Legalize / United Kingdom / Public General Act

Communications Act 2003

Type Public General Act

Publication 2003-07-17

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles 1

Reform history JSON API

(1) “Product placement”, in relation to a programme included in an on-demand programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark, where the inclusion—

(a) is for a commercial purpose,

(b) is in return for the making of any payment, or the giving of other valuable consideration, to any relevant provider or any connected person, and

(2) “Prop placement”, in relation to a programme included in an on-demand programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark where—

(a) the provision of the product, service or trade mark has no significant value; and

(b) no relevant provider, or person connected with a relevant provider, has received any payment or other valuable consideration in relation to its inclusion in, or the reference to it in, the programme, disregarding the costs saved by including the product, service or trademark, or a reference to it, in the programme.

(3) Product placement is prohibited in any of the following included in on-demand programme services—

(a) children’s programmes;

(b) news and current affairs programmes;

(d) religious programmes.

(4) Product placement is prohibited in on-demand programme services if—

(a) it is of cigarettes or other tobacco products,

(b) it is by or on behalf of an undertaking whose principal activity is the manufacture or sale of cigarettes or other tobacco products, ...

(ba) it is of electronic cigarettes or electronic cigarette refill containers, ...

(bb) it is by or on behalf of an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers, or

(5) Product placement of alcoholic drinks must not —

(a) be aimed specifically at persons under the age of eighteen;

(b) encourage immoderate consumption of such drinks.

(6) Product placement is otherwise permitted in programmes included in on-demand programme services provided that—

(a) conditions B to F are met, and

(b) if subsection (14) applies, condition G is also met.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Condition B is that the product placement has not influenced the content of the programme in a way that affects the editorial independence of the provider of the service.

(9) Condition C is that the product placement does not directly encourage the purchase or rental of goods or services, whether by making promotional reference to those goods or services or otherwise.

(10) Condition D is that the programme does not give undue prominence to the products, services or trade marks concerned.

(11) Condition E is that the product placement does not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

(12) Condition F is that the way in which the product, service or trade mark, or the reference to it, is included in the programme by way of product placement does not—

(a) prejudice respect for human dignity;

(b) promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;

(d) encourage behaviour grossly prejudicial to the protection of the environment;

(e) cause physical , mental or moral detriment to persons under the age of eighteen;

(ea) directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;

(f) directly encourage such persons to persuade their parents or others to purchase or rent goods or services;

(g) exploit the trust of such persons in parents, teachers or others; or

(h) unreasonably show such persons in dangerous situations.

(13) Condition G is that the on-demand programme service in question signals appropriately the fact that product placement is contained in a programme, no less frequently than—

(a) at the start and end of such a programme, and

(b) in the case of an on-demand programme service which includes advertising breaks within it, at the recommencement of the programme after each such advertising break.

(14) This subsection applies where the programme featuring the product placement has been produced or commissioned by the provider of the service or any connected person.

(15) Subject to subsections (15A), (15B) and (15C), this section applies only in relation to programmes the production of which begins after 19th December 2009.

(15A) Subsection (4)(ba) applies only in relation to programmes the production of which begins after 19th May 2016.

(15B) Subsection (4)(bb) applies only in relation to programmes the production of which begins after 31 October 2020.

(15C) This section applies in relation to a programme the production of which began before 1 November 2020 as if—

(a) subsection (3)(b) to (d) were omitted, and

(b) subsection (6)(a) included a reference to a condition that the programme in which the product, service or trademark, or the reference to it, is included is—

(i) a film made for cinema,

(ii) a film or series made for a television programme service or for an on-demand programme service,

(iii) a sports programme, or

(iv) a light entertainment programme.

(16) In this section—

“connected” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act;

“film made for cinema” means a film made with a view to its being shown to the general public first in a cinema;

“producer”, in relation to a programme, means the person by whom the arrangements necessary for the making of the programme are undertaken;

“programme” does not include an advertisement;

“relevant provider”, in relation to a programme, means—the provider of the on-demand programme service in which the programme is included; andthe producer of the programme;

“residual value” means any monetary or other economic value in the hands of the relevant provider other than the cost saving of including the product, service or trademark, or a reference to it, in a programme;

“significant value” means a residual value that is more than trivial; and

“trade mark”, in relation to a business, includes any image (such as a logo) or sound commonly associated with that business or its products or services.

368I

(1) Where the appropriate regulatory authority determine that a provider of an on-demand programme service is contravening or has contravened section 368CB or section 368D , or that a provider of a non-UK on-demand programme service that is a Tier 1 service is contravening or has contravened section 368D, they may do one or both of the following—

(a) give the provider an enforcement notification under this section;

(b) impose a financial penalty on the provider in accordance with section 368J.

(1A) Where OFCOM (as the appropriate regulatory authority) determine that a provider of a Tier 1 service is contravening or has contravened section 368HC, 368HJ(1), 368HK(2) or 368HP, they may do one or both of the following—

(a) give the provider an enforcement notice under this section;

(b) impose a financial penalty on the provider in accordance with section 368J.

(2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) or (1A) unless there are reasonable grounds for believing that a contravention of section 368CB or section 368D or (as the case may be) section 368HC, 368HJ (1), 368HK (2) or 368HP is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.

(3) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) or (1A) and imposes requirements on the provider to take such steps for complying with section 368CB or section 368D or (as the case may be) section 368HC, 368HJ (1), 368HK (2) or 368HP and for remedying the consequences of the contravention ... as may be specified in the notification.

(4) The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following—

(a) cease providing or restrict access to–

(i) a specified programme, or

(ii) programmes of a specified description;

(b) cease showing or restrict access to–

(i) a specified advertisement, or

(ii) advertisements of a specified description;

(c) provide additional information to users of the service prior to the selection of a specified programme by the user for viewing;

(d) show an advertisement only with specified modifications;

(e) publish a correction in the form and place and at the time specified; or

(f) publish a statement of the findings of the appropriate regulatory authority in the form and place and at the time specified.

(5) An enforcement notification must—

(a) include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and

(b) fix a reasonable period for the taking of the steps required by the notification.

(6) Where a provider is required by an enforcement notification to publish a correction or a statement of findings, the provider may publish with the correction or statement of findings a statement that it is published in pursuance of the enforcement notification.

(7) It is the duty of a provider to whom an enforcement notification has been given to comply with it.

(8) That duty 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

(8A) Subsection (8) applies whether or not the provider is in the United Kingdom.

(9) If a provider to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification the appropriate regulatory authority may impose a financial penalty on that provider in accordance with section 368J.

