Legalize / United Kingdom / Public General Act

Broadcasting Act 1990

Type Public General Act

Publication 1990-11-01

Last updated 2026-01-01

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

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Authority to assist Secretary of State in connection with licensing functions under 1949 Act

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Representation by Authority of Government and other interests in connection with broadcasting matters

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Interpretation of Part III

126

(1) In this Part (unless the context otherwise requires)—

“additional service” and “additional services licence” shall be construed in accordance with section 114(1) and section 115(9) respectively;

“the appropriate percentage”, in relation to any year, has the meaning given by section 102(10);

“cash bid” has the meaning given by section 98(8);

“independent radio service” means a service falling to be regulated under section 245 of the Communications Act 2003;

“licence” means a licence under this Part, and “licensed” shall be construed accordingly;

“local licence” and “national licence” mean a licence to provide a local service and a licence to provide a national service, respectively;

“local service”, “national service” and “restricted service” each has the same meaning as in section 245 of the Communications Act 2003;

“pre-transfer local licence” and “pre-transfer national licence” each has the same meaning as in section 253 of that Act;

“radio licensable content service” has the same meaning as in Part 3 of that Act;

“radio transfer date” has the same meaning as in that Act;

“simulcast radio service” means a simulcast radio service within the meaning given by section 41(2) of the Broadcasting Act 1996 for the purposes of Part 2 of that Act;

“sound broadcasting service” means a broadcasting service whose broadcasts consist of transmissions in sound only but does not include a radio multiplex service (within the meaning of Part 3 of the Communications Act 2003) ;

“spare capacity” shall be construed in accordance with section 114(2).

(1A) For the purposes of this Part a simulcast radio service corresponds to a national service if, in accordance with section 41(3) of the Broadcasting Act 1996, it falls to be treated as so corresponding for the purposes of Part 2 of that Act.

(2) Any reference in this Part to an area in the United Kingdom does not include an area which comprises or includes the whole of England; and nothing in this Part shall be read as precluding a local service from being provided for an area or locality that is to any extent comprised in the area or locality for which another local service is to be provided.

(3) Where the person who is for the time being the holder of any licence (“the present licence holder”) is not the person to whom the licence was originally granted, any reference in this Part (however expressed) to the holder of the licence shall be construed, in relation to any time falling before the date when the present licence holder became the holder of it, as including a reference to a person who was previously the holder of the licence.

Part IV — Transfer of Undertakings of IBA and Cable Authority

Transfer of undertakings

Division of assets of IBA and their dissolution

127

(1) On such day as the Secretary of State may by order appoint as the transfer date there shall come into force a scheme made under Schedule 9 to this Act and providing for the division of the property, rights and liabilities of the IBA between—

(a) the Commission,

(b) the Radio Authority, and

(2) The Secretary of State may, by order made before the transfer date, nominate for the purposes of subsection (1) any company formed and registered under the Companies Act 1985; but on that date the company must be a company limited by shares which is wholly owned by the Crown.

(3) Subject to subsection (4), the IBA shall continue in existence after the transfer date until such time as they are dissolved by order made by the Secretary of State.

(4) On the transfer date the chairman and members of the IBA shall cease to hold office; and as from that date the IBA—

(a) shall consist only of a chairman appointed by the Secretary of State and, if the Secretary of State thinks fit, such one or more other persons as the Secretary of State may appoint as members of the IBA; and

(b) shall have only the functions which fall to be carried out by the IBA under or by virtue of Schedule 9.

(5) If requested to do so by the chairman appointed under subsection (4)(a), the Commission shall furnish the IBA with any assistance required by them for the purpose of carrying out any of those functions.

(6) The Secretary of State shall not make an order under subsection (3) unless he is satisfied, after consultation with the IBA and with each of the bodies referred to in subsection (1)(a) to (c), that nothing further remains to be done by the IBA under or by virtue of Schedule 9.

Vesting in Commission of assets of Cable Authority and dissolution of Authority

128

(1) On the transfer date all the property, rights and liabilities to which the Cable Authority were entitled or subject immediately before that date shall become property, rights and liabilities of the Commission; and Schedule 10 to this Act shall have effect for the purpose of supplementing this and the following provisions of this section.

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(6) References in this Part to property, rights and liabilities of the Cable Authority include references to property, rights and liabilities which are not capable of being transferred or assigned by the Authority.

Transitional arrangements

Transitional arrangements relating to IBA’s broadcasting services

129

(1) Schedule 11 to this Act shall have effect—

(a) with respect to the provision by the Commission and the Welsh Authority, during the period beginning with the transfer date and ending with 31st December 1992, of television broadcasting services which have been provided by the IBA under the Broadcasting Act 1981 down to the transfer date;

(b) for the purpose of the regulation by the Commission after the end of that period of services provided in succession to the DBS services provided by them during that period; and

(i) with respect to the provision of such services on and after that date by the Radio Authority, and

(ii) for the purpose of the regulation by that Authority on and after that date of services provided in succession to such services.

(2) The programmes provided by a programme contractor under his contract for inclusion in any broadcasting service provided by the Commission or the Radio Authority in accordance with Part II or IV of Schedule 11 shall not be transmitted by, or under arrangements made by, the Commission or the Radio Authority (as the case may be) but shall be transmitted—

(a) by the nominated company in pursuance of a contract made between that company and the programme contractor in accordance with section 130, or

(b) under arrangements made in accordance with subsection (3)(a) of that section in a case where any such contract made between a DBS programme contractor and that company is terminated by the contractor as mentioned in that provision.

(3) The programmes broadcast on Channel 4 and S4C respectively during the interim period in accordance with Part II of Schedule 11 shall not be transmitted by, or under arrangements made by, the Commission but shall be transmitted by the nominated company—

(a) in the case of the programmes broadcast on Channel 4, in pursuance of such a contract made between that company and the Channel 4 company as is mentioned in subsection (4), and

(b) in the case of the programmes broadcast on S4C, in pursuance of such a contract made between the nominated company and the Welsh Authority as is mentioned in subsection (6).

(4) The contract referred to in subsection (3)(a) is a contract which makes provision for and in connection with the transmission by the nominated company during the interim period of the programmes to be broadcast on Channel 4 during that period, and in particular makes provision—

(a) for specified standards relating to technical quality, coverage and reliability to be attained in connection with the transmission of those programmes by that company; and

(b) for the transmission of those programmes to be suspended, if the Commission so direct in circumstances falling within subsection (5), for such period, or in the case of such programme or programmes, as they may specify.

(5) The circumstances referred to in subsection (4)(b) are circumstances where the Commission consider it necessary to require the transmission of the programmes in question to be suspended in order for them to comply, or secure compliance, with the provisions of the Broadcasting Act 1981 (as it has effect in accordance with Part II of Schedule 11 to this Act) or with any restriction or requirement imposed thereunder.

(6) The contract referred to in subsection (3)(b) is a contract which makes provision for and in connection with the transmission by the nominated company during the interim period of the programmes to be broadcast on S4C during that period, and in particular makes provision for specified standards relating to technical quality, coverage and reliability to be attained in connection with the transmission of those programmes by that company.

(7) In the following provisions, namely—

(a) Parts II and IV of Schedule 11 to this Act, and

(b) any provision of the Broadcasting Act 1981 which is to be construed as referring to the Commission or to the Radio Authority by virtue of either of those Parts of that Schedule,

any reference (however expressed) to the broadcasting of programmes, or to programmes broadcast, by the Commission or the Radio Authority shall, in consequence of subsections (2) and (3) above, be read as a reference to the broadcasting of programmes, or to programmes broadcast, by that body whether the transmission of the programmes is undertaken (according to the circumstances of the case)—

(i) by, or under arrangements made by, that body, or

(ii) by the nominated company in pursuance of any such contract as is referred to in either of those subsections, or

(iii) under any such arrangements as are referred to in subsection (2)(b);

and those Parts of that Schedule contain other modifications of provisions of that Act which are consequential on those subsections.

