcement direction) not to disclose to any other person the existence or contents of—
  • (a) the notice, or
  • (b) a part of the notice specified by the Secretary of State,

without the permission of the Secretary of State.

  • (7) The Secretary of State may not impose a requirement on a person under subsection (1), (2), (3), (4), (5) or (6) unless the condition in subsection (8) is satisfied.
  • (8) The condition in this subsection is that the Secretary of State considers that it would be contrary to the interests of national security for—
  • (a) the contents of the designated vendor direction or the part specified under subsection (1),
  • (b) the contents of the designation notice or the part specified under subsection (2),
  • (c) the existence or contents of the notification under section 105Z18 or the part specified under subsection (3),
  • (d) the existence or contents of the confirmation decision under section 105Z20 or the part specified under subsection (4),
  • (e) the existence or contents of the urgent enforcement direction or the part specified under subsection (5), or
  • (f) the existence or contents of the notice under section 105Z23(4)(a) or (7) or the part specified under subsection (6),

(as the case may be) to be disclosed, except as permitted by the Secretary of State.

  • (9) If the condition in subsection (10) is satisfied, the Secretary of State may require a person consulted under section 105Z3(1), 105Z5(4), 105Z9(1) or 105Z10(4) not to disclose to any other person—
  • (a) the existence of the consultation and any information disclosed to the person in the consultation, or
  • (b) the existence of a part of the consultation specified by the Secretary of State and any information disclosed to the person in that part of the consultation,

without the permission of the Secretary of State.

  • (10) The condition in this subsection is that the Secretary of State considers that it would be contrary to the interests of national security for the matters described in subsection (9)(a) or (as the case may be) subsection (9)(b) to be disclosed, except as permitted by the Secretary of State.
  • (11) Where a person is subject to a requirement under this section not to disclose a matter, disclosure of that matter by an employee of the person or a person engaged in the person’s business is to be regarded as a disclosure by the person, unless the person can show that the person took all reasonable steps to prevent such a disclosure.

Enforcement of requirement not to disclose

105Z26
  • (1) Sections 105Z18, 105Z19(1) to (3), 105Z20 and 105Z21 apply in relation to a contravention by a person of a requirement not to disclose imposed under section 105Z25 as they apply in relation to a contravention by a public communications provider of a requirement imposed by a designated vendor direction, subject to subsections (2) to (6).
  • (2) Section 105Z18 (as applied by this section) has effect as if, in subsection (2)(d), for sub-paragraphs (i) and (ii) there were substituted—

(i) bring the contravention to an end; (ii) limit the consequences of the contravention;

.

  • (3) Section 105Z19 (as applied by this section) has effect as if—
  • (a) in subsection (2), the maximum penalty specified were £10 million;
  • (b) in subsection (3), the maximum penalty specified were £50,000 per day.
  • (4) The Secretary of State may by regulations amend subsection (3) so as to substitute a different amount for the amount for the time being specified in subsection (3)(a) or (b).
  • (5) No regulations are to be made containing provision authorised by subsection (4) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.
  • (6) Section 105Z20 (as applied by this section) has effect as if—
  • (a) in subsection (6)—
  • (i) in paragraph (a), for sub-paragraphs (i) and (ii) there were substituted—

(i) to bring the contravention to an end, and (ii) to limit the consequences of the contravention,

;

  • (ii) in paragraph (b), for “comply with that requirement and remedy” there were substituted “bring that contravention to an end and limit”;
  • (iii) in the words following paragraph (b), for “comply with that requirement or remedy” there were substituted “bring that contravention to an end or limit”;
  • (b) in subsection (7)(b)(ii), for the words from “comply” to “remedy” there were substituted “bring the contravention to an end or to limit”.

Power of Secretary of State to require information etc

105Z27
  • (1) The Secretary of State may require a person falling within subsection (2) to provide the Secretary of State with such information as the Secretary of State may reasonably require for the purpose of exercising the Secretary of State’s functions under sections 105Z1 to 105Z26.
  • (2) The persons falling within this subsection are—
  • (a) a person who is or has been a public communications provider;
  • (b) a person not falling within paragraph (a) who appears to the Secretary of State to have information relevant to the exercise of the Secretary of State’s functions under sections 105Z1 to 105Z26.
  • (3) The Secretary of State may require a person falling within subsection (2)—
  • (a) to produce, generate or obtain information for the purpose of providing it under subsection (1);
  • (b) to collect or retain information that the person would not otherwise collect or retain for the purpose of providing it under subsection (1);
  • (c) to process, collate or analyse any information held by the person (including information the person has been required to collect or retain) for the purpose of producing or generating information to be provided under subsection (1).
  • (4) The information that may be required under subsection (1) includes, in particular, information about—
  • (a) the use, or proposed use, of goods, services or facilities supplied, provided or made available by a particular person or a particular description of person;
  • (b) goods, services or facilities proposed to be supplied, provided or made available by a particular person or a particular description of person;
  • (c) goods, services or facilities proposed to be supplied, provided or made available by a person who has not, or has not recently, supplied, provided or made available for use in the United Kingdom—
  • (i) goods, services or facilities of that description; or
  • (ii) any goods, services or facilities;
  • (d) the manner in which a public electronic communications network or a public electronic communications service is, or is proposed to be, provided or facilities that are associated facilities by reference to such a network or service are, or are proposed to be, made available;
  • (e) future developments of such a network or service or such associated facilities.
  • (5) The Secretary of State may require a person to provide information under this section at such times or in such circumstances as may be specified by the Secretary of State.
  • (6) A person must comply with a requirement imposed under this section in such manner and within such reasonable period as may be specified by the Secretary of State.
  • (7) The powers in this section are subject to the limitations in section 105Z28.
  • (8) A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility.