(10) A financial penalty may not be imposed on a provider of an on-demand programme service , or a non-UK on-demand programme service that is a Tier 1 service, under subsection (1) , (1A) or (9) in respect of an act or omission if the provider has been convicted of a criminal offence in respect of that act or omission.

Financial penalties

368J

(1) The amount of a penalty imposed on a provider under section 368BB ... , 368I or 368IA is to be such amount not exceeding 5 per cent. of the provider’s applicable qualifying revenue or £250,000 whichever is the greater amount, as the appropriate regulatory authority determine to be—

(a) appropriate; and

(b) proportionate to the contravention or failure in respect of which it is imposed.

(1A) Where the provider in question is the BBC, the amount of the penalty is to be such amount not exceeding the amount for the time being specified in an order under section 198(6) or, if no such order is in force, £250,000, as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the contravention or failure in respect of which it is imposed.

(2) In determining the amount of a penalty under subsection (1) or (1A) 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).

(3) The “applicable qualifying revenue”, in relation to a provider, means—

(a) the qualifying revenue for the provider’s last complete accounting period falling within the period during which the provider has been providing the service to which the contravention or failure relates; or

(b) in relation to a person whose first complete accounting period falling within that period has not ended when the penalty is imposed, the amount that the appropriate regulatory authority estimate to be the qualifying revenue for that period.

(4) For the purposes of subsection (3) the “qualifying revenue” for an accounting period consists of the aggregate of all the amounts received or to be received by the provider of the service to which the contravention or failure relates or by any connected person in the accounting period —

(a) for the inclusion in that service of advertisements, product placement and sponsorship; and

(b) in respect of charges made in that period for the provision of programmes included in that service.

(5) For the purposes of subsection (4), “connected” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act.

(6) A financial penalty imposed under this section—

(a) must be paid into the appropriate Consolidated Fund; and

(b) 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.

(7) For the purposes of subsections (3) and (6)—

(a) the amount of a person’s qualifying revenue for an accounting period, or

(b) the amount of any payment to be made into the appropriate Consolidated Fund by any person in respect of any such revenue,

is, in the event of a disagreement between the appropriate regulatory authority and that person, the amount determined by the appropriate regulatory authority.

(8) The references in this section to the payment of an amount into the appropriate Consolidated Fund—

(a) in the case of an amount received in respect of matters appearing to OFCOM to have no connection with Northern Ireland, is a reference to the payment of the amount into the Consolidated Fund of the United Kingdom;

(b) in the case of an amount received in respect of matters appearing to OFCOM to have a connection with Northern Ireland but no connection with the rest of the United Kingdom, is a reference to the payment of the amount into the Consolidated Fund of Northern Ireland; and

(c) in any other case, is a reference to the payment of the amount, in such proportions as OFCOM consider appropriate, into each of those Funds.

Suspension or restriction of service

368K

(1) The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service if they are satisfied—

(a) that the provider is in contravention of section 368BA , 368CB or 368D ... , or has failed to take a measure which the authority consider to be appropriate in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively;

(b) that the imposition of one or more financial penalties or enforcement notifications under section 368BB..., 368I or 368IA has not resulted in the remedying of the contravention or failure in question; and

(c) that the giving of a direction under this section would be appropriate and proportionate to the seriousness of the contravention or failure.

(1A) OFCOM (as the appropriate regulatory authority) must serve a notice under subsection (2) on a provider of a Tier 1 service if they are satisfied—

(a) that the provider is in contravention of section 368HC, 368HJ (1), 368HK (2) or 368HP,

(b) that the imposition of one or more financial penalties or enforcement notifications under section 368I has not resulted in the remedying of the contravention, and

(c) that the giving of a direction under this section would be appropriate and proportionate to the seriousness of the contravention.

(2) A notice under this subsection must—

(a) state that the appropriate regulatory authority are satisfied as mentioned in subsection (1) or (1A);

(b) state the reasons why they are satisfied as mentioned in subsection (1) or (1A);

(c) state that the appropriate regulatory authority will give a direction under this section unless the provider takes, within a period specified in the notice, such steps to remedy the contravention or failure within subsection (1)(a) or (1A)(a) as are so specified;

(d) specify any conditions that the appropriate regulatory authority propose to impose in the direction under section 368M(5)(b); and

(e) inform the provider that the provider has the right to make representations to the appropriate regulatory authority about the matters appearing to the authority to provide grounds for giving the proposed direction within the period specified for the purposes of paragraph (c).

(3) If, after considering any representations made to them by the provider within that period, the appropriate regulatory authority are satisfied that the provider has failed to take the steps specified in the notice for remedying the contravention or failure and that it is necessary in the public interest to give a direction under this section, the appropriate regulatory authority must give such of the following as appears to them appropriate and proportionate as mentioned in subsection (1)(c) or (1A)(c)—

(a) a direction that the entitlement of the provider to provide an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service is suspended (either generally or in relation to a particular service);

(b) a direction that that entitlement is restricted in the respects set out in the direction.

368L

(1) The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service if they are satisfied—

(a) that—

(i) the service has failed to comply with any requirement of section 368E(1) or (2) or sections 368F to 368H and that accordingly the provider has contravened section 368D(1), or

(ii) the provider has failed to take a measure which the authority consider to be appropriate in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively;

(b) that the failure is due to , or has resulted in, the inclusion in the service of material likely to encourage or to incite the commission of crime, or to lead to disorder; and

(2) A notice under this subsection must—

(a) state that the appropriate regulatory authority are satisfied as mentioned in subsection (1);

(b) give details about the matters which, in their opinion, constitute the contravention or failure in question;

(d) state that the appropriate regulatory authority may give a direction under this section after the end of the period of twenty-one days beginning with the day on which the notice is served on the provider; and

(e) inform the provider of the provider’s right to make representations to the appropriate regulatory authority within that period about the matters appearing to the appropriate regulatory authority to provide grounds for giving a direction under this section.

(3) A notice under subsection (2) has the effect specified under subsection (2)(c), which may be either—

(a) that the entitlement of the provider to provide an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service is suspended (either generally or in relation to a particular service), or

(b) that that entitlement is restricted in the respects set out in the notice.

(4) The suspension or restriction has effect as from the time when the notice is served on the provider until either—

(a) a direction given under this section takes effect; or

(b) the appropriate regulatory authority decide not to give such a direction.

(5) If, after considering any representations made to them by the provider within the period mentioned in subsection (2)(d), the appropriate regulatory authority are satisfied that it is necessary in the public interest to give a direction under this section, they must give such of the following as appears to them justified as mentioned in subsection (1)(c)—

(a) a direction that the entitlement of the provider to provide an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service is suspended (either generally or in relation to a particular service);

(b) a direction that that entitlement is restricted in the respects set out in the direction.