(8) This section and section 130 shall have effect in relation to any teletext service provided by the Commission in accordance with Part II of Schedule 11 as if—

(a) any reference to a programme or television programme were a reference to a teletext transmission; and

(b) any reference to a programme contractor were a reference to a teletext contractor.

(9) This section and section 130 shall, in so far as they apply to the transmission of the programmes provided by a DBS programme contractor under his contract for inclusion in any DBS service provided by the Commission in accordance with Part II of Schedule 11, be construed as applying only to the carrying on of such activities in connection with the transmission of those programmes as were being so carried on by the IBA immediately before the transfer date.

(10) In this section—

“the Channel 4 company” means the body corporate referred to in section 12(2) of the Broadcasting Act 1981, and “on Channel 4” means in the additional broadcasting service referred to in section 10(1) of that Act, but excluding so much of that service as consisted, immediately before the transfer date, in the broadcasting of programmes for reception wholly or mainly in Wales;

“the interim period” means the period specified in subsection (1)(a) above;

“on S4C” has the same meaning as in Part I of this Act.

(11) The reference in subsection (4) or (6) to specified standards is a reference to such standards as the IBA shall specify for the purposes of that subsection before the transfer date.

Variation of programme contracts to take account of new transmission arrangements

130

(1) Subject to subsections (2) and (4), it shall be the duty of the IBA to make before the transfer date such variations of each contract between them and a programme contractor (“the programme contract”) as appear to them to be appropriate—

(a) for requiring the programme contractor to enter into a contract with the nominated company which makes provision for and in connection with the transmission by that company during the interim period of the programmes which the programme contractor has the right and the duty to provide under the programme contract, and in particular makes provision—

(i) for specified standards relating to technical quality, coverage and reliability to be attained in connection with the transmission of those programmes by that company,

(ii) for the transmission of those programmes to be suspended, if the relevant authority so direct in circumstances falling within subsection (5), for such period, or in the case of such programme or programmes, as they may specify, and

(iii) where the programme contractor is a TV programme contractor, for the consideration payable in respect of the transmission of those programmes to be payable in accordance with subsection (6); and

(b) for securing that the right and the duty of the programme contractor under the programme contract to provide those programmes is accordingly (so long as any such contract with the nominated company remains in force) a right and a duty to provide them for transmission by that company.

(2) Subsection (1) shall apply to a contract for the provision of television programmes for broadcasting in a DBS service (“a DBS programme contract”) as if—

(a) the reference to coverage in paragraph (a)(i) were omitted; and

(b) for paragraph (a)(iii) there were substituted—

(iii) for the programme contractor to be entitled to terminate the contract if he is notified by the Commission that they are satisfied that the standards referred to in sub-paragraph (i) are not being attained as mentioned in that sub-paragraph;

(3) The IBA shall, in the case of any DBS programme contract, make before the transfer date such variations of the contract as appear to them to be appropriate—

(a) for requiring the DBS programme contractor, if he terminates his contract with the nominated company under any provision included in the contract in consequence of subsection (2)(b), to make such arrangements as the Commission may approve for and in connection with the transmission during the interim period of the programmes which he has the right and the duty to provide under the DBS programme contract, being arrangements under which—

(i) specified standards relating to technical quality and reliability are to be attained in connection with the transmission of those programmes under the arrangements, and

(ii) the transmission of those programmes is to be suspended, if the Commission so direct in circumstances falling within subsection (5), for such period, or in the case of such programme or programmes, as they may specify; and

(b) for securing that the right and the duty of the programme contractor under the DBS programme contract to provide those programmes is accordingly (so long as any such arrangements remain in force) a right and a duty to provide them for transmission under the arrangements.

(4) Subsection (1) shall apply to a contract for the provision of local sound broadcasts as if the reference to the interim period were a reference to the remainder of the period for which the contract continues in force by virtue of paragraph 2(1) in Part IV of Schedule 11; and that subsection accordingly does not apply to any such contract if—

(a) the programme contractor notifies the IBA, before such date as they shall determine, that he proposes to request the Radio Authority to determine the contract as from the transfer date in accordance with paragraph 1(1) in Part V of that Schedule; or

(b) the contract is one to which paragraph 2(1) in that Part of that Schedule would apply on the transfer date.

(5) The circumstances referred to in paragraph (a)(ii) of subsection (1) or (3) are circumstances where the relevant authority or (as the case may be) the Commission consider it necessary to require the transmission of the programmes in question to be suspended—

(a) in order for them to comply, or secure compliance, with the provisions of the Broadcasting Act 1981 (as it has effect in accordance with Schedule 11 to this Act) or with any restriction or requirement imposed thereunder, or

(b) in view of any matter which they consider constitutes or would constitute a breach of the programme contractor’s contract.

(6) The IBA shall make before the transfer date such variations of each contract between them and a TV programme contractor as appear to them to be appropriate for requiring the programme contractor to enter into an agreement with all of the other TV programme contractors which—

(a) relates to the payment by those contractors to the nominated company of the consideration payable by them in respect of the transmission by that company of the programmes provided by them; and

(b) provides for the amounts payable by each of the contractors to be such proportion of the total consideration so payable as corresponds to the proportion of the relevant amount which he was liable to pay by virtue of section 32(1)(a) of the Broadcasting Act 1981 (rental payments) in respect of the period beginning with 1st April 1990 and ending with the transfer date;

and in paragraph (b) “the relevant amount” means the aggregate amount of all payments falling to be made by TV programme contractors by virtue of section 32(1)(a) of that Act in respect of that period (excluding any payments falling to be so made in consequence of section 13(2) of that Act (advertisements on Channel 4)).

(7) The IBA shall, in the case of each such contract as is mentioned in subsection (6), also make before the transfer date such variations of the contract as appear to them to be appropriate in consequence of section 129(3).

(8) In this section—

“the interim period” means the period specified in section 129(1)(a);

“the relevant authority”—

(a) in relation to any such contract as is mentioned in subsection (1)(a) which relates to the transmission of television programmes, means the Commission, and

(b) in relation to any such contract which relates to the transmission of local sound broadcasts, means the Radio Authority;

and section 129(8) and (9) apply for the purposes of this section.

(9) Any reference in subsection (1) or (3) to specified standards is a reference to such standards as the IBA shall specify for the purposes of that subsection before the transfer date; and different standards may be so specified for the purposes of subsection (1) in relation to programme contractors of different descriptions.

Supplementary provisions relating to variation of programme contracts

131

(1) Where the IBA make any variation of a programme contract in pursuance of section 130(1) to (4) or (6), they may make such variations of that contract of a supplemental, incidental, consequential or transitional nature as they consider appropriate.

(2) The relevant authority may on or after the transfer date make any variation of a programme contract which could have been made before that date by the IBA—

(a) in pursuance of section 130(1) to (4), or

(b) in pursuance of subsection (1) above in connection with any variation made in pursuance of section 130(1) to (4);

and any such variation may be made with retrospective effect as from that date.

(3) Before making any variation of a programme contract in pursuance of any provision of section 130, this section or Schedule 11, the IBA or (as the case may be) the relevant authority shall consult the programme contractor concerned.

(4) Any such variation shall be made by means of a notice served on that programme contractor.

(5) In this section—

“programme contract” means a contract between the IBA and a programme contractor;

“programme contractor” includes a teletext contractor;

“the relevant authority”—

(a) in relation to a programme contract for the provision of television programmes or teletext transmissions, means the Commission; and

(b) in relation to a programme contract for the provision of local sound broadcasts, means the Radio Authority.