Restrictions on imposing information requirements

105Z28
  • (1) This section limits the purposes for which, and manner in which, requirements may be imposed under section 105Z27.
  • (2) The Secretary of State is not to require a person to provide information under section 105Z27 except by a notice served on the person that—
  • (a) describes the required information; and
  • (b) sets out the Secretary of State’s reasons for requiring it.
  • (3) The Secretary of State is not to impose a requirement on a person under section 105Z27(3) except by a notice served on the person that sets out the requirement and the Secretary of State’s reasons for imposing it.
  • (4) The requirements in subsections (2)(b) and (3) do not apply if or to the extent that the Secretary of State considers that setting out reasons in the notice would be contrary to the interests of national security.
  • (5) The Secretary of State is not to require the provision of information under section 105Z27 except where the making of a demand for the information is proportionate to the use to which the information is to be put in the carrying out of the Secretary of State’s functions.
  • (6) The Secretary of State is not to impose a requirement on a person under section 105Z27(3) except where the imposition of the requirement is proportionate to the use to which the information required to be produced, generated, obtained, collected or retained (including information required to be produced or generated by processing, collating or analysing) is to be put in the carrying out of the Secretary of State’s functions.
  • (7) A requirement to provide information under section 105Z27 does not require a person to disclose information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings.

Enforcement of information requirements etc

105Z29
  • (1) Sections 105Z18, 105Z19(1) to (3), 105Z20 and 105Z21 apply in relation to a contravention by a person of a requirement under section 105Z27 as they apply in relation to a contravention by a public communications provider of a requirement imposed by a designated vendor direction, subject to subsection (2).
  • (2) Section 105Z19 (as applied by this section) has effect as if—
  • (a) in subsection (2), the maximum penalty specified were £10 million;
  • (b) in subsection (3), the maximum penalty specified were £50,000 per day.
  • (3) The Secretary of State may by regulations amend subsection (2) so as to substitute a different amount for the amount for the time being specified in subsection (2)(a) or (b).
  • (4) No regulations are to be made containing provision authorised by subsection (3) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.
139ZA
  • (1) This section applies where—
  • (a) a person is given a notification under section 138 which specifies a proposed penalty; and
  • (b) the condition in subsection (2) or (3) is met.
  • (2) The condition in this subsection is that—
  • (a) the proposed penalty is in respect of a contravention of a requirement to provide information under section 135; and
  • (b) the demand for the information contains a statement that OFCOM consider the information to be necessary for the purpose of—
  • (i) carrying out any of their functions under sections 105L to 105Z;
  • (ii) preparing a report under section 105Z12.
  • (3) The condition in this subsection is that the proposed penalty is in respect of a contravention of a requirement imposed under subsection (3C) of section 135.
  • (4) Section 139 applies in relation to the proposed penalty as if—
  • (a) in subsection (4B), the maximum penalty specified were £50,000 per day;
  • (b) in subsection (5), the maximum penalty specified were £10 million.
  • (5) The Secretary of State may by regulations amend this section so as to make different provision as to the maximum penalty applying under section 139(4B) or (5).
  • (6) No regulations are to be made containing provision authorised by subsection (5) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.
7D

A decision to impose a duty under section 105Z14.

11A

A decision to require information under section 135, so far as the information is required for the purpose of preparing a report under section 105Z12.

Objectives for advertisements: less healthy food and drink

321A
  • (1) OFCOM must set standards by virtue of section 321(1)(b) prohibiting television programme services provided between 5.30 am and 9.00 pm from including advertisements for an identifiable less healthy food or drink product, except as provided for by subsection (3).
  • (2) OFCOM must ensure that the prohibition provided for by the first standards set by virtue of subsection (1) takes effect from the beginning of 5 January 2026.
  • (3) Standards set by virtue of subsection (1) must exempt from the prohibition imposed by them—
  • (a) advertisements included in television programme services as a result of arrangements made by or on behalf of a person who is, at the time when the arrangements are made, a food or drink SME;
  • (b) advertisements prescribed in any regulations made by the Secretary of State under this paragraph.
  • (4) For the purposes of this section—
  • (a) “advertisements” includes advertisements under a sponsorship agreement and anything else which, under a sponsorship agreement, is included in a television programme service, other than in a television programme;
  • (b) a product is “identifiable”, in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product;
  • (c) a food or drink product is “less healthy” if—
  • (i) it falls within a description specified in regulations made by the Secretary of State, and
  • (ii) it is “less healthy” in accordance with the relevant guidance;
  • (d) “the relevant guidance” is the guidance entitled “Nutrient Profiling Technical Guidance” published by the Department of Health on 1 January 2011;
  • (e) “food or drink SME” means a small or medium enterprise, within the meaning given by regulations made by the Secretary of State, of a description specified in the regulations.
  • (5) Regulations under subsection (4)(e) that make provision by reference to the number of members of staff of a person may make provision about who is to count as a member of staff (including members of staff of another person).
  • (6) The Secretary of State may, before the date specified in subsection (2), amend that subsection so as to substitute a later date for the date that is for the time being specified there.
  • (7) The Secretary of State may by regulations amend this section to change the meaning of “the relevant guidance”.
  • (8) Before making regulations under subsection (3)(b) or (7), the Secretary of State must consult such persons as the Secretary of State considers appropriate.
  • (9) A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