368M

(1) This section applies to a direction given to a provider under section 368K or 368L.

(2) A direction must specify the service to which it relates or specify that it relates to any on-demand programme service , or to any non-UK on-demand programme service that is a Tier 1 service, provided or to be provided by the provider.

(2A) A direction has effect in relation to a non-UK on-demand programme service that is a Tier 1 service only so far as the service is made available for use by members of the public in the United Kingdom.

(3) A direction, except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the provider.

(4) A direction under section 368L must specify a time for it to take effect, and that time must not fall before the end of twenty-eight days beginning with the day on which the direction is notified to the provider.

(5) A direction—

(a) may provide for the effect of a suspension or restriction to be postponed by specifying that it takes effect only at a time determined by or in accordance with the terms of the direction; and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the provider as appear to the appropriate regulatory authority to be appropriate for the purpose of protecting that provider’s customers.

(6) If the appropriate regulatory authority consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction or modify its conditions—

(a) with effect from such time as they may direct;

(b) subject to compliance with such requirements as they may specify; and

368N

(1) A person (“P”) is guilty of an offence if P provides an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service—

(a) while P’s entitlement to do so is suspended by a direction under section 368K or 368L, or

(b) in contravention of a restriction contained in such a direction.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

Information

368O

(1) The appropriate regulatory authority may by notice require a person within subsection (5) to provide them with any information that they require for the purpose of carrying out their functions under this Part.

(2) OFCOM may by notice require a person within subsection (5) to provide them with any information that they require for the purpose of carrying out their functions under Part 5 of the 1996 Act, so far as relating to Tier 1 services.

(3) The power conferred by subsection (1) or (2) includes power to require a person within subsection (5) to obtain or generate information.

(4) The power conferred by subsection (1) or (2) must be exercised in a way that is proportionate to the use to which the information is to be put by OFCOM.

(5) The persons within this subsection are—

(a) a provider of an on-demand programme service or a non-UK on-demand programme service;

(b) a person who was a provider of an on-demand programme service or a non-UK on-demand programme service at a time to which the required information relates;

(c) a person who is not within paragraph (a) or (b) but who appears to the appropriate regulatory authority to have, or to be able to obtain or generate, information required by them as mentioned in subsection (1).

(6) The information that the appropriate regulatory authority may require under subsection (1) includes, in particular, information that they require for any one or more of the following purposes—

(a) the purpose of determining whether a person is a provider of an on-demand programme service or a non-UK on-demand programme service;

(b) the purpose of determining whether a person is a provider of a Tier 1 service;

(c) the purpose of determining whether there has been any change of circumstances that may affect a determination mentioned in paragraph (a) or (b);

(d) the purpose of assessing compliance with any duty imposed on a provider of an on-demand programme service by or by virtue of Chapter 2;

(e) the purpose of assessing compliance with any duty imposed on a provider of a Tier 1 service by or by virtue of Chapter 3;

(f) the purpose of an investigation being carried out by the authority to determine whether a contravention of section 368BA, 368CB or 368D has occurred or is occurring;

(g) the purpose of an investigation being carried out by the authority to determine whether there has been a failure to take an appropriate measure for the purpose mentioned in section 368E(4) or a failure to implement such a measure effectively;

(h) the purpose of an investigation being carried out by the authority to determine whether a contravention of section 368HC, 368HJ (1), 368HK (2) or 368HP has occurred or is occurring;

(i) the purpose of ascertaining or calculating applicable qualifying revenue under section 368J;

(j) the purpose of determining the appropriate fee that a provider is required to pay under section 368NA.

(7) A notice under subsection (1) or (2) (an “information notice”) must—

(a) specify or describe the information to be provided,

(b) specify why the information is required,

(d) contain information about the consequences of not complying with the notice.

(8) An information notice must specify when the information must be provided which may be—

(a) on or by a specified date, or

(b) within a specified period.

(9) The power conferred by subsection (1) or (2) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.

(10) A person to whom an information notice is given must provide the information in accordance with any requirements included in the notice (subject to subsection (11)).

(11) The duty under subsection (10) does not require a disclosure of information if that disclosure would contravene the data protection legislation (but, in determining whether a disclosure would do so, that duty is to be taken into account).

(12) In this section—

“data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);

“information” includes technical information and material such as videos, audiovisual commercial communications, screenshots and archived material.

Application and interpretation of Part 4A

368P

(A1) Section 368BA (advance notification) does not apply in relation to an on-demand programme service provided or to be provided by the BBC.

(1) The following provisions do not apply to the BBC—

(a) section 368D(3)(za) and (zb) (duties of providers of on-demand programme services);

(b) section 368F (advertising);

(d) section 368NA (fees).

(2) In the following provisions references to a provider of an on-demand programme service do not include references to the BBC—

(a) section 368C(4) (codes of conduct: food and beverage promotion and children’s programmes);

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) section 368K (suspension or restriction of service for contraventions);

(f) section 368L (suspension or restriction of service for inciting crime or disorder);

(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Paragraph 2(2)(b) of Schedule 12 includes provision imposing obligations on the BBC in relation to on-demand programme services.

368Q

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

368R

(1) In this Part—

“appropriate regulatory authority” is to be construed in accordance with 368B;

“children’s programme” means a programme made—for a television programme service or for an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service, andfor viewing primarily by persons under the age of sixteen;

“electronic cigarette” means a product that—can be used for the consumption of nicotine-containing vapour via a mouth piece, or any component of that product, including a cartridge, a tank and the device without cartridge or tank (regardless of whether the product is disposable or refillable by means of a refill container and a tank, or rechargeable with single use cartridges), andis not a medicinal product within the meaning of regulation 2 of the Human Medicines Regulations 2012 (S.I. 2012/1916) or a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002 (S.I. 2002/618);

“electronic cigarette refill container” means a receptacle that—contains a nicotine-containing liquid, which can be used to refill an electronic cigarette, andis not a medicinal product within the meaning of regulation 2 of the Human Medicines Regulations 2012 or a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002;

“prescription-only medicine” means a prescription only medicine within the meaning of regulation 5(3) of the Human Medicines Regulations 2012;

“product placement” has the meaning given by section 368H(1);

“sponsorship” is to be construed in accordance with section 368G;

“tobacco product” has the meaning given in section 1 of the Tobacco Advertising and Promotion Act 2002.

(2) For the purposes of this Part, a programme is included in an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service if it is included in the range of programmes the service offers to users.

(3) For the purposes of this Part, advertising is included in an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service if it can be viewed by a user of the service as a result of the user selecting a programme to view.