Disposal by IBA of DBS transmitting equipment etc

132

(1) The IBA shall have power, with the approval of the Secretary of State—

(a) to dispose of any relevant assets to a DBS contractor; and

(b) to do so on such terms and for such consideration as they may determine (whether or not any such consideration represents the market value of the assets).

(2) Any disposal under subsection (1) shall take effect on the transfer date.

(3) In this section “relevant asset” means any equipment or other asset (of whatever description) which has been used or held by the IBA in connection with the transmission of DBS services.

Functions exercisable by IBA before transfer date in connection with local sound broadcasting

133

(1) It shall be the duty of the IBA to prepare before the transfer date, in the case of each relevant programme contractor, a contract which—

(a) is expressed to be made between the nominated company and the contractor; and

(b) is to come into force in accordance with subsection (3) at such time (if any) as the contractor becomes the holder of a local licence by virtue of paragraph 1(1) in Part V of Schedule 11 to this Act; and

(c) makes provision in connection with the transmission, as from any such time, of the programmes included in the local service provided by the contractor (as the holder of such a licence), which may include provision for the transmission of those programmes by the nominated company.

(2) For the purposes of subsection (1) the IBA shall, after consultation with all the relevant programme contractors, draw up a number of different standard forms of contract, and each contract prepared by them under that subsection shall be in such one of those forms as they may determine after consultation with the relevant programme contractor concerned.

(3) Any contract prepared under subsection (1) shall by virtue of this subsection come into force, as a contract between the nominated company and the relevant programme contractor concerned, at any such time as is mentioned in paragraph (b) of that subsection and (subject to the provisions of the contract) shall continue in force for such period as is specified in it, being a period expiring not later than 31st December 1994.

(4) If—

(a) any contract prepared under subsection (1) has not yet come into force, and

(b) the nominated company and the relevant programme contractor concerned agree that it would be more appropriate for them to be parties to a contract which is in one of the other forms of contract drawn up as mentioned in subsection (2), and

subsection (3) shall have effect in relation to that contract as if it had been prepared by the IBA under subsection (1) (and accordingly shall not have effect in relation to the contract referred to in paragraph (a) above).

(5) The IBA shall be deemed to have had power to impose such requirements as have been imposed by them on the various local sound programme contractors with respect to the making of payments to the IBA for the purpose of enabling reductions to be made in relevant charges; and in this subsection “relevant charges” means charges made by the nominated company in connection with the transmission, during the period beginning with the transfer date and ending with 31st December 1994, of programmes which are included in local services falling within any description of such services determined by the IBA.

(6) The IBA shall have power, with the approval of the Secretary of State—

(a) to dispose of, or of an interest in, any relevant assets to a relevant programme contractor; and

(b) to do so on such terms and for such consideration as they may determine (whether or not any such consideration represents the market value of the assets).

(7) In this section—

“local licence” and “local service” have the same meaning as in Part III of this Act;

“local sound programme contractor” means a person who is a programme contractor by virtue of a contract for the provision of local sound broadcasts;

“relevant asset” means any equipment or other asset (of whatever description) which has been used or held by the IBA in connection with the transmission of local sound broadcasts;

“relevant programme contractor” means the programme contractor under a contract which, if effective immediately before the transfer date, would be a contract to which paragraph 2(1) in Part IV of Schedule 11 applied.

Transitional arrangements relating to existing cable services

134

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Provisions relating to nominated company

Initial Government holding in nominated company

135

(1) As a consequence of the vesting in the nominated company, in accordance with the scheme made under Schedule 9 to this Act, of property, rights and liabilities of the IBA, that company shall issue to the Secretary of State such securities of the company as he may from time to time direct.

(2) The Secretary of State shall not give a direction under subsection (1) at a time when the nominated company has ceased to be wholly owned by the Crown.

(3) Securities required to be issued in pursuance of this section shall be issued at such time or times, and (subject to subsection (4)) on such terms, as the Secretary of State may direct.

(4) Any shares issued in pursuance of this section—

(a) shall be of such nominal value as the Secretary of State may direct; and

(b) shall be issued as fully paid and treated for the purposes of the Companies Act 2006 as if they had been paid up by virtue of the payment to the nominated company of their nominal value in cash.

(5) The Secretary of State shall not exercise any power conferred on him by this section, or dispose of any securities issued to him in pursuance of this section, without the consent of the Treasury.

(6) Without prejudice to the generality of section 198(2), any dividends or other sums received by the Secretary of State in right of or on the disposal of any securities acquired by virtue of this section shall be paid into the Consolidated Fund.

Exercise of functions through nominees

136

(1) The Secretary of State may, with the consent of the Treasury, appoint any person to act as his nominee, or one of his nominees, for the purposes of section 135; but any issue of securities to any such nominee in pursuance of that section shall be effected in accordance with such directions as may be given from time to time by the Secretary of State with the consent of the Treasury.

(2) Any person holding any securities as a nominee of the Secretary of State by virtue of subsection (1) shall hold and deal with them (or any of them) on such terms and in such manner as the Secretary of State may direct with the consent of the Treasury.

Target investment limit for Government shareholding in nominated company

137

(1) As soon as he considers it expedient, and in any case not later than six months after the nominated company ceases to be wholly owned by the Crown, the Secretary of State shall by order fix a target investment limit in relation to the aggregate of the shares for the time being held in the company, under or by virtue of any enactment, by any Minister of the Crown or any nominee of his (“the Government shareholding”).

(2) The target investment limit for the Government shareholding in the company shall be expressed as a proportion of the voting rights which are exercisable in all circumstances at general meetings of the company (“the ordinary voting rights”).

(3) The first target investment limit fixed under this section for the Government shareholding in the company shall be equal to the proportion of the ordinary voting rights which is in fact carried by the Government shareholding in the company at the time when the order fixing the limit is made.

(4) The Secretary of State may from time to time by order fix a new target investment limit for the Government shareholding in the company in place of the one previously in force under this section; but—

(a) any new limit must be lower than the one it replaces; and

(b) an order under this section may only be revoked by an order fixing a new limit.

(5) It shall be the duty of a Minister of the Crown so to exercise—

(a) any power to dispose of any shares held in the company under or by virtue of any enactment, and

(b) his power to give directions to any nominee of his,

as to secure that the Government shareholding in the company does not carry a proportion of the ordinary voting rights exceeding any target investment limit for the time being in force under this section.

(6) Notwithstanding subsection (5), a Minister of the Crown may take up, or direct any nominee of his to take up, any rights for the time being available to him, or to the nominee, as an existing holder of shares or other securities of the company; but if, as a result, the proportion of the ordinary voting rights carried by the Government shareholding in the company at any time exceeds the target investment limit for the time being in force under this section, it shall be the duty of that Minister to comply with subsection (5) as soon after that time as is reasonably practicable.

(7) References in this section to a Minister of the Crown include references to the Treasury; and for the purposes of this section the temporary suspension of any of the ordinary voting rights shall be disregarded.

(8) Any order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Reserves of nominated company

138

(1) If the Secretary of State so directs at any time before the nominated company ceases to be wholly owned by the Crown, such sums as may be specified in the direction shall, instead of being applied in any other way, be carried by the company to a reserve (“the statutory reserve”).

(2) The statutory reserve may only be applied by the nominated company in paying up unissued shares of the company to be allotted to members of the company as fully paid bonus shares.

(3) Notwithstanding subsection (2), the statutory reserve shall not count as an undistributable reserve of the nominated company for the purposes of section 831(4)(d) of the Companies Act 2006 (restriction on distribution of assets); but, for the purpose of determining under that section whether the nominated company may make a distribution at any time, any amount for the time being standing to the credit of the statutory reserve shall be treated for the purposes of section 831(4)(c) as if it were unrealised profits of the company.

Loans by Secretary of State to nominated company

139

(1) As from the transfer date the Secretary of State may, with the consent of the Treasury, make loans to the nominated company out of money provided by Parliament; but no loan shall be made by him under this section at a time when the company has ceased to be wholly owned by the Crown.