Advertising: less healthy food and drink

368FA
  • (1) From the beginning of 5 January 2026, on-demand programme services must not, between 5.30 am and 9.00 pm, include advertisements for an identifiable less healthy food or drink product.
  • (2) The prohibition imposed by subsection (1) does not apply in relation to advertisements included in on-demand programme services as a result of arrangements made by or on behalf of a person who is, at the time when the arrangements are made, a food or drink SME.
  • (3) The Secretary of State may by regulations provide for further exemptions from the prohibition imposed by subsection (1).
  • (4) For the purposes of this section—
  • (a) “advertisements” includes advertisements and sponsorship announcements (within the meaning given by section 368G(17)) under a sponsorship agreement;
  • (b) a product is “identifiable”, in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product;
  • (c) a food or drink product is “less healthy” if—
  • (i) it falls within a description specified in regulations made by the Secretary of State, and
  • (ii) it is “less healthy” in accordance with the relevant guidance;
  • (d) “the relevant guidance” means the guidance entitled “Nutrient Profiling Technical Guidance” published by the Department of Health on 1 January 2011;
  • (e) “food or drink SME” means a small or medium enterprise, within the meaning given by regulations made by the Secretary of State, of a description specified in the regulations.
  • (5) Regulations under subsection (4)(e) that make provision by reference to the number of members of staff of a person may make provision about who is to count as a member of staff (including members of staff of another person).
  • (6) The Secretary of State may, before the date specified in subsection (1), amend that subsection so as to substitute a later date for the date that is for the time being specified there.
  • (7) The Secretary of State may by regulations amend this section to change the meaning of “the relevant guidance”.
  • (8) Before making regulations under subsection (3) or (7), the Secretary of State must consult such persons as the Secretary of State considers appropriate.
  • (9) A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

PART 4C — Online advertising of less healthy food and drink

Advertising of less healthy food and drink

Prohibition of paid-for advertising of less healthy food and drink

368Z14
  • (1) From the beginning of 5 January 2026, a person must not pay for advertisements for an identifiable less healthy food or drink product to be placed on the internet.
  • (2) Subsection (1) does not apply where the person paying is, at the time when the payment is made, a food or drink SME.
  • (3) Subsection (1) does not apply—
  • (a) in relation to advertisements which are directed solely at persons who are engaged in, or employed by, a business which involves or is associated with the manufacture or sale of food or drink,
  • (b) in relation to advertisements included in on-demand programme services or in non-UK on-demand programme services that are Tier 1 services (as to which, see sections 368FA and 368HE(2)(e)),
  • (c) in relation to advertisements included in services connected to regulated radio services, or
  • (d) in relation to advertisements which are not intended to be accessed principally by persons in any part of the United Kingdom.
  • (4) The Secretary of State may by regulations provide for further exemptions from the prohibition imposed by subsection (1).
  • (5) For the purposes of this section—
  • (a) paying includes providing any consideration (monetary or non-monetary);
  • (b) “placed” includes continues to be placed;
  • (c) paying for advertisements to be placed on the internet includes paying under a sponsorship agreement as result of which advertisements are placed on the internet;
  • (d) a product is “identifiable”, in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product;
  • (e) a food or drink product is “less healthy” if—
  • (i) it falls within a description specified in regulations made by the Secretary of State, and
  • (ii) it is “less healthy” in accordance with the relevant guidance;
  • (f) “the relevant guidance” is the guidance entitled “Nutrient Profiling Technical Guidance” published by the Department of Health on 1 January 2011;
  • (g) “food or drink SME” means a small or medium enterprise, within the meaning given by regulations made by the Secretary of State, of a description specified in the regulations;
  • (h) “services connected to regulated radio services” has the meaning given by regulations made by the Secretary of State.
  • (6) Regulations under subsection (5)(g) that make provision by reference to the number of members of staff of a person may make provision about who is to count as a member of staff (including members of staff of another person).
  • (7) The Secretary of State may, before the date specified in subsection (1)—
  • (a) amend that subsection so as to substitute a later date for the date that is for the time being specified there, and
  • (b) make corresponding amendments to the references to that date in subsections (11) and (12).
  • (8) The Secretary of State may by regulations amend this section to change the meaning of “the relevant guidance”.
  • (9) Before making regulations under subsection (4) or (8), the Secretary of State must consult such persons as the Secretary of State considers appropriate.
  • (10) A statutory instrument containing regulations under subsection (8) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
  • (11) A person is to be treated as having contravened subsection (1) if—
  • (a) at any time on or after 1 August 2021 but before 5 January 2026, the person made a payment for advertisements to be placed on the internet on or after 5 January 2026, and
  • (b) if the payment had been made on 5 January 2026, the person would have contravened subsection (1).
  • (12) Subsection (11) does not apply if the person—
  • (a) has put in place arrangements to ensure that they are entitled to require that the advertisements are not placed on the internet on or after 5 January 2026, and
  • (b) uses all reasonable endeavours to ensure that the advertisements are not so placed.