(4) The services that are to be taken for the purposes of this Part to be available for use by members of the public include any service which—

(a) is made available for use only to persons who subscribe to the service (whether for a period or in relation to a particular occasion) or who otherwise request its provision; but

(b) is a service the facility of subscribing to which, or of otherwise requesting its provision, is offered or made available to members of the public.

(5) The person, and the only person, who is to be treated for the purposes of this Part as providing an on-demand programme service or a non-UK on-demand programme service is the person who has editorial responsibility for the service (see section 368A(4)).

(6) For the purposes of this Part—

(a) the provision of a service by the BBC does not include its provision by a BBC company;

(b) the provision of a service by S4C does not include its provision by an S4C company;

and, accordingly, control that is or is capable of being exercised by the BBC or S4C over decisions by a BBC company or an S4C company about what is to be comprised in a service is to be disregarded for the purposes of determining who has editorial responsibility for the service.

Penalties for contravention of information requirements

OFCOM’s power to require information in connection with dispute

The Gaelic Media Service

Adaptation of role of OFT in special public interest regime

Recovery of fees and penalties

Code relating to listed events

OFCOM’s standards code

Action following review under s. 355

On-demand programme services

23A

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Notification by providers

368BA

(1) A person must not provide an on-demand programme service unless, before beginning to provide it, that person has given a notification to the appropriate regulatory authority of the person’s intention to provide that service.

(2) A person who has given a notification for the purposes of subsection (1) must, before—

(a) providing the notified service with any significant differences; or

(b) ceasing to provide it,

give a notification to the appropriate regulatory authority of the differences or (as the case may be) of an intention to cease to provide the service.

(3) A notification for the purposes of this section must—

(a) be sent to the appropriate regulatory authority in such manner as the authority may require; and

(b) contain all such information as the authority may require.

(4) In this section, “significant differences” includes any change that may affect whether or not paragraphs (e) and (f) of section 368A(1) are satisfied.

368BB

(1) Where the appropriate regulatory authority determine that the provider of an on-demand programme service has contravened section 368BA, they may do one or both of the following—

(a) give the provider an enforcement notification under this section;

(b) impose a penalty on the provider in accordance with section 368J.

(2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of section 368BA has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.

(3) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes a requirement on the provider to take all such steps for remedying the contravention of section 368BA as may be specified in the notification.

(4) An enforcement notification must—

(a) include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and

(b) fix a reasonable period for taking the steps required by the notification.

(5) It is the duty of a person to whom an enforcement notification has been given to comply with it.

(6) That duty 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

(7) Subsection (6) applies whether or not the provider is in the United Kingdom.

Fees

368NA

(1) In this section “the authority” means each of these—

(a) the appropriate regulatory authority;

(b) (where they are not the appropriate regulatory authority) OFCOM.

(2) The authority may require a provider of an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service to pay them a fee.

(3) The authority must be satisfied that the amount of any fee required under subsection (2)—

(a) represents the appropriate contribution of the provider towards meeting the likely costs described in subsection (5)(a), and

(b) is justifiable and proportionate having regard to the provider who will be required to pay it and the functions in respect of which it is imposed.

(4) A different fee may be required in relation to different cases or circumstances.

(5) The authority must, for each financial year—

(a) prepare such estimate as it is practicable for them to make of the likely costs of carrying out the relevant functions during that year;

(b) ensure that the aggregate amount of the fees that are required to be paid to them under subsection (2) during that year is sufficient to enable them to meet, but not exceed, the costs estimated under paragraph (a);

(c) consult in such manner as they consider appropriate the providers likely to be required to pay them a fee under subsection (2) during that year;

(d) publish in such manner as they consider appropriate the amount of the fees they will require providers to pay to them under subsection (2) during that year.

(6) As soon as reasonably practicable after the end of the financial year, the authority must publish a statement setting out, for that year—

(a) the aggregate amount received by them during that year in respect of fees required to be paid under subsection (2);

(b) the aggregate amount outstanding and likely to be paid or recovered in respect of fees that were required to be so paid under subsection (2); and

(7) Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (6) is to be—

(a) carried forward; and

(b) taken into account in determining what is required to satisfy the requirement imposed by virtue of subsection (5)(b) in relation to the following year.

(8) The authority may repay to a person some or all of a fee paid to them by a person under subsection (2) if—

(a) that person has ceased to provide an on-demand programme service at some time during the period to which the fee relates;

(b) before ceasing to provide that service, that person gave the appropriate regulatory authority a notification under section 368BA(2); and

(c) that person did not cease to provide the service following a direction given by the appropriate regulatory authority under section 368K or 368L.

(8A) The authority may also repay some or all of a fee paid to them by a person under subsection (2) if—

(a) the person has ceased to provide a Tier 1 service at some time during the period to which the fee relates,

(b) the Tier 1 service in question was a non-UK on-demand programme service,

(d) the person did not cease to provide the Tier 1 service following a direction given by the appropriate regulatory authority under section 368K or 368L.

(8B) The authority may repay some of a fee paid to them by a person under subsection (2) if—

(a) the person has ceased to provide a Tier 1 service at some time during the period to which the fee relates,

(b) the Tier 1 service in question was an on-demand programme service that the person continues to provide, and

(9) The authority may make arrangements with any body designated under section 368B for that body to provide the authority with assistance in connection with the collection or repayment of fees required by them under this section.

(10) For the purposes of this section—

(a) the authority’s costs of carrying out the relevant functions during a financial year include their costs of preparing to carry out the relevant functions incurred during that year; and

(b) the authority’s costs of preparing to carry out the relevant functions incurred after 19 December 2009 but before the financial year in which those functions were first carried out by them are to be treated as if they were incurred during that year.

(11) In this section “relevant functions” means—

(a) in relation to the appropriate regulatory authority, their functions as the appropriate regulatory authority;

(b) in relation to OFCOM (where they are not the appropriate regulatory authority), their other functions under this Part.

(12) In this section “financial year” means a period of 12 months ending with 31 March.

124C

(1) The obligations of internet service providers under sections 124A and 124B are the “initial obligations”.

(2) If it appears to OFCOM—

(a) that a code has been made by any person for the purpose of regulating the initial obligations; and

(b) that it would be appropriate for them to approve the code for that purpose,

they may by order approve it, with effect from the date given in the order.

(3) The provision that may be contained in a code and approved under this section includes provision that—

(a) specifies conditions that must be met for rights and obligations under the copyright infringement provisions or the code to apply in a particular case;

(b) requires copyright owners or internet service providers to provide any information or assistance that is reasonably required to determine whether a condition under paragraph (a) is met.