(2) The aggregate amount outstanding in respect of the principal of loans made by the Secretary of State under this section shall not exceed the limit specified in subsection (3).

(3) That limit is £20 million or such greater sum, not exceeding £100 million, as the Secretary of State may from time to time specify by order made with the consent of the Treasury.

(4) Any loan made by the Secretary of State under this section shall be repaid to him at such times and by such methods, and interest on the loan shall be paid to him at such times and at such rates, as he may from time to time direct with the consent of the Treasury.

(5) An order shall not be made by the Secretary of State under this section unless a draft of it has been laid before and approved by a resolution of the House of Commons.

Temporary restriction on borrowings of nominated company

140

(1) The aggregate amount outstanding in respect of the principal of any relevant borrowing of the nominated company shall not, at any time when the company is wholly owned by the Crown, exceed such sum as the Secretary of State may determine with the consent of the Treasury.

(2) In subsection (1) “relevant borrowing”, in relation to the nominated company, means—

(a) loans made to that company or to any subsidiary of that company, other than—

(i) loans so made by any such subsidiary or (as the case may be) by that company, and

(ii) loans made to that company by the Secretary of State under section 139; and

(b) loans which are to be treated as having been made to that company, including loans which are to be treated as having been so made by virtue of the issue of debentures in pursuance of section 135.

General

Interpretation of Part IV

141

(1) In this Part—

“the Commission” means the Independent Television Commission;

“debentures” includes debenture stock;

“the IBA” means the Independent Broadcasting Authority;

“the nominated company” means the company nominated for the purposes of section 127(1);

“securities”, in relation to a company, includes shares, debentures, bonds and other securities of the company, whether or not constituting a charge on the assets of the company;

“shares” includes stock;

“subsidiary” has the meaning given by section 1159 of the Companies Act 2006;

“the transfer date” means the day appointed under section 127(1).

(2) Other expressions used in this Part which are also used in the Broadcasting Act 1981 have the same meaning as in that Act.

(3) The nominated company shall be regarded for the purposes of this Part as wholly owned by the Crown at any time when each of the issued shares in the company is held by, or by a nominee of, the Secretary of State.

Part V — The Broadcasting Complaints Commission

The Broadcasting Complaints Commission

142

(1) The commission which at the commencement of this section is known as the Broadcasting Complaints Commission (in this Part referred to as “the BCC”) shall continue in existence as a body corporate but shall be constituted in accordance with, and have the functions conferred by, this Part.

(2) The BCC shall consist of not less than three members appointed by the Secretary of State.

(3) The Secretary of State shall appoint one member of the BCC to be chairman, and may appoint another to be deputy chairman.

(4) Schedule 13 to this Act shall have effect with respect to the BCC.

Function of BCC

143

(1) Subject to the provisions of this Part, the function of the BCC shall be to consider and adjudicate upon complaints of—

(a) unjust or unfair treatment in programmes to which this Part applies, or

(b) unwarranted infringement of privacy in, or in connection with the obtaining of material included in, such programmes.

(2) This Part applies to—

(a) any television or sound programme broadcast by the BBC on or after such date as is specified in an order made by the Secretary of State for the purposes of this subsection;

(b) any television programme broadcast by the Welsh Authority on or after that date; and

Making and entertaining of complaints

144

(1) Complaints must be made in writing.

(2) A complaint may be made by an individual or by a body of persons, whether incorporated or not, but, subject to subsection (3), shall not be entertained by the BCC unless made by the person affected or by a person authorised by him to make the complaint for him.

(3) Where the person affected is an individual who has died or is for any other reason both unable to make a complaint himself and unable to authorise another person to do so for him, a complaint may be made by the personal representative of the person affected, or by a member of his family, or by some other person or body closely connected with him (whether as his employer, or as a body of which he is or was at his death a member, or in any other way).

(4) The BCC shall not entertain, or proceed with the consideration of, a complaint if it appears to them—

(a) that the complaint relates to the broadcasting of the relevant programme, or to its inclusion in a licensed service, on an occasion more than five years after the death of the person affected, or

(b) that the unjust or unfair treatment or unwarranted infringement of privacy complained of is the subject of proceedings in a court of law in the United Kingdom, or

(c) that the unjust or unfair treatment or unwarranted infringement of privacy complained of is a matter in respect of which the person affected has a remedy by way of proceedings in a court of law in the United Kingdom, and that in the particular circumstances it is not appropriate for the BCC to consider a complaint about it, or

(d) that the complaint is frivolous,

or if it appears to them for any other reason inappropriate for them to entertain, or proceed with the consideration of, the complaint.

(5) The BCC may refuse to entertain a complaint if it appears to them not to have been made within a reasonable time after the last occasion on which the relevant programme was broadcast or, as the case may be, included in a licensed service.

(6) Where, in the case of a complaint, the relevant programme was broadcast or included in a licensed service within five years after the death of the person affected, subsection (5) shall apply as if at the end there were added “within five years after the death of the person affected”.

(7) The BCC may refuse to entertain—

(a) a complaint of unjust or unfair treatment if the person named as the person affected was not himself the subject of the treatment complained of and it appears to the BCC that he did not have a sufficiently direct interest in the subject-matter of that treatment to justify the making of a complaint with him as the person affected; or

(b) a complaint made under subsection (3) by a person other than the person affected or a person authorised by him, if it appears to the BCC that the complainant’s connection with the person affected is not sufficiently close to justify the making of the complaint by him.

Consideration of complaints

145

(1) Subject to the provisions of section 144, every complaint made to the BCC shall be considered by them either at a hearing or, if they think fit, without a hearing.

(2) Hearings under this section shall be held in private; and where such a hearing is held in respect of a complaint, each of the following persons shall be given an opportunity to attend and be heard, namely—

(a) the complainant;

(b) the relevant person;

(d) any person not falling within any of paragraphs (a) to (c) who appears to the BCC to have been responsible for the making or provision of that programme; and

(e) any other person who the BCC consider might be able to assist at the hearing.

(3) Before they proceed to consider a complaint the BCC shall send a copy of it—

(a) to the relevant person, and

(b) where the relevant programme was included in a licensed service, to the appropriate regulatory body.

(4) Where the relevant person receives from the BCC a copy of the complaint, it shall be the duty of that person, if so required by the BCC—

(a) to provide the BCC with a visual or sound recording of the relevant programme or of any specified part of it, if and so far as the relevant person has such a recording in his possession;

(b) to make suitable arrangements for enabling the complainant to view or hear the relevant programme, or any specified part of it, if and so far as the relevant person has in his possession a visual or sound recording of it;

(c) to provide the BCC and the complainant with a transcript of so much of the relevant programme, or of any specified part of it, as consisted of speech, if and so far as the relevant person is able to do so;

(d) to provide the BCC and the complainant with copies of any documents in the possession of the relevant person being the originals or copies of any correspondence between that person and the person affected or the complainant in connection with the complaint;

(e) to furnish to the BCC and the complainant a written statement in answer to the complaint.

(5) For the purposes of this section, section 155 and section 167 it shall be the duty of each broadcasting body to retain a recording of every television or sound programme which is broadcast by that body—

(a) where it is of a television programme, during the period of 90 days beginning with the broadcast, and

(b) where it is of a sound programme, during the period of 42 days beginning with the broadcast.

(6) Where the relevant person receives from the BCC a copy of a complaint, it shall be the duty of that person, if so required by the BCC—

(a) where the relevant person is a broadcasting body, to arrange for one or more of the governors, members or employees of the body to attend the BCC and assist them in their consideration of the complaint, or

(b) where the relevant person is a body other than a broadcasting body, to arrange for one or more of the following, namely—

(i) the persons who take part in the management or control of the body, or

(ii) the employees of the body,

to attend the BCC and assist them in their consideration of the complaint, or

(c) where the relevant person is an individual, to attend, or to arrange for one or more of his employees to attend, the BCC and assist them in their consideration of the complaint.