Enforcement

368Z15
  • (1) Where the appropriate regulatory authority determine that a person is contravening or has contravened section 368Z14 they may do one or both of the following—
  • (a) give the person an enforcement notification;
  • (b) impose a financial penalty on the person in accordance with section 368Z16.
  • (2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless—
  • (a) there are reasonable grounds for believing that a contravention of section 368Z14 is occurring or has occurred, and
  • (b) they have allowed the person an opportunity to make representations about that apparent contravention.
  • (3) An enforcement notification is a notification which—
  • (a) specifies the determination made as mentioned in subsection (1),
  • (b) imposes requirements on the person to take such steps for complying with section 368Z14 and for remedying the consequences of the contravention as may be specified in the notification,
  • (c) fixes a reasonable period for the taking of those steps, and
  • (d) sets out the reasons for the appropriate regulatory authority’s decision to give the enforcement notification.
  • (4) The requirements specified in an enforcement notification may include requirements to do one or more of the following—
  • (a) instruct or request specified persons to remove specified advertisements from the internet;
  • (b) arrange for specified advertisements to be modified in specified ways.
  • (5) A person to whom an enforcement notification is given must comply with it.
  • (6) The duty under subsection (5) is enforceable in civil proceedings by the appropriate regulatory authority—
  • (a) for an injunction,
  • (b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or
  • (c) for any other appropriate remedy or relief.
  • (7) If a person to whom an enforcement notification has been given does not comply with it, the appropriate regulatory authority may impose a financial penalty on that person in accordance with section 368Z16.

Financial penalties

368Z16
  • (1) The amount of a penalty imposed on a person under section 368Z15 is to be such amount not exceeding the maximum penalty as the appropriate regulatory authority determine to be—
  • (a) appropriate, and
  • (b) proportionate to the contravention in respect of which it is imposed.
  • (2) The maximum penalty is—
  • (a) in a case in which the person carries on a relevant business, an amount not exceeding the greater of—
  • (i) 5% of the turnover of the person’s relevant business for the relevant period, and
  • (ii) £250,000;
  • (b) in any other case, £250,000.
  • (3) For the purposes of this section—
  • (a) a person’s “relevant business” is so much of any business carried on by the person as involves or is associated with the manufacture or sale of less healthy food or drink products;
  • (b) “relevant period”, in relation to a person’s relevant business, means—
  • (i) except in a case falling within sub-paragraph (ii) or (iii), the period of one year ending with the 31 March before the time at which the penalty is imposed;
  • (ii) in the case of a person who at the time at which the penalty is imposed has been carrying on that business for a period of less than a year, the period, ending with that time, during which the person has been carrying it on;
  • (iii) in the case of a person who at the time at which the penalty is imposed has ceased to carry on that business, the period of one year ending with the time when the person ceased to carry it on;
  • (c) the amount of the turnover of a person’s relevant business for the relevant period is to be calculated by the appropriate regulatory authority in accordance with the following sub-paragraphs—
  • (i) the amount is to be calculated in conformity with accounting practices and principles which are generally accepted in the United Kingdom;
  • (ii) the amount is limited to the amounts derived by the person from the relevant business after deduction of sales rebates, value added tax and other taxes directly related to turnover;
  • (iii) where the person’s relevant business consists of two or more undertakings that each prepare accounts, the amount is to be calculated by adding together the turnover of each, save that no account is to be taken of any turnover resulting from the supply of goods or the provision of services between them.
  • (4) In determining the amount of a penalty under subsection (1) the appropriate regulatory authority must have regard to any statement published by OFCOM under section 392 (guidelines to be followed in determining amount of penalties).
  • (5) A financial penalty imposed under this section, if not paid within the period fixed by the appropriate regulatory authority, is to be recoverable by the appropriate regulatory authority as a debt due to them from the person obliged to pay it.
  • (6) Where a financial penalty is imposed under this section in respect of matters appearing to OFCOM to have a connection with Northern Ireland and no connection with the rest of the United Kingdom, the penalty must be paid into the Consolidated Fund of Northern Ireland.
  • (7) In any other case, a financial penalty imposed under this section is to be paid into the Consolidated Fund of the United Kingdom.
368Z17
  • (1) The appropriate regulatory authority may give a person a notice demanding information that the authority require for the purpose of carrying out their functions under this Part.
  • (2) The notice may relate to any information that the person appears to have or be able to generate.
  • (3) A notice under this section must—
  • (a) describe the required information,
  • (b) fix a reasonable period within which the information is to be provided, and
  • (c) set out the appropriate regulatory authority’s reasons for requiring it.
  • (4) A notice under this section may specify the manner in which the information is to be provided.
  • (5) The appropriate regulatory authority may not require the provision of information under this section unless they have given the person from whom it is required an opportunity of making representations to them about the matters appearing to them to provide grounds for making the request.
  • (6) Section 368Z15 applies in relation to a failure to comply with a demand for information imposed under this section as if that failure were a contravention of section 368Z14.
  • (7) In this section “information” includes copies of advertisements.
368Z18
  • (1) The appropriate regulatory authority must draw up and, from time to time, review and revise, guidance setting out their intentions concerning the exercise of their functions under this Part.
  • (2) The appropriate regulatory authority must consult the Secretary of State before drawing up or revising the guidance.
  • (3) The appropriate regulatory authority must publish the guidance and any revised guidance in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