(4) The provision mentioned in subsection (3)(a) may, in particular, specify that a right or obligation does not apply in relation to a copyright owner unless the owner has made arrangements with an internet service provider regarding—

(a) the number of copyright infringement reports that the owner may make to the provider within a particular period; and

(b) payment in advance of a contribution towards meeting costs incurred by the provider.

(5) The provision mentioned in subsection (3)(a) may also, in particular, provide that—

(a) except as provided by the code, rights and obligations do not apply in relation to an internet service provider unless the number of copyright infringement reports the provider receives within a particular period reaches a threshold set in the code; and

(b) if the threshold is reached, rights or obligations apply with effect from the date when it is reached or from a later time.

(6) OFCOM must not approve a code under this section unless satisfied that it meets the criteria set out in section 124E.

(7) Not more than one approved code may have effect at a time.

(8) OFCOM must keep an approved code under review.

(9) OFCOM may by order, at any time, for the purpose mentioned in subsection (2)—

(a) approve modifications that have been made to an approved code; or

(b) withdraw their approval from an approved code,

with effect from the date given in the order, and must do so if the code ceases to meet the criteria set out in section 124E.

(10) The consent of the Secretary of State is required for the approval of a code or the modification of an approved code.

(11) An order made by OFCOM under this section approving a code or modification must set out the code or modification.

(12) Section 403 applies to the power of OFCOM to make an order under this section.

(13) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

124D

(1) For any period when sections 124A and 124B are in force but for which there is no approved initial obligations code under section 124C, OFCOM must by order make a code for the purpose of regulating the initial obligations.

(2) OFCOM may but need not make a code under subsection (1) for a time before the end of—

(a) the period of six months beginning with the day on which sections 124A and 124B come into force, or

(b) such longer period as the Secretary of State may specify by notice to OFCOM.

(3) The Secretary of State may give a notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM to make a code with effect from the end of the period mentioned in subsection (2)(a) or any longer period for the time being specified under subsection (2)(b).

(4) A code under this section may do any of the things mentioned in section 124C(3) to (5).

(5) A code under this section may also—

(a) confer jurisdiction with respect to any matter (other than jurisdiction to determine appeals by subscribers) on OFCOM themselves;

(b) provide for OFCOM, in exercising such jurisdiction, to make awards of compensation, to direct the reimbursement of costs, or to do both;

(d) make other provision for the enforcement of such awards and directions;

(e) establish a body corporate, with the capacity to make its own rules and establish its own procedures, for the purpose of determining subscriber appeals;

(f) provide for a person with the function of determining subscriber appeals to enforce, or to participate in the enforcement of, any awards or directions made by the person;

(g) make other provision for the enforcement of such awards and directions; and

(h) make other provision for the purpose of regulating the initial obligations.

(6) OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124E.

(7) OFCOM must—

(a) keep a code under this section under review; and

(b) by order make any amendment of it that is necessary to ensure that while it is in force it continues to meet the criteria set out in section 124E.

(8) The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section.

(9) Section 403 applies to the power of OFCOM to make an order under this section.

(10) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

124E

(1) The criteria referred to in sections 124C(6) and 124D(6) are—

(a) that the code makes the required provision about copyright infringement reports (see subsection (2));

(b) that it makes the required provision about the notification of subscribers (see subsections (3) and (4));

(c) that it sets the threshold applying for the purposes of determining who is a relevant subscriber within the meaning of section 124B(3) (see subsections (5) and (6));

(d) that it makes provision about how internet service providers are to keep information about subscribers;

(e) that it limits the time for which they may keep that information;

(f) that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M;

(g) that the requirements concerning administration and enforcement are met in relation to the code (see subsections (7) and (8));

(h) that the requirements concerning subscriber appeals are met in relation to the code (see section 124K);

(i) that the provisions of the code are objectively justifiable in relation to the matters to which it relates;

(j) that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons;

(k) that those provisions are proportionate to what they are intended to achieve; and

(l) that, in relation to what those provisions are intended to achieve, they are transparent.

(2) The required provision about copyright infringement reports is provision that specifies—

(a) requirements as to the means of obtaining evidence of infringement of copyright for inclusion in a report;

(b) the standard of evidence that must be included; and

(3) The required provision about the notification of subscribers is provision that specifies, in relation to a subscriber in relation to whom an internet service provider receives one or more copyright infringement reports—

(a) requirements as to the means by which the provider identifies the subscriber;

(b) which of the reports the provider must notify the subscriber of; and

(4) The provision mentioned in subsection (3) must not permit any copyright infringement report received by an internet service provider more than 12 months before the date of a notification of a subscriber to be taken into account for the purposes of the notification.

(5) The threshold applying in accordance with subsection (1)(c) may, subject to subsection (6), be set by reference to any matter, including in particular one or more of—

(a) the number of copyright infringement reports;

(b) the time within which the reports are made; and

(6) The threshold applying in accordance with subsection (1)(c) must operate in such a way that a copyright infringement report received by an internet service provider more than 12 months before a particular date does not affect whether the threshold is met on that date; and a copyright infringement list provided under section 124B must not take into account any such report.

(7) The requirements concerning administration and enforcement are—

(a) that OFCOM have, under the code, the functions of administering and enforcing it, including the function of resolving owner-provider disputes;

(b) that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and

(c) that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners.

(8) The provision mentioned in subsection (7) may include, in particular—

(a) provision for the payment, to a person specified in the code, of a penalty not exceeding the maximum penalty for the time being specified in section 124L(2);

(b) provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's failure to comply with the code or the copyright infringement provisions.

(9) In this section “owner-provider dispute” means a dispute that—

(a) is between persons who are copyright owners or internet service providers; and

(b) relates to an act or omission in relation to an initial obligation or an initial obligations code.

124M

(1) The Secretary of State may by order specify provision that must be included in an initial obligations code or a technical obligations code about payment of contributions towards costs incurred under the copyright infringement provisions.

(2) Any provision specified under subsection (1) must relate to payment of contributions by one or more of the following only—

(a) copyright owners;

(b) internet service providers;

(3) Provision specified under subsection (1) may relate to, in particular—

(a) payment by a copyright owner of a contribution towards the costs that an internet service provider incurs;

(b) payment by a copyright owner or internet service provider of a contribution towards the costs that OFCOM incur.

(4) Provision specified under subsection (1) may include, in particular—

(a) provision about costs incurred before the provision is included in an initial obligations code or a technical obligations code;

(b) provision for payment in advance of expected costs (and for reimbursement of overpayments where the costs incurred are less than expected);

(d) other provision about when and how contributions must be paid.