(7) Where the relevant person receives from the BCC a copy of a complaint and, in connection with the complaint, the BCC make to any other person a request to which this subsection applies, it shall be the duty of the relevant person to take such steps as he reasonably can to ensure that the request is complied with.

(8) Subsection (7) applies to the following requests by the BCC to any such other person as is there mentioned, namely—

(a) a request to make suitable arrangements for enabling the complainant and any member or employee of the BCC to view or hear the relevant programme, or any specified part of it, if and so far as the person requested has in his possession a visual or sound recording of it;

(b) a request to provide the BCC and the complainant with a transcript of so much of the relevant programme, or of any specified part of it, as consisted of speech, if and so far as the person requested is able to do so;

(c) a request to provide the BCC and the complainant with copies of any documents in the possession of the person requested, being the originals or copies of any correspondence between that person and the person affected or the complainant in connection with the complaint;

(d) a request to furnish to the BCC and the complainant a written statement in answer to the complaint;

(e) a request to attend, or (where the person requested is not an individual) to arrange for a representative to attend, the BCC and assist them in their consideration of the complaint.

(9) The BCC may, if they think fit, make to any person who attends them in connection with a complaint such payments as they think fit by way of travelling allowance or subsistence allowance where expenditure on travelling or, as the case may be, on subsistence is necessarily incurred by him for the purpose of enabling him so to attend.

(10) In this section “the relevant person” means—

(a) in a case where the relevant programme was broadcast by a broadcasting body, that body; and

(b) in a case where the relevant programme was included in a licensed service, the licence holder providing the service.

Publication of BCC’s findings

146

(1) Where the BCC have considered and adjudicated upon a complaint, they may give the following directions, namely—

(a) where the relevant programme was broadcast by a broadcasting body, directions requiring that body to publish the matters mentioned in subsection (2) in such manner, and within such period, as may be specified in the directions; and

(b) where the relevant programme was included in a licensed service, directions requiring the appropriate regulatory body to direct the licence holder to publish those matters in such manner, and within such period, as may be so specified.

(2) Those matters are—

(a) a summary of the complaint; and

(b) the BCC’s findings on the complaint or a summary of them.

(3) The form and content of any such summary as is mentioned in subsection (2)(a) or (b) shall be such as may be approved by the BCC.

(4) A broadcasting or regulatory body shall comply with any directions given to them under this section.

(5) Any licence to provide a licensed service which is granted by a regulatory body under this Act shall include conditions requiring the licence holder to comply with such directions as may be given to him by that body for the purpose of enabling them to comply with any directions given to them under this section.

(6) The BCC shall publish, at such intervals and in such manner as they think fit, reports each containing, as regards every complaint within this subsection which has been dealt with by them in the period covered by the report, a summary of the complaint and the action taken by them on it and, where they have adjudicated upon it, a summary of their findings.

(7) A complaint made to the BCC is within subsection (6) unless it is one which they are precluded from entertaining by section 144(2).

(8) The BCC may, if they think fit, omit from any summary included in a report under subsection (6) any information which could lead to the disclosure of the identity of any person connected with the complaint in question other than—

(a) a broadcasting or regulatory body; or

(b) a person providing a licensed service.

Duty to publicise BCC

147

(1) It shall be the duty of each broadcasting or regulatory body to arrange for the publication (by means of broadcasts or otherwise) of regular announcements publicising the BCC.

(2) Any such announcements may contain a statement of the difference between the kinds of complaints that may be considered by the BCC and those that may be considered by the Broadcasting Standards Council established by this Act.

(3) Any licence to provide a licensed service which is granted by a regulatory body under this Act shall include conditions requiring the licence holder to comply with such directions as may be given to him by that body in connection with the performance by them of their duty under subsection (1).

Annual reports

148

(1) As soon as possible after the end of every financial year the BCC shall prepare a report of their proceedings during that year, and transmit it to the Secretary of State who shall lay copies of it before each House of Parliament.

(2) The report shall have attached to it the statement of accounts for the year and a copy of any report made by the auditors on that statement.

(3) The BCC shall send a copy of the report—

(a) to each broadcasting or regulatory body; and

(b) to every person providing a licensed service.

Contributions towards cost of BCC

149

(1) For the financial year which includes the commencement of this section and each subsequent financial year the Secretary of State shall notify—

(a) to each regulatory body the sum which he considers to be the appropriate contribution of that body, in respect of persons providing licensed services under licences granted by that body, towards the expenses of the BCC; and

(b) to the Welsh Authority the sum which he considers to be the appropriate contribution of that body towards such expenses.

(2) Each regulatory body and the Welsh Authority shall pay to the Secretary of State any sum notified to them under subsection (1).

Interpretation of Part V

150

In this Part—

“appropriate regulatory body”, in relation to a programme included in a licensed service, means the regulatory body by whom that service is licensed;

“the BCC” means the Broadcasting Complaints Commission;

“broadcasting body” means the BBC or the Welsh Authority;

“complaint” means a complaint to the BCC of any such unjust or unfair treatment or unwarranted infringement of privacy as is mentioned in section 143(1);

“licensed service” means—

(a) a television programme service (within the meaning of Part I of this Act), or

(b) an independent radio service falling within paragraph (a) or (b) of section 84(1),

which is licensed under Part I or (as the case may be) Part III of this Act, or any additional service (within the meaning of Part I or III of this Act) which is licensed under that Part of this Act and constitutes a teletext service;

“participant”, in relation to a programme, means a person who appeared, or whose voice was heard, in the programme;

“the person affected”—

(a) in relation to any such unjust or unfair treatment as is mentioned in section 143(1), means a participant in the programme in question who was the subject of that treatment or a person who, whether such a participant or not, had a direct interest in the subject-matter of that treatment; and

(b) in relation to any such unwarranted infringement of privacy as is so mentioned, means a person whose privacy was infringed;

“regulatory body” means the Independent Television Commission or the Radio Authority;

“the relevant programme”, in relation to a complaint, means the programme to which the complaint relates;

“television programme” includes a teletext transmission, and references to programmes shall be construed accordingly;

“unjust or unfair treatment” includes treatment which is unjust or unfair because of the way in which material included in a programme has been selected or arranged.

Part VI — The Broadcasting Standards Council

The Broadcasting Standards Council

151

(1) The council which at the commencement of this section is known as the Broadcasting Standards Council shall be, by that name, a body corporate and as such shall be constituted in accordance with, and have the functions conferred by, this Act.

(2) The Council shall consist of—

(a) a chairman and a deputy chairman appointed by the Secretary of State; and

(b) such number of other members appointed by the Secretary of State, not being less than four, as he may from time to time determine.

(3) Schedule 14 to this Act shall have effect with respect to the Council.

Preparation by Council of code relating to broadcasting standards

152

(1) It shall be the duty of the Council to draw up, and from time to time review, a code giving guidance as to—

(a) practices to be followed in connection with the portrayal of violence in programmes to which this Part applies,

(b) practices to be followed in connection with the portrayal of sexual conduct in such programmes, and

(2) This Part applies to—

(a) any television or sound programme broadcast by the BBC;

(b) any television programme broadcast by the Welsh Authority; and

(3) It shall be the duty of each broadcasting or regulatory body, when drawing up or revising any code relating to standards and practice for programmes, to reflect the general effect of so much of the code referred to in subsection (1) (as for the time being in force) as is relevant to the programmes in question.

(4) The Council shall from time to time publish the code referred to in subsection (1) (as for the time being in force).

(5) Before drawing up or revising the code the Council shall consult—

(a) each broadcasting or regulatory body; and

(b) such other persons as appear to the Council to be appropriate.