The appropriate regulatory authority

368Z19
  • (1) OFCOM may designate any body corporate to be, to the extent provided by the designation, the appropriate regulatory authority for the purposes of any provision of this Part, subject to subsection (9).
  • (2) To the extent that no body is designated for a purpose, OFCOM is the appropriate regulatory authority for that purpose.
  • (3) Where a body is designated for a purpose, OFCOM may act as the appropriate regulatory authority for that purpose concurrently with or in place of that body.
  • (4) OFCOM may provide a designated body with assistance (including financial assistance) in connection with any of the functions of the body under this Part.
  • (5) A designation may in particular—
  • (a) provide for a body to be the appropriate regulatory authority in relation to advertisements of a specified description;
  • (b) provide that a function of the appropriate regulatory authority is exercisable by the designated body—
  • (i) to such extent as may be specified;
  • (ii) either generally or in such circumstances as may be specified;
  • (iii) either unconditionally or subject to such conditions as may be specified.
  • (6) The conditions that may be specified pursuant to subsection (5)(b)(iii) include a condition to the effect that a function may, generally or in specified circumstances, be exercised by the body only with the agreement of OFCOM.
  • (7) A designation has effect for such period as may be specified and may be revoked by OFCOM at any time.
  • (8) OFCOM must publish any designation in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to be affected by it.
  • (9) OFCOM may not designate a body unless, as respects that designation, they are satisfied that the body—
  • (a) is a fit and proper body to be designated,
  • (b) has consented to being designated,
  • (c) has access to financial resources that are adequate to ensure the effective performance of its functions as the appropriate regulatory authority (taking into account any financial assistance that OFCOM intends to provide under subsection (4)),
  • (d) is sufficiently independent of persons who carry on business that involves or is associated with the manufacture or sale of less healthy food or drink products, and
  • (e) will, in performing any function to which the designation relates, have regard in all cases—
  • (i) to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and
  • (ii) to such of the matters mentioned in section 3(4) as appear to the body to be relevant in the circumstances.
  • (10) Subject to any enactment or rule of law restricting the disclosure or use of information by OFCOM or by a designated body—
  • (a) a designated body may provide information to another designated body for use by that other body in connection with any of its functions as the appropriate regulatory authority;
  • (b) a designated body may provide information to OFCOM for use by OFCOM in connection with any of their functions under this Part;
  • (c) OFCOM may provide information to a designated body for use by that body in connection with any of its functions as the appropriate regulatory authority.
  • (11) In carrying out their functions as the appropriate regulatory authority, a designated body may carry out, commission or support (financially or otherwise) research.
  • (12) In this section—
  • “designation” means a designation under this section and cognate expressions are to be construed accordingly;
  • “specified” means specified in a designation.

Power to amend this Part to extend prohibition

368Z20
  • (1) The Secretary of State may by regulations amend this Part for the purpose of prohibiting persons from doing either or both of the following (so far as not already prohibited)—
  • (a) placing on the internet advertisements for an identifiable less healthy food or drink product;
  • (b) making arrangements for advertisements for an identifiable less healthy food or drink product to be placed on the internet.
  • (2) For the purposes of subsection (1)—
  • (a) “placing” includes leaving in place;
  • (b) “placed” includes continues to be placed.
  • (3) The provision which may be made by regulations under subsection (1) by virtue of section 402(3)(c) includes provision repealing, revoking or amending provision made by or under any of the following whenever passed or made—
  • (a) an Act;
  • (b) an Act of the Scottish Parliament;
  • (c) a Measure or Act of Senedd Cymru;
  • (d) Northern Ireland legislation.
  • (4) Before making regulations under subsection (1), the Secretary of State must consult such persons as the Secretary of State considers appropriate.
  • (5) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
368Z21

In this Part—

  • “appropriate regulatory authority” is to be construed in accordance with section 368Z19;
  • “less healthy”, in relation to a food or drink product, has the meaning given by section 368Z14(5)(e).

Duty to inform users of risk of security compromise

105J
  • (1) This section applies where there is a significant risk of a security compromise occurring in relation to a public electronic communications network or a public electronic communications service.
  • (2) The provider of the network or service must take such steps as are reasonable and proportionate for the purpose of bringing the relevant information, expressed in clear and plain language, to the attention of persons who use the network or service and may be adversely affected by the security compromise.
  • (3) The relevant information is—
  • (a) the existence of the risk of the security compromise occurring;
  • (b) the nature of the security compromise;
  • (c) the technical measures that it may be reasonably practicable for persons who use the network or service to take for the purposes of—
  • (i) preventing the security compromise adversely affecting them;
  • (ii) remedying or mitigating the adverse effect that the security compromise has on them; and
  • (d) the name and contact details of a person from whom further information may be obtained about the security compromise.

Duty to inform OFCOM of security compromise

105K
  • (1) The provider of a public electronic communications network or a public electronic communications service must inform OFCOM as soon as reasonably practicable of—
  • (a) any security compromise that has a significant effect on the operation of the network or service;
  • (b) any security compromise within section 105A(2)(b) that puts any person in a position to be able to bring about a further security compromise that would have a significant effect on the operation of the network or service.
  • (2) In determining for the purposes of this section whether the effect that a security compromise has, or would have, on the operation of a network or service is significant, the following matters in particular are to be taken into account—
  • (a) the length of the period during which the operation of the network or service is or would be affected;
  • (b) the number of persons who use the network or service that are or would be affected by the effect on the operation of the network or service;
  • (c) the size and location of the geographical area within which persons who use the network or service are or would be affected by the effect on the operation of the network or service;
  • (d) the extent to which activities of persons who use the network or service are or would be affected by the effect on the operation of the network or service.

