Communications Act 2003

Valid from 29/12/2003

Power to proscribe unacceptable foreign television and radio services U.K.

329 Proscription orders U.K.

(1) Where—

(a) a foreign service to which this section applies comes to OFCOM’s attention, and

(b) they consider that the service is unacceptable and should be the subject of an order under this section,

they must send a notification to the Secretary of State giving details of the service and their reasons for considering that an order should be made.

(2) A service is not to be considered unacceptable by OFCOM unless they are satisfied that—

(a) programmes containing objectionable matter are included in the service; and

(b) that the inclusion of objectionable matter in programmes so included is occurring repeatedly.

(3) Matter is objectionable for the purposes of subsection (2) only if—

(a) it offends against taste or decency;

(b) it is likely to encourage or to incite the commission of crime;

(c) it is likely to lead to disorder; or

(d) it is likely to be offensive to public feeling.

(4) Where the Secretary of State has received a notification under this section in the case of a service, he may make an order—

(a) identifying the service in such manner as he thinks fit; and

(b) proscribing it.

(5) The Secretary of State is not to make an order proscribing a service unless he is satisfied that the making of the order is—

(a) in the public interest; and

(b) compatible with the international obligations of the United Kingdom.

(6) The television and sound services to which this section applies are—

(a) television licensable content services provided otherwise than by broadcasting from a satellite;

(b) digital television programme services;

(c) digital additional television services;

(d) radio licensable sound services provided otherwise than by being broadcast from a satellite;

(e) digital sound programme services; and

(f) digital additional sound services.

(7) A service to which this section applies is a foreign service if it—

(a) is a service capable of being received in the United Kingdom for the provision of which no Broadcasting Act licence is either in force or required to be in force; but

(b) is also a service for the provision of which such a licence would be required—

(i) in the case of a service falling within subsection (6)(a) to (c), if the person providing it were under the jurisdiction of the United Kingdom for the purposes of the Television without Frontiers Directive; and

(ii) in any other case, if the person providing it provided it from a place in the United Kingdom or were a person whose principal place of business is in the United Kingdom.

330 Effect of proscription order U.K.

(1) This section applies where a service is for the time being proscribed by an order under section 329.

(2) The proscribed service is not to be included in—

(a) a multiplex service; or

(b) a cable package.

(3) In this section “multiplex service” means a television multiplex service, a radio multiplex service or a general multiplex service.

(4) In this section “cable package” means (subject to subsection (5)) a service by means of which programme services are packaged together with a view to their being distributed—

(a) by means of an electronic communications service;

(b) so as to be available for reception by members of the public in the United Kingdom; and

(c) without the final delivery of the programme services to the persons to whom they are distributed being by wireless telegraphy.

(5) Programme services distributed by means of an electronic communications service do not form part of a cable package if—

(a) the distribution of those services forms only part of a service provided by means of that electronic communications service; and

(b) the purposes for which the service of which it forms a part is provided do not consist wholly or mainly in making available television programmes or radio programmes (or both) for reception by members of the public.

331 Notification for enforcing proscription U.K.

(1) Where OFCOM determine that there are reasonable grounds for believing that there has been a contravention of section 330 in relation to a multiplex service or a cable package, they may give a notification under this section to—

(a) the provider of that multiplex service; or

(b) the person providing the cable package.

(2) A notification under this section is one which—

(a) sets out the determination made by OFCOM; and

(b) requires the person to whom it is given to secure that the proscribed service (so long as it remains proscribed) is not—

(i) included in the notified person’s multiplex service, or

(ii) distributed as part of his cable package,

at any time more than seven days after the day of the giving of the notification.

(3) If it is reasonably practicable for a person to whom a notification is given under this section to secure that the proscribed service ceases to be included in that person’s multiplex service, or to be distributed as part of his cable package, before the end of that seven days, then he must do so.

(4) It shall be the duty of a person to whom a notification is given under this section to comply with the requirements imposed by the notification and by subsection (3).

(5) That duty shall be enforceable in civil proceedings by OFCOM—

(a) for an injunction;

(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

(c) for any other appropriate remedy or relief.

(6) In this section “cable package” and “multiplex service” each has the same meaning as in section 330.

332 Penalties for contravention of notification under s. 331 U.K.

(1) OFCOM may impose a penalty on a person who contravenes a requirement imposed on him by or under section 331.

(2) Before imposing a penalty on a person under this section OFCOM must give him a reasonable opportunity of making representations to them about their proposal to impose the penalty.