Monitoring by Council of broadcasting standards

153

(1) It shall be the duty of the Council to monitor programmes to which this Part applies with a view to enabling the Council—

(a) to make reports on the portrayal of violence and sexual conduct in, and the standards of taste and decency attained by, such programmes generally, and

(b) to determine whether to issue complaints in respect of such programmes under section 154(7).

(2) Subject to section 160(2), the Council may make reports on the matters specified in subsection (1)(a) on such occasions as they think fit; and any such report may include an assessment of either or both of the following, namely—

(a) the attitudes of the public at large towards the portrayal of violence or sexual conduct in, or towards the standards of taste and decency attained by, programmes to which this Part applies; and

(b) any effects or potential effects on the attitudes or behaviour of particular categories of persons of the portrayal of violence or sexual conduct in such programmes or of any failure on the part of such programmes to attain such standards.

(3) The Council may publish any report made by them in pursuance of subsection (1)(a).

(4) The Council shall have the further duty of monitoring, so far as is reasonably practicable, all television and sound programmes which are transmitted or sent from outside the United Kingdom but are capable of being received there, with a view to ascertaining—

(a) how violence and sexual conduct are portrayed in those programmes; and

(b) the extent to which those programmes meet standards of taste and decency.

(5) The Council may make a report to the Secretary of State on any issues identified by them in the course of carrying out their duty under subsection (4) and appearing to them to raise questions of general broadcasting policy.

Consideration by Council of complaints relating to broadcasting standards

154

(1) Subject to the provisions of this section, it shall be the duty of the Council to consider complaints which are made to them under this section and relate—

(a) to the portrayal of violence or sexual conduct in programmes to which this Part applies, or

(b) to alleged failures on the part of such programmes to attain standards of taste and decency,

and to make findings on such complaints, taking into account any relevant provisions of the code.

(2) Any such complaint must be in writing and give particulars of the matters complained of.

(3) The Council shall not entertain a complaint which is made—

(a) where the relevant programme is a television programme, more than two months after the relevant date, or

(b) where the relevant programme is a sound programme, more than three weeks after that date,

unless it appears to them that in the particular circumstances it is appropriate for them to do so.

(4) In subsection (3) “the relevant date” means—

(a) the date on which the relevant programme was broadcast by a broadcasting body or included in a licensed service, or

(b) where it has been so broadcast or included on more than one occasion, the date on which it was last so broadcast or included.

(5) The Council shall not entertain, or proceed with the consideration of, a complaint if it appears to them—

(a) that the matter complained of is the subject of proceedings in a court of law in the United Kingdom, or

(b) that the matter complained of is a matter in respect of which the complainant has a remedy by way of proceedings in a court of law in the United Kingdom, and that in the particular circumstances it is not appropriate for the Council to consider a complaint about it, or

(d) that for any other reason it is inappropriate for them to entertain, or proceed with the consideration of, the complaint.

(6) Where, apart from this subsection, there would fall to be considered by the Council two or more complaints which appear to them to raise the same, or substantially the same, issue or issues in relation to a particular programme, the Council may determine that those complaints shall be treated for the purposes of this Part as constituting a single complaint.

(7) If it appears to the Council to be appropriate to do so, they may of their own motion issue complaints relating to matters falling within subsection (1)(a) or (b).

(8) Any such complaint shall give particulars of the matters complained of.

Consideration of complaints

155

(1) Subject to the provisions of section 154, every complaint made to or issued by the Council under that section shall be considered by them either without a hearing or, if they think fit, at a hearing (and any such hearing shall be held in private unless the Council decide otherwise).

(2) Before the Council proceed to consider a complaint they shall send a copy of it—

(a) to the relevant person; and

(b) where the relevant programme was included in a licensed service, to the appropriate regulatory body.

(3) Where the relevant person receives from the Council a copy of the complaint, it shall be the duty of that person, if so required by the Council—

(a) to provide the Council with a visual or sound recording of the relevant programme or any specified part of it, if and so far as he has such a recording in his possession;

(b) to provide the Council with a transcript of so much of the relevant programme, or of any specified part of it, as consisted of speech, if and so far as he is able to do so;

(c) to provide the Council with copies of any documents in his possession, being the originals or copies of any correspondence between him and the complainant in connection with the complaint;

(d) to furnish to the Council a written statement in answer to the complaint.

(4) Where a hearing is held in respect of a complaint, the following persons shall be given an opportunity to attend and be heard, namely—

(a) the complainant;

(b) the relevant person;

(d) any person not within any of paragraphs (a) to (c) who appears to the Council to have been responsible for the making or provision of that programme; and

(e) any other person who the Council consider might be able to assist at the hearing.

(5) In a case where the Council have made a determination in respect of any complaints under subsection (6) of section 154, subsection (4)(a) above shall be construed as referring to such one or more of the persons who made those complaints as the Council may determine; and in relation to a complaint issued by the Council under subsection (7) of that section, subsection (4) above shall have effect as if paragraph (a) were omitted.

(6) The Council may, if they think fit, make to any person who attends a hearing in connection with a complaint such payments as they think fit by way of travelling allowance or subsistence allowance where expenditure on travelling or, as the case may be, on subsistence is necessarily incurred by him for the purpose of enabling him so to attend.

(7) In this section “the relevant person” means—

(a) in a case where the relevant programme was broadcast by a broadcasting body, that body; and

(b) in a case where the relevant programme was included in a licensed service, the licence holder providing that service.

Publication of Council’s findings

156

(1) Where the Council have considered and made their findings on any complaint, they may give the following directions, namely—

(a) where the relevant programme was broadcast by a broadcasting body, directions requiring that body to publish the matters mentioned in subsection (2) in such manner, and within such period, as may be specified in the directions; and

(b) where the relevant programme was included in a licensed service, directions requiring the appropriate regulatory body to direct the licence holder to publish those matters in such manner, and within such period, as may be so specified.

(2) Those matters are—

(a) a summary of the complaint; and

(b) the Council’s findings, and any observations by them, on the complaint, or a summary of those findings and any such observations.

(3) The form and content of any such summary as is mentioned in subsection (2)(a) or (b) shall be such as may be approved by the Council.

(4) A broadcasting or regulatory body shall comply with any directions given to them under this section.

(5) Any licence to provide a licensed service which is granted by a regulatory body under this Act shall include conditions requiring the licence holder to comply with such directions as may be given to him by that body for the purpose of enabling them to comply with any directions given to them under this section.

Power of Council to commission research

157

(1) The Council may make arrangements for the undertaking of research into matters related to or connected with—

(a) the portrayal of violence or sexual conduct in programmes to which this Part applies, or

(b) standards of taste and decency for such programmes generally.

(2) The matters into which research may be undertaken in pursuance of subsection (1) include, in particular, matters falling within section 153(2)(a) and (b).

(3) Arrangements made under subsection (1) shall secure that, so far as is reasonably practicable, any research undertaken in pursuance of the arrangements is undertaken by persons who are neither members nor employees of the Council.

(4) The Council may publish the results of any research undertaken in pursuance of subsection (1).

International representation by Council of Government interests

158

The functions of the Council shall include representing Her Majesty’s Government in the United Kingdom, at the request of the Secretary of State, on international bodies concerned with setting standards for television programmes.

Duty to publicise Council

159

(1) It shall be the duty of each broadcasting or regulatory body to arrange for the publication (by means of broadcasts or otherwise) of regular announcements publicising the Council.

(2) Any such announcements may contain a statement of the difference between the kinds of complaints that may be considered by the Council and those that may be considered by the Broadcasting Complaints Commission.

(3) Any licence to provide a licensed service which is granted by a regulatory body under this Act shall include conditions requiring the licence holder to comply with such directions as may be given to him by that body in connection with the performance by them of their duty under subsection (1).