Powers of OFCOM to inform others of security compromise

105L
  • (1) This section applies where OFCOM consider that—
  • (a) there is a risk of a security compromise occurring in relation to a public electronic communications network or public electronic communications service; or
  • (b) a security compromise has occurred in relation to a public electronic communications network or public electronic communications service.
  • (2) OFCOM must inform the Secretary of State of the risk of or (as the case may be) the occurrence of the security compromise if they consider that the security compromise could result in or has resulted in—
  • (a) a serious threat to the safety of the public, to public health or to national security;
  • (b) serious economic or operational problems for persons who are communications providers or persons who make associated facilities available; or
  • (c) serious economic or operational problems for persons who use electronic communications networks, electronic communications services or associated facilities.
  • (3) OFCOM may inform the Secretary of State of the risk of or (as the case may be) the occurrence of the security compromise in a case where the duty in subsection (2) does not arise.
  • (4) OFCOM may inform any of the following about the risk of or (as the case may be) the occurrence of the security compromise—
  • (a) any person who uses or has used the network or service;
  • (b) any communications provider;
  • (c) any person who makes associated facilities available;
  • (d) any overseas regulator;
  • (e) the European Union Agency for Cybersecurity.
  • (5) OFCOM may inform any person who uses or has used the network or service of the technical measures that may be taken by the person for the purposes of—
  • (a) preventing the security compromise adversely affecting them; or
  • (b) remedying or mitigating the adverse effect that the security compromise has on them.
  • (6) OFCOM may direct the provider of the network or service to take steps specified in the direction for the purposes of—
  • (a) informing persons who use or have used the network or service of the risk of or (as the case may be) the occurrence of the security compromise;
  • (b) informing persons who use or have used the network or service of the technical measures that may be taken by them for a purpose mentioned in subsection (5)(a) or (b).
  • (7) OFCOM may if they consider it to be in the public interest—
  • (a) inform the public of the risk of or (as the case may be) the occurrence of the security compromise;
  • (b) inform the public of the technical measures that may be taken by members of the public for a purpose mentioned in subsection (5)(a) or (b);
  • (c) direct the provider of the network or service to do anything that OFCOM could do under paragraph (a) or (b).
  • (8) It is the duty of the provider of the network or service to comply with a direction given under this section within such reasonable period as may be specified in the direction.
  • (9) In this section “overseas regulator” means a person who, under the law of a country or territory outside the United Kingdom, has functions in relation to public electronic communications networks or public electronic communications services that correspond to functions that OFCOM have in relation to such networks or services.

General duty of OFCOM to ensure compliance with security duties

105M

OFCOM must seek to ensure that providers of public electronic communications networks and public electronic communications services comply with the duties imposed on them by or under sections 105A to 105D, 105J and 105K.

Power of OFCOM to assess compliance with security duties

105N
  • (1) OFCOM may carry out, or arrange for another person to carry out, an assessment of whether the provider of a public electronic communications network or a public electronic communications service is complying or has complied with a duty imposed on the provider by or under any of sections 105A to 105D, 105J and 105K.
  • (2) Where an assessment under this section is carried out, the provider of the network or service concerned must—
  • (a) co-operate with the assessment; and
  • (b) pay the costs reasonably incurred by OFCOM in connection with the assessment.

Power of OFCOM to give assessment notices

105O
  • (1) This section applies for the purposes of an assessment under section 105N in respect of the provider of a public electronic communications network or a public electronic communications service.
  • (2) OFCOM may by notice (“an assessment notice”) impose on the provider a duty to do any of the following things—
  • (a) carry out specified tests or tests of a specified description in relation to the network or service;
  • (b) make arrangements of a specified description for another person to carry out specified tests or tests of a specified description in relation to the network or service;
  • (c) make available for interview a specified number of persons of a specified description who are involved in the provision of the network or service (not exceeding the number who are willing to be interviewed);
  • (d) permit an authorised person to enter specified premises;
  • (e) permit an authorised person to observe any operation taking place on the premises that relates to the network or service;
  • (f) direct an authorised person to equipment or other material on the premises that is of a specified description;
  • (g) direct an authorised person to documents on the premises that are of a specified description;
  • (h) assist an authorised person to view information of a specified description that is capable of being viewed using equipment on the premises;
  • (i) comply with a request from an authorised person for a copy of the documents to which the person is directed and the information the person is assisted to view;
  • (j) permit an authorised person to inspect or examine the documents, information, equipment or material to which the person is directed or which the person is assisted to view;
  • (k) provide an authorised person with an explanation of such documents, information, equipment or material.
  • (3) The references in subsection (2)(a) and (b) to tests in relation to the network or service include references to—
  • (a) tests in relation to premises used in connection with the provision of the network or service;
  • (b) tests in relation to persons involved in the provision of the network or service.
  • (4) An assessment notice may impose on the provider a duty to carry out, or to make arrangements for another person to carry out, a test in relation to the network or service that risks causing a security compromise, loss to a person or damage to property only if the test consists of the use of techniques that might be expected to be used by a person seeking to cause a security compromise.
  • (5) An assessment notice may not impose on the provider a duty to permit an authorised person to enter domestic premises.
  • (6) An assessment notice may not impose on the provider a duty to do anything that would result in the disclosure of documents or information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings.
  • (7) An assessment notice must, in relation to each duty imposed by the notice, specify the time or times at which, or period or periods within which, the duty must be complied with.
  • (8) A time or period specified under subsection (7) must not be a time that falls or a period that begins before the end of the period within which an appeal under section 192 can be brought in respect of the assessment notice (ignoring any power to extend the period within which an appeal could be brought).
  • (9) If an appeal under section 192 is brought in respect of an assessment notice or any provision of an assessment notice, the provider need not comply with any duty imposed by the notice or the provision pending the determination or withdrawal of the appeal.
  • (10) An assessment notice must provide information about—
  • (a) the consequences of failing to comply with a duty imposed by the notice; and
  • (b) the right of appeal in respect of the notice under section 192.
  • (11) An assessment notice may by further notice—
  • (a) be revoked by OFCOM;
  • (b) be varied by OFCOM so as to make it less onerous.
  • (12) In this section—
  • “authorised person” means an employee of, or person authorised by, OFCOM;
  • “domestic premises” means premises, or a part of premises, used as a dwelling;
  • “specified” means specified in the assessment notice.
105P
  • (1) This section applies where—
  • (a) an assessment notice is given under section 105O to the provider of a public electronic communications network or a public electronic communications service;
  • (b) the notice states that, in OFCOM’s opinion, it is necessary for the provider to comply with a duty imposed by the notice urgently;
  • (c) the notice gives OFCOM’s reasons for reaching that opinion; and
  • (d) the notice provides information about the right of the provider to make an application under section 105Q.
  • (2) Subsections (8) and (9) of section 105O do not apply in relation to the duty mentioned in subsection (1)(b).
  • (3) A time or period specified under subsection (7) of section 105O in relation to the duty mentioned in subsection (1)(b) must not be a time that falls or a period that begins before the end of the period of 14 days beginning with the day the notice is given.
  • (4) In a case where—
  • (a) the duty mentioned in subsection (1)(b) is a duty to do something mentioned in section 105O(2)(d) to (k), and
  • (b) within the period of 14 days beginning with the day the notice is given an appeal under section 192 is brought in respect of the notice or the provision of the notice that imposes the duty,