(5) No order is to be made under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

124N

In sections 124A to 124M and this section—

“apparent infringement”, in relation to a copyright infringement report, means the infringement of copyright that the report states appears to have taken place;

“copyright infringement list” has the meaning given in section 124B(2);

“copyright infringement provisions” means sections 124A to 124M and this section;

“copyright infringement report” has the meaning given in section 124A(3);

“copyright owner” means—a copyright owner within the meaning of Part 1 of the Copyright, Designs and Patents Act 1988 (see section 173 of that Act); orsomeone authorised by that person to act on the person's behalf;

“copyright work” has the same meaning as in Part 1 of the Copyright, Designs and Patents Act 1988 (see section 1(2) of that Act);

“initial obligations” has the meaning given in section 124C(1);

“initial obligations code” has the meaning given in section 124A(2);

“internet access service” means an electronic communications service that—is provided to a subscriber;consists entirely or mainly of the provision of access to the internet; andincludes the allocation of an IP address or IP addresses to the subscriber to enable that access;

“internet service provider” means a person who provides an internet access service;

“IP address” means an internet protocol address;

“subscriber”, in relation to an internet access service, means a person who—receives the service under an agreement between the person and the provider of the service; anddoes not receive it as a communications provider;

“subscriber appeal” means—in relation to an initial obligations code, an appeal by a subscriber on grounds specified in the code in relation to—the making of a copyright infringement report;notification under section 124A(4);the inclusion or proposed inclusion of an entry in a copyright infringement list; orany other act or omission in relation to an initial obligation or an initial obligations code;in relation to a technical obligations code, an appeal by a subscriber on grounds specified in the code in relation to—the proposed taking of a technical measure; orany other act or omission in relation to a technical obligation or a technical obligations code;

“technical measure” has the meaning given in section 124G(3);

“technical obligation” has the meaning given in section 124G(2);

“technical obligations code” means a code in force under section 124I.

Information requested by EU bodies

Regulation of independent television services

Appeals from the Tribunal

Renewal of Channel 3 licences: determination of licence areas

Licensing of the public teletext service

Renewal of radio multiplex licences

Changes of control of Channel 3 services

Action following review under s. 353

Action following review under s. 355

Grants to providers

Annual factual and statistical report

SCHEDULE 11A

Introductory

1

(1) In this Part “product placement”, in relation to a programme included in a television programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark, where the inclusion—

(a) is for a commercial purpose;

(b) is in return for the making of any payment, or the giving of other valuable consideration, to any relevant provider or any person connected with a relevant provider; and

(2) “Prop placement”, in relation to such a programme, means the inclusion in the programme of, or of a reference to, a product, service or trade mark where—

(a) the provision of the product, service or trade mark has no significant value; and

(b) no relevant provider, or person connected with a relevant provider, has received any payment or other valuable consideration in relation to its inclusion in, or the reference to it in, the programme, disregarding the costs saved by including the product, service or trademark, or a reference to it, in the programme.

2

The product placement requirements are—

(a) that the product placement does not fall within any of paragraphs 3 to 6;

(b) that all of the conditions in paragraph 7 are met; and

Prohibitions of product placement

3

(1) Product placement falls within this paragraph if it is in a—

(a) children’s programme;

(b) news or current affairs programme;

(d) religious programme.

(2) In sub-paragraph (1) “children’s programme” means a programme made—

(a) for a television programme service or for an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service, and

(b) for viewing primarily by persons under the age of sixteen.

4

Product placement falls within this paragraph if it is—

(a) of cigarettes or other tobacco products;

(b) by or on behalf of an undertaking whose principal activity is the manufacture or sale of cigarettes or other tobacco products; ...

(ba) of electronic cigarettes or electronic cigarette refill containers; ...

(bb) by or on behalf of an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers; or

5

Product placement of alcoholic drinks falls within this paragraph if—

(a) it is aimed specifically at persons under the age of eighteen; or

(b) it encourages immoderate consumption of such drinks.

6

(1) Product placement falls within this paragraph if it is in a programme to which this paragraph applies and—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the product placement is of anything within sub-paragraph (2); or

(2) The following are within this sub-paragraph—

(a) ... cigarette lighters, cigarette papers or pipes intended for smoking;

(b) medicinal products;

(d) infant formulae or follow-on formulae;

(e) a food or drink high in fat, salt or sugar;

(f) gambling services.

(3) This paragraph applies to—

(a) a programme that has been produced or commissioned by the provider of the television programme service in which it is included, or by a person connected with that provider, and that is not a film made for cinema; and

(b) a programme that has been produced or commissioned by any other person with a view to its first showing taking place in a television programme service that falls within section 211(2).

Conditions applying to product placement

7

(1) These are the conditions referred to in paragraph 2(b).

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Condition B is that the product placement has not influenced the content or scheduling of the programme in a way that affects the editorial independence of the provider of the television programme service in which the programme is included.

(4) Condition C is that the product placement does not directly encourage the purchase or rental of goods or services, whether by making promotional reference to those goods or services or otherwise.

(5) Condition D is that the programme does not give undue prominence to the products, services or trade marks concerned.

(6) Condition E is that the product placement does not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

(7) Condition F is that the way in which the product, service or trade mark, or the reference to it, is included in the programme by way of product placement does not—

(a) prejudice respect for human dignity;

(b) promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;

(d) encourage behaviour grossly prejudicial to the protection of the environment;

(e) cause physical , mental or moral detriment to persons under the age of eighteen;

(ea) directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;

(f) directly encourage such persons to persuade their parents or others to purchase or rent goods or services;

(g) exploit the trust of such persons in parents, teachers or others; or

(h) unreasonably show such persons in dangerous situations.

8

(1) This paragraph applies where the programme featuring the product placement has been produced or commissioned by the provider of the television programme service in which it is included or by a person connected with that provider.

(2) The condition referred to in paragraph 2(c) is that the television programme service in which the programme is included signals appropriately the fact that product placement is contained in a programme no less frequently than—

(a) at the start and end of such a programme; and

(b) in the case of a television programme service which includes advertising breaks within it, at the recommencement of the programme after each such advertising break.