Annual reports

160

(1) As soon as possible after the end of every financial year the Council shall prepare a report of their proceedings during that year, and transmit it to the Secretary of State who shall lay copies of it before each House of Parliament.

(2) The report shall include a report by the Council on the matters specified in section 153(1)(a).

(3) The Council shall send a copy of the report—

(a) to each broadcasting or regulatory body; and

(b) to every person providing a licensed service.

Interpretation of Part VI

161

(1) In this Part—

“the appropriate regulatory body”, in relation to a programme included in a licensed service, means the regulatory body by whom that service is licensed;

“broadcasting body” means the BBC or the Welsh Authority;

“the code” means the code referred to in section 152(1) (as for the time being in force);

“the Council” means the Broadcasting Standards Council;

“licensed service” means—

(a) a television programme service (within the meaning of Part I of this Act), or

(b) an independent radio service falling within paragraph (a) or (b) of section 84(1),

which is licensed under Part I or (as the case may be) Part III of this Act, or so much of any licensed delivery service (within the meaning of Part II of this Act) as is, by virtue of section 79(2) or (4), treated as the provision of a service licensed under Part I of this Act;

“regulatory body” means the Independent Television Commission or the Radio Authority;

“the relevant programme”, in relation to a complaint, means the programme to which the complaint relates;

“sexual conduct” means any form of sexual activity or other sexual behaviour.

(2) Any reference in this Part to programmes to which this Part applies shall be construed in accordance with section 152(2).

Part VII — Prohibition on Inclusion of Obscene and Other Material in Programme Services

Obscenity

Obscenity in programme services: England and Wales

162

(1) In section 1 of the Obscene Publications Act 1959 (test of obscenity)—

(a) the proviso to subsection (3) (exemption for television and sound broadcasting) shall cease to have effect; and

(b) the following subsections shall be added after that subsection—

(4) For the purposes of this Act a person also publishes an article to the extent that any matter recorded on it is included by him in a programme included in a programme service. (5) Where the inclusion of any matter in a programme so included would, if that matter were recorded matter, constitute the publication of an obscene article for the purposes of this Act by virtue of subsection (4) above, this Act shall have effect in relation to the inclusion of that matter in that programme as if it were recorded matter. (6) In this section “programme” and “programme service” have the same meaning as in the Broadcasting Act 1990.

(2) Schedule 15 to this Act shall have effect for the purpose of supplementing subsection (1) above.

Obscenity in programme services: Scotland

163

(1) Section 51 of the Civic Government (Scotland) Act 1982 (offences of displaying, publishing, etc. of obscene material) shall be amended in accordance with the following provisions of this section.

(2) After subsection (2) there shall be inserted the following subsection—

(2A) Subject to subsection (4) below, any person who— (a) is responsible for the inclusion of any obscene material in a programme included in a programme service; or (b) with a view to its eventual inclusion in a programme so included, makes, prints, has or keeps any obscene material, shall be guilty of an offence under this section.

(3) In subsection (6), paragraph (a) shall cease to have effect.

(4) In subsection (8)—

(a) in the definition of “material”, the words from “and” onwards shall be omitted;

(b) after the definition of “prescribed sum” there shall be inserted—

“programme” and “programme service” have the same meaning as in the Broadcasting Act 1990;

and

Racially inflammatory material etc.

Inclusion in programme services in Great Britain of racially inflammatory material

164

(1) Part III of the Public Order Act 1986 (racial hatred) shall be amended as follows.

(2) In each of the following provisions, namely—

(a) section 18(6) (exemption from prohibition applying to use of threatening words etc.),

(b) section 20(3)(c) (exemption from prohibition applying to public performances of plays), and

for “broadcast or included in a cable programme service” there shall be substituted “ included in a programme service ”.

(3) In section 22 (broadcasting or including programme in cable programme service)—

(a) in subsections (1), (3)(b), (4)(a) and (5)(a), for “broadcast or included in a cable programme service”, wherever occurring, there shall be substituted “ included in a programme service ”; and

(b) the following provisions shall be omitted, namely—

(i) in subsection (2), the words “broadcasting or cable”,

(ii) in subsections (4)(b) and (5)(b), the words “broadcast or”, wherever occurring,

(iii) subsection (7) (exemption for programmes broadcast by BBC or Independent Broadcasting Authority), and

(iv) subsection (8) (application of certain provisions of the Cable and Broadcasting Act 1984).

(4) In section 23 (possession of racially inflammatory material)—

(a) in subsection (1), for “broadcast or included in a cable programme service”, wherever occurring, there shall be substituted “ or included in a programme service ”;

(b) in subsection (2), for “broadcasting or inclusion in a cable programme service” there shall be substituted “ or inclusion in a programme service ”; and

(5) In section 29 (interpretation)—

(a) the definitions of “broadcast” and “cable programme service” shall be omitted;

(b) in the definition of “programme”, for “broadcast or included in a cable programme service” there shall be substituted “ included in a programme service ”; and

“programme service” has the same meaning as in the Broadcasting Act 1990;

Inclusion in programme services in Northern Ireland of material likely to stir up hatred etc

165

(1) Part III of the Public Order (Northern Ireland) Order 1987 (stirring up hatred or arousing fear) shall be amended as follows.

(2) In each of the following provisions, namely—

(a) Article 9(5) (exemption from prohibition applying to use of threatening words etc.), and

(b) Article 11(4) (exemption from prohibition applying to distribution etc. of recordings),

for “broadcast or included in a cable programme service” there shall be substituted “ included in a programme service ”.

(3) In Article 12 (broadcasting or including programme in cable programme service)—

(a) in paragraphs (1), (3)(b), (4)(a) and (5)(a), for “broadcast or included in a cable programme service”, wherever occurring, there shall be substituted “ included in a programme service ”; and

(b) the following provisions shall be omitted—

(i) in paragraph (2)(a), the words “broadcasting or cable”,

(ii) in paragraphs (4)(b) and (5)(b), the words “broadcast or”, wherever occurring,

(iii) paragraph (7) (exemption for programmes broadcast by BBC or Independent Broadcasting Authority), and

(iv) paragraph (8) (application of certain provisions of Cable and Broadcasting Act 1984).

(4) In Article 13 (possession of matter intended or likely to stir up hatred or arouse fear)—

(a) in paragraph (1), for “broadcast or included in a cable programme service”, wherever occurring, there shall be substituted “ or included in a programme service ”

(b) in paragraph (2), for “broadcasting or inclusion in a cable programme service” there shall be substituted “ or inclusion in a programme service ” and

(5) In Article 17 (interpretation)—

(a) the definitions of “broadcast” and “cable programme service” shall be omitted;

(b) in the definition of “programme”, for “broadcast or included in a cable programme service” there shall be substituted “ included in a programme service ”; and

Defamation

Defamatory material

166

(1) For the purposes of the law of libel and slander ... the publication of words in the course of any programme included in a programme service shall be treated as publication in permanent form.

(2) Subsection (1) above shall apply for the purposes of section 3 of each of the Defamation Acts (slander of title etc.) as it applies for the purposes of the law of libel and slander.

(3) .........................................................................

(4) In this section “the Defamation Acts” means the Defamation Act 1952 and the Defamation Act (Northern Ireland) 1955.

(5) Subsections (1) and (2) above do not extend to Scotland.

Supplementary

Power to make copies of recordings

167

(1) If a justice of the peace is satisfied by information on oath laid by a constable that there is reasonable ground for suspecting that a relevant offence has been committed by any person in respect of a programme included in a programme service, he may make an order authorising any constable to require that person—

(a) to produce to the constable a visual or sound recording of any matter included in that programme, if and so far as that person is able to do so; and

(b) on the production of such a recording, to afford the constable an opportunity of causing a copy of it to be made.