the provider of the network or service need not comply with the duty pending the determination or withdrawal of the appeal.

105Q
  • (1) This section applies where an assessment notice given under section 105O to a provider of a public electronic communications network or a public electronic communications service contains a statement under section 105P(1)(b).
  • (2) The provider may apply to the court for either or both of the following—
  • (a) the disapplication of the statement in relation to some or all of the duties imposed by the notice;
  • (b) a change to the time at which, or period within which, a duty imposed by the notice must be complied with.
  • (3) On an application under this section, the court may do any of the following—
  • (a) direct that the notice is to have effect as if it did not contain the statement;
  • (b) direct that the inclusion of the statement is not to have effect in relation to a duty imposed by the notice;
  • (c) vary the notice by changing the time at which, or the period within which, a duty imposed by the notice must be complied with;
  • (d) vary the notice by making other changes required to give effect to a direction under paragraph (a) or (b) or in consequence of a variation under paragraph (c).
  • (4) The decision of the court on an application under this section is final.
  • (5) In this section “the court” means the High Court or, in Scotland, the Court of Session.

Assessment notices: information about entering premises

105R

Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (OFCOM’s annual report) must include a statement of the number of occasions during the financial year to which the report relates on which premises have been entered in pursuance of a duty imposed under section 105O(2)(d).

Enforcement of security duties

105S
  • (1) Sections 96A to 100, 102 and 103 apply in relation to a contravention of a security duty as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition.
  • (2) This section is subject to section 105T (enforcement of security duties: amount of penalties).
  • (3) In this section “security duty” means a duty imposed by or under any of sections 105A to 105D, 105I to 105K, 105L(6), (7)(c) and (8), 105N(2)(a) and 105O.

Enforcement of security duties: amount of penalties

105T
  • (1) In its application in relation to a contravention of a security duty, other than a security duty imposed by section 105I, section 96B(5) has effect as if the maximum penalty specified were £100,000 per day.
  • (2) In its application in relation to a contravention of a security duty imposed by section 105I, section 96B(5) has effect as if the maximum penalty specified were £50,000 per day.
  • (3) In its application in relation to a contravention of a security duty imposed by section 105I, section 97(1) has effect as if the maximum penalty specified were £10 million.
  • (4) The Secretary of State may by regulations amend this section so as to substitute a different amount for the amount for the time being specified in subsection (1), (2) or (3).
  • (5) No regulations are to be made containing provision authorised by subsection (4) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.
  • (6) In this section “security duty” has the same meaning as in section 105S.

Enforcement of security duties: proposal for interim steps

105U
  • (1) This section applies where—
  • (a) OFCOM determine that there are reasonable grounds for believing that the provider of a public electronic communications network or a public electronic communications service is contravening or has contravened a duty imposed by or under any of sections 105A to 105D;
  • (b) OFCOM either have not commenced, or have commenced but not completed, enforcement action in connection with the contravention;
  • (c) OFCOM determine that there are reasonable grounds for believing that either or both of the following conditions are met—
  • (i) a security compromise has occurred as a result of the contravention;
  • (ii) there is an imminent risk of a security compromise or (as the case may be) a further security compromise occurring as a result of the contravention; and
  • (d) OFCOM determine that, having regard to the seriousness or likely seriousness of the security compromise or security compromises mentioned in paragraph (c), it is reasonable to require the provider to take interim steps pending the completion by OFCOM of enforcement action in connection with the contravention.
  • (2) OFCOM may give a notification to the provider that—
  • (a) sets out the determinations mentioned in subsection (1);
  • (b) specifies the interim steps that OFCOM think the provider should be required to take pending the completion by OFCOM of enforcement action in connection with the contravention; and
  • (c) specifies the period during which the provider has an opportunity to make representations about the matters notified.
  • (3) In this section and section 105V—
  • (a) references to the commencement by OFCOM of enforcement action in connection with a contravention are to the giving of a notification under section 96A (as applied by section 105S) in respect of the contravention; and
  • (b) references to the completion by OFCOM of enforcement action in connection with a contravention are to the taking of action under section 96C(2)(a) or (b) (as applied by section 105S) in connection with the contravention.
  • (4) In this section “interim steps” means—
  • (a) in a case where OFCOM determine that there are reasonable grounds for believing that the condition in subsection (1)(c)(i) is met, steps to—
  • (i) prevent adverse effects (on the network or service or otherwise) arising from the security compromise;
  • (ii) remedy or mitigate any adverse effects on the network or service arising from the security compromise;
  • (b) in a case where OFCOM determine that there are reasonable grounds for believing that the condition in subsection (1)(c)(ii) is met, steps to—
  • (i) eliminate or reduce the risk of the security compromise or (as the case may be) the further security compromise occurring;
  • (ii) prevent adverse effects (on the network or service or otherwise) arising from the security compromise or (as the case may be) the further security compromise in the event it occurs.