Minor definitions

9

In this Schedule—

“connected” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act;

“electronic cigarette” has the meaning given in section 368R;

“electronic cigarette refill container” has the meaning given in section 368R;

“film made for cinema” means a film made with a view to its being shown to the general public first in a cinema;

“follow-on formulae” has the meaning given in Article 2 of Commission Directive 2006/141/EC on infant formulae and follow-on formulae and amending Directive 1999/21/EC;

“infant formulae” has the meaning given in Article 2 of Commission Directive 2006/141/EC on infant formulae and follow-on formulae and amending Directive 1999/21/EC;

“medicinal product” has the meaning given in section 130 of the Medicines Act 1968;

“prescription-only medicine” means a medicinal product of a description or falling within a class specified in an order made under section 58 of the Medicines Act 1968;

“producer”, in relation to a programme, means the person by whom the arrangements necessary for the making of the programme are undertaken;

“programme” does not include an advertisement;

“relevant provider”, in relation to a programme, means—the provider of the television programme service in which the programme is included; andthe producer of the programme;

“residual value” means any monetary or other economic value in the hands of the relevant provider other than the cost saving of including the product, service or trademark, or a reference to it, in a programme;

“significant value” means a residual value that is more than trivial;

“tobacco product” has the meaning given in section 1 of the Tobacco Advertising and Promotion Act 2002;

“trade mark”, in relation to a business, includes any image (such as a logo) or sound commonly associated with that business or its products or services.

Online infringement of copyright: obligations of internet service providers

124A

(1) This section applies if it appears to a copyright owner that—

(a) a subscriber to an internet access service has infringed the owner's copyright by means of the service; or

(b) a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner's copyright by means of the service.

(2) The owner may make a copyright infringement report to the internet service provider who provided the internet access service if a code in force under section 124C or 124D (an “initial obligations code”) allows the owner to do so.

(3) A “copyright infringement report” is a report that—

(a) states that there appears to have been an infringement of the owner's copyright;

(b) includes a description of the apparent infringement;

(c) includes evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered;

(d) is sent to the internet service provider within the period of 1 month beginning with the day on which the evidence was gathered; and

(e) complies with any other requirement of the initial obligations code.

(4) An internet service provider who receives a copyright infringement report must notify the subscriber of the report if the initial obligations code requires the provider to do so.

(5) A notification under subsection (4) must be sent to the subscriber within the period of 1 month beginning with the day on which the provider receives the report.

(6) A notification under subsection (4) must include—

(a) a statement that the notification is sent under this section in response to a copyright infringement report;

(b) the name of the copyright owner who made the report;

(d) evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered;

(e) information about subscriber appeals and the grounds on which they may be made;

(f) information about copyright and its purpose;

(g) advice, or information enabling the subscriber to obtain advice, about how to obtain lawful access to copyright works;

(h) advice, or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use; and

(i) anything else that the initial obligations code requires the notification to include.

(7) For the purposes of subsection (6)(h) the internet service provider must take into account the suitability of different protection for subscribers in different circumstances.

(8) The things that may be required under subsection (6)(i), whether in general or in a particular case, include in particular—

(a) a statement that information about the apparent infringement may be kept by the internet service provider;

(b) a statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber;

(c) a statement that, following such a disclosure, the copyright owner may apply to a court to learn the subscriber's identity and may bring proceedings against the subscriber for copyright infringement; and

(d) where the requirement for the provider to send the notification arises partly because of a report that has already been the subject of a notification under subsection (4), a statement that the number of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures.

(9) In this section “notify”, in relation to a subscriber, means send a notification to the electronic or postal address held by the internet service provider for the subscriber (and sections 394 to 396 do not apply).

124B

(1) An internet service provider must provide a copyright owner with a copyright infringement list for a period if—

(a) the owner requests the list for that period; and

(b) an initial obligations code requires the internet service provider to provide it.

(2) A “copyright infringement list” is a list that—

(a) sets out, in relation to each relevant subscriber, which of the copyright infringement reports made by the owner to the provider relate to the subscriber, but

(b) does not enable any subscriber to be identified.

(3) A subscriber is a “relevant subscriber” in relation to a copyright owner and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code.

124F

(1) OFCOM must prepare the following reports for the Secretary of State about the infringement of copyright by subscribers to internet access services.

(2) OFCOM must prepare a full report for—

(a) the period of 12 months beginning with the first day on which there is an initial obligations code in force; and

(b) each successive period of 12 months.

(3) OFCOM must prepare an interim report for—

(a) the period of 3 months beginning with the first day on which there is an initial obligations code in force; and

(b) each successive period of 3 months, other than one ending at the same time as a period of 12 months under subsection (2).

But this is subject to any direction by the Secretary of State under subsection (4).

(4) The Secretary of State may direct that subsection (3) no longer applies, with effect from the date given in the direction.

(5) A full report under this section must include—

(a) an assessment of the current level of subscribers' use of internet access services to infringe copyright;

(b) a description of the steps taken by copyright owners to enable subscribers to obtain lawful access to copyright works;

(c) a description of the steps taken by copyright owners to inform, and change the attitude of, members of the public in relation to the infringement of copyright;

(d) an assessment of the extent of the steps mentioned in paragraphs (b) and (c);

(e) an assessment of the extent to which copyright owners have made copyright infringement reports;

(f) an assessment of the extent to which they have brought legal proceedings against subscribers in relation to whom such reports have been made;

(g) an assessment of the extent to which any such proceedings have been against subscribers in relation to whom a substantial number of reports have been made; and

(h) anything else that the Secretary of State directs OFCOM to include in the report.

(6) An interim report under this section must include—

(a) the assessments mentioned in subsection (5)(a), (e) and (f); and

(b) anything else that the Secretary of State directs OFCOM to include in the report.

(7) OFCOM must send a report prepared under this section to the Secretary of State as soon as practicable after the end of the period for which it is prepared.

(8) OFCOM must publish every full report under this section—

(a) as soon as practicable after they send it to the Secretary of State, and

(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.

(9) OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.

124G

(1) The Secretary of State may direct OFCOM to—

(a) assess whether one or more technical obligations should be imposed on internet service providers;

(b) take steps to prepare for the obligations;

(2) A “technical obligation”, in relation to an internet service provider, is an obligation for the provider to take a technical measure against some or all relevant subscribers to its service for the purpose of preventing or reducing infringement of copyright by means of the internet.

(3) A “technical measure” is a measure that—

(a) limits the speed or other capacity of the service provided to a subscriber;

(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;

(d) limits the service provided to a subscriber in another way.

(4) A subscriber to an internet access service is “relevant” if the subscriber is a relevant subscriber, within the meaning of section 124B(3), in relation to the provider of the service and one or more copyright owners.

(5) The assessment and steps that the Secretary of State may direct OFCOM to carry out or take under subsection (1) include, in particular—

(a) consultation of copyright owners, internet service providers, subscribers or any other person;

(b) an assessment of the likely efficacy of a technical measure in relation to a particular type of internet access service; and

(6) Internet service providers and copyright owners must give OFCOM any assistance that OFCOM reasonably require for the purposes of complying with any direction under this section.