(2) An order made under this section shall describe the programme to which it relates in a manner sufficient to enable that programme to be identified.

(3) A person who without reasonable excuse fails to comply with any requirement of a constable made by virtue of subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding the third level on the standard scale.

(4) No order shall be made under this section in respect of any recording in respect of which a warrant could be granted under any of the following provisions, namely—

(a) section 3 of the Obscene Publications Act 1959;

(b) section 24 or 29H of the Public Order Act 1986; and

(5) In the application of subsection (1) to England and Wales “relevant offence” means an offence under—

(a) section 2 of the Obscene Publications Act 1959; or

(b) section 22 or 29F of the Public Order Act 1986.

(6) In the application of subsection (1) to Scotland—

(a) “relevant offence” means an offence under—

(i) section 51 of the Civic Government (Scotland) Act 1982, or

(ii) section 22 of the Public Order Act 1986;

(b) the reference to a justice of the peace shall include a reference to the sheriff; and

(7) In the application of subsection (1) to Northern Ireland—

(a) “relevant offence” means an offence under Article 12 of the Public Order (Northern Ireland) Order 1987;

(b) for the reference to a justice of the peace there shall be substituted a reference to a resident magistrate; and

(c) for the reference to information on oath laid by a constable there shall be substituted a reference to a complaint on oath made by a constable.

Part VIII — Provisions Relating to Wireless Telegraphy

Offence of keeping wireless telegraphy station or apparatus available for unauthorised use

168

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Offence of allowing premises to be used for purpose of unlawful broadcasting

169

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Prohibition of acts facilitating unauthorised broadcasting

170

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendments of the Marine, &c., Broadcasting (Offences) Act 1967

171

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendments of provisions of 1949 Act relating to penalties and forfeiture

172

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Extension of search and seizure powers in relation to unlawful broadcasting etc

173

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application of Part VIII to Isle of Man and Channel Islands

174

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Use as of right of sound recordings in broadcasts and cable programme services

175

(1) In Chapter VII of Part I of the Copyright, Designs and Patents Act 1988 (copyright licensing) there shall be inserted after section 135—

(135A) (1) Section 135C applies to the inclusion in a broadcast or cable programme service of any sound recordings if— (a) a licence to include those recordings in the broadcast or cable programme service could be granted by a licensing body or such a body could procure the grant of a licence to do so, (b) the condition in subsection (2) or (3) applies, and (c) the person including those recordings in the broadcast or cable programme service has complied with section 135B. (2) Where the person including the recordings in the broadcast or cable programme service does not hold a licence to do so, the condition is that the licensing body refuses to grant, or procure the grant of, such a licence, being a licence— (a) whose terms as to payment for including the recordings in the broadcast or cable programme service would be acceptable to him or comply with an order of the Copyright Tribunal under section 135D relating to such a licence or any scheme under which it would be granted, and (b) allowing unlimited needletime or such needletime as he has demanded. (3) Where he holds a licence to include the recordings in the broadcast or cable programme service, the condition is that the terms of the licence limit needletime and the licensing body refuses to substitute or procure the substitution of terms allowing unlimited needletime or such needletime as he has demanded, or refuses to do so on terms that fall within subsection (2)(a). (4) The references in subsection (2) to refusing to grant, or procure the grant of, a licence, and in subsection (3) to refusing to substitute or procure the substitution of terms, include failing to do so within a reasonable time of being asked. (5) In the group of sections from this section to section 135G— - “needletime” means the time in any period (whether determined as a number of hours in the period or a proportion of the period, or otherwise) in which any recordings may be included in a broadcast or cable programme service; - “sound recording” does not include a film sound track when accompanying a film. (6) In sections 135B to 135G, “terms of payment” means terms as to payment for including sound recordings in a broadcast or cable programme service. (135B) (1) A person intending to avail himself of the right conferred by section 135C must— (a) give notice to the licensing body of his intention to exercise the right, asking the body to propose terms of payment, and (b) after receiving the proposal or the expiry of a reasonable period, give reasonable notice to the licensing body of the date on which he proposes to begin exercising that right, and the terms of payment in accordance with which he intends to do so. (2) Where he has a licence to include the recordings in a broadcast or cable programme service, the date specified in a notice under subsection (1)(b) must not be sooner than the date of expiry of that licence except in a case falling within section 135A(3). (3) Before the person intending to avail himself of the right begins to exercise it, he must— (a) give reasonable notice to the Copyright Tribunal of his intention to exercise the right, and of the date on which he proposes to begin to do so, and (b) apply to the Tribunal under section 135D to settle the terms of payment. (135C) (1) A person who, on or after the date specified in a notice under section 135B(1)(b), includes in a broadcast or cable programme service any sound recordings in circumstances in which this section applies, and who— (a) complies with any reasonable condition, notice of which has been given to him by the licensing body, as to inclusion in the broadcast or cable programme service of those recordings, (b) provides that body with such information about their inclusion in the broadcast or cable programme service as it may reasonably require, and (c) makes the payments to the licensing body that are required by this section, shall be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question. (2) Payments are to be made at not less than quarterly intervals in arrears. (3) The amount of any payment is that determined in accordance with any order of the Copyright Tribunal under section 135D or, if no such order has been made— (a) in accordance with any proposal for terms of payment made by the licensing body pursuant to a request under section 135B, or (b) where no proposal has been so made or the amount determined in accordance with the proposal so made is unreasonably high, in accordance with the terms of payment notified to the licensing body under section 135B(1)(b). (4) Where this section applies to the inclusion in a broadcast or cable programme service of any sound recordings, it does so in place of any licence. (135D) (1) On an application to settle the terms of payment, the Copyright Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances. (2) An order under subsection (1) has effect from the date the applicant begins to exercise the right conferred by section 135C and any necessary repayments, or further payments, shall be made in respect of amounts that have fallen due. (135E) (1) A person exercising the right conferred by section 135C, or who has given notice to the Copyright Tribunal of his intention to do so, may refer to the Tribunal— (a) any question whether any condition as to the inclusion in a broadcast or cable programme service of sound recordings, notice of which has been given to him by the licensing body in question, is a reasonable condition, or (b) any question whether any information is information which the licensing body can reasonably require him to provide. (2) On a reference under this section, the Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances. (135F) (1) A person exercising the right conferred by section 135C or the licensing body may apply to the Copyright Tribunal to review any order under section 135D or 135E. (2) An application shall not be made, except with the special leave of the Tribunal— (a) within twelve months from the date of the order, or of the decision on a previous application under this section, or (b) if the order was made so as to be in force for fifteen months or less, or as a result of a decision on a previous application is due to expire within fifteen months of that decision, until the last three months before the expiry date. (3) On the application the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances. (4) An order under this section has effect from the date on which it is made or such later date as may be specified by the Tribunal. (135G) (1) In determining what is reasonable on an application or reference under section 135D or 135E, or on reviewing any order under section 135F, the Copyright Tribunal shall— (a) have regard to the terms of any orders which it has made in the case of persons in similar circumstances exercising the right conferred by section 135C, and (b) exercise its powers so as to secure that there is no unreasonable discrimination between persons exercising that right against the same licensing body. (2) In settling the terms of payment under section 135D, the Tribunal shall not be guided by any order it has made under any enactment other than that section. (3) Section 134 (factors to be taken into account: retransmissions) applies on an application or reference under sections 135D to 135F as it applies on an application or reference relating to a licence.

(2) In section 149 of that Act (jurisdiction of the Copyright Tribunal), after paragraph (c) there shall be inserted—

(3) In section 179 of that Act (index of defined expressions)—

(a) in the appropriate places in alphabetical order there shall be inserted—

needletime section 135A

, and

terms of payment section 135A

, and

(b) in the entry for sound recordings, for “section 5” there shall be substituted “ sections 5 and 135A ”.

Duty to provide advance information about programmes

176

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