Enforcement of security duties: direction to take interim steps

105V
  • (1) This section applies where—
  • (a) the provider of a public electronic communications network or a public electronic communications service has been given a notification under section 105U;
  • (b) OFCOM have allowed the provider an opportunity to make representations about the matters notified; and
  • (c) the period allowed for the making of representations has expired.
  • (2) OFCOM may—
  • (a) direct the provider to take the interim steps or any of the interim steps specified in the notification; or
  • (b) inform the provider that a direction under paragraph (a) will not be given.
  • (3) OFCOM may give a direction under subsection (2)(a) only if (after considering any representations) they are satisfied—
  • (a) that there are reasonable grounds for believing that the contravention on the basis of which the notification was given occurred;
  • (b) that there are reasonable grounds for believing that either or both of the following conditions are met—
  • (i) a security compromise has occurred as a result of the contravention;
  • (ii) there is an imminent risk of a security compromise or (as the case may be) a further security compromise occurring as a result of the contravention; and
  • (c) that, having regard to the seriousness or likely seriousness of the security compromise or security compromises mentioned in paragraph (b), it is reasonable to give the direction.
  • (4) A direction under subsection (2)(a) must include a statement of OFCOM’s reasons for giving the direction.
  • (5) A direction under subsection (2)(a) must, in relation to each interim step, specify the period within which the step must be taken.
  • (6) A direction under subsection (2)(a) is ineffective in so far as it would require interim steps to be taken after the completion by OFCOM of enforcement action in connection with the contravention concerned.
  • (7) Where a direction under subsection (2)(a) has been given and has not been revoked, OFCOM must as soon as reasonably practicable—
  • (a) commence enforcement action in connection with the contravention concerned (unless enforcement action was commenced by OFCOM before the direction was given); and
  • (b) complete enforcement action in connection with the contravention concerned.
  • (8) A direction under subsection (2)(a) may at any time—
  • (a) be revoked by OFCOM; or
  • (b) be varied by OFCOM so as to make it less onerous.
  • (9) A provider of a public electronic communications network or a public electronic communications service who is given a direction under subsection (2)(a) must comply with it.
  • (10) That duty is 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; or
  • (c) for any other appropriate remedy or relief.

Civil liability for breach of security duties

105W
  • (1) A duty imposed by or under any of sections 105A to 105D and 105J on a provider of a public electronic communications network or a public electronic communications service is a duty owed to every person who may be affected by a contravention of the duty.
  • (2) Subsections (3) and (4) apply where a duty is owed by virtue of subsection (1) to a person.
  • (3) A breach of the duty that causes that person to sustain loss or damage is actionable at the suit or instance of that person.
  • (4) An act which—
  • (a) by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and
  • (b) is done wholly or partly for achieving that result,

is actionable at the suit or instance of that person.

  • (5) In proceedings brought against a provider of a public electronic communications network or a public electronic communications service by virtue of subsection (3), it is a defence for the provider to show that they took all reasonable steps and exercised all due diligence to avoid contravening the duty in question.
  • (6) The consent of OFCOM is required for the bringing of proceedings by virtue of this section.
  • (7) If OFCOM give their consent subject to conditions relating to the conduct of the proceedings, the proceedings are not to be carried on except in compliance with those conditions.

Relationship between security duties and certain other duties etc

105X
  • (1) A security duty imposed on a provider of a public electronic communications network or a public electronic communications service does not apply in so far as compliance with the duty would—
  • (a) result in a failure by the provider to comply with a duty or prohibition imposed by or under an enactment mentioned in section 105A(4);
  • (b) prevent the provider from giving effect to a warrant or authorisation that has been issued or given under an enactment mentioned in section 105A(4);
  • (c) prevent the provider from providing a person with assistance in giving effect to a warrant or authorisation that has been issued or given under an enactment mentioned in section 105A(4); or
  • (d) prevent the provider from providing a person with assistance in exercising any power conferred by or under prison rules.
  • (2) In this section—
  • “prison rules” has the same meaning as in section 105A;
  • “security duty” means a duty imposed by or under—section 96C as applied by section 105S; orany of sections 105A to 105D, 105I to 105K, 105L(6), (7)(c) and (8), 105N(2)(a), 105O and 105V.

Statement of policy on ensuring compliance with security duties

105Y
  • (1) OFCOM must prepare and publish a statement of their general policy with respect to the exercise of their functions under sections 105I and 105M to 105V.
  • (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 the persons who, in their opinion, are likely to be affected by it.

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