(7) The Secretary of State must lay before Parliament any direction under this section.

(8) OFCOM must publish every report under this section—

(a) as soon as practicable after they send it to the Secretary of State, and

(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.

(9) OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.

124H

(1) The Secretary of State may by order impose a technical obligation on internet service providers if—

(a) OFCOM have assessed whether one or more technical obligations should be imposed on internet service providers; and

(b) taking into account that assessment, reports prepared by OFCOM under section 124F, and any other matter that appears to the Secretary of State to be relevant, the Secretary of State considers it appropriate to make the order.

(2) No order may be made under this section within the period of 12 months beginning with the first day on which there is an initial obligations code in force.

(3) An order under this section must specify the date from which the technical obligation is to have effect, or provide for it to be specified.

(4) The order may also specify—

(a) the criteria for taking the technical measure concerned against a subscriber;

(b) the steps to be taken as part of the measure and when they are to be taken.

(5) No order is to be made under this section unless—

(a) the Secretary of State has complied with subsections (6) to (10), and

(b) a draft of the order has been laid before Parliament and approved by a resolution of each House.

(6) If the Secretary of State proposes to make an order under this section, the Secretary of State must lay before Parliament a document that—

(a) explains the proposal, and

(b) sets it out in the form of a draft order.

(7) During the period of 60 days beginning with the day on which the document was laid under subsection (6) (“the 60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modifications).

(8) In preparing a draft order under this section to give effect to the proposal, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations, and

(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(9) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document laid before Parliament under subsection (6).

(10) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than 4 days.

EU consultation for section 45 conditions

124I

(1) For any period during which there are one or more technical obligations in force under section 124H, OFCOM must by order make a technical obligations code for the purpose of regulating those obligations.

(2) The code may be made separately from, or in combination with, any initial obligations code under section 124D.

(3) A code under this section may—

(a) do any of the things mentioned in section 124C(3) to (5) or section 124D(5)(a) to (g); and

(b) make other provision for the purpose of regulating the technical obligations.

(4) OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124J.

(5) OFCOM must—

(a) keep a code under this section under review; and

(b) by order make any amendment of it that is necessary to ensure that while it is in force it continues to meet the criteria set out in section 124J.

(6) The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section.

(7) Section 403 applies to the power of OFCOM to make an order under this section.

(8) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

124J

(1) The criteria referred to in section 124I(4) are—

(a) that the requirements concerning enforcement and related matters are met in relation to the code (see subsections (2) and (3));

(b) that the requirements concerning subscriber appeals are met in relation to the code (see section 124K);

(c) that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M;

(d) that it makes any other provision that the Secretary of State requires it to make;

(e) that the provisions of the code are objectively justifiable in relation to the matters to which it relates;

(f) that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons;

(g) that those provisions are proportionate to what they are intended to achieve; and

(h) that, in relation to what those provisions are intended to achieve, they are transparent.

(2) The requirements concerning enforcement and related matters are—

(a) that OFCOM have, under the code, the functions of administering and enforcing it, including the function of resolving owner-provider disputes;

(b) that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and

(c) that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners.

(3) The provision made concerning enforcement and related matters may also (unless the Secretary of State requires otherwise) include, in particular—

(a) provision for the payment, to a person specified in the code, of a penalty not exceeding the maximum penalty for the time being specified in section 124L(2);

(b) provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's infringement or error in relation to the code or the copyright infringement provisions.

(4) In this section “owner-provider dispute” means a dispute that—

(a) is between persons who are copyright owners or internet service providers; and

(b) relates to an act or omission in relation to a technical obligation or a technical obligations code.

124K

(1) The requirements concerning subscriber appeals are—

(a) for the purposes of section 124E(1)(h), the requirements of subsections (2) to (8); and

(b) for the purposes of section 124J(1)(b), the requirements of subsections (2) to (11).

(2) The requirements of this subsection are—

(a) that the code confers on subscribers the right to bring a subscriber appeal and, in the case of a technical obligations code, a further right of appeal to the First-tier Tribunal;

(b) that there is a person who, under the code, has the function of determining subscriber appeals;

(c) that that person is for practical purposes independent (so far as determining subscriber appeals is concerned) of internet service providers, copyright owners and OFCOM; and

(d) that there are adequate arrangements under the code for the costs incurred by that person in determining subscriber appeals to be met by internet service providers, copyright owners and the subscriber concerned.

(3) The code must provide for the grounds of appeal (so far as an appeal relates to, or to anything done by reference to, a copyright infringement report) to include the following—

(a) that the apparent infringement to which the report relates was not an infringement of copyright;

(b) that the report does not relate to the subscriber's IP address at the time of the apparent infringement.

(4) The code must provide for the grounds of appeal to include contravention by the copyright owner or internet service provider of the code or of an obligation regulated by the code.

(5) The code must provide that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that, as respects any copyright infringement report to which the appeal relates or by reference to which anything to which the appeal relates was done (or, if there is more than one such report, as respects each of them)—

(a) the apparent infringement was an infringement of copyright, and

(b) the report relates to the subscriber's IP address at the time of that infringement.

(6) The code must provide that, where a ground mentioned in subsection (3) is relied on, the appeal must be determined in favour of the subscriber if the subscriber shows that—

(a) the act constituting the apparent infringement to which the report relates was not done by the subscriber, and

(b) the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service.

(7) The powers of the person determining subscriber appeals must include power—

(a) to secure so far as practicable that a subscriber is not prejudiced for the purposes of the copyright infringement provisions by an act or omission in respect of which an appeal is determined in favour of the subscriber;

(b) to make an award of compensation to be paid by a copyright owner or internet service provider to a subscriber affected by such an act or omission; and

(c) where the appeal is determined in favour of the subscriber, to direct the copyright owner or internet service provider to reimburse the reasonable costs of the subscriber.

(8) The code must provide that the power to direct the reimbursement of costs under subsection (7)(c) is to be exercised to award reasonable costs to a subscriber whose appeal is successful, unless the person deciding the appeal is satisfied that it would be unjust to give such a direction having regard to all the circumstances including the conduct of the parties before and during the proceedings.

(9) In the case of a technical obligations code, the powers of the person determining subscriber appeals must include power—

(a) on an appeal in relation to a technical measure or proposed technical measure—

(i) to confirm the measure;

(ii) to require the measure not to be taken or to be withdrawn;

(iii) to substitute any other technical measure that the internet service provider has power to take;

(b) to exercise the power mentioned in paragraph (a)(ii) or (iii) where an appeal is not upheld but the person determining it is satisfied that there are exceptional circumstances that justify the exercise of the power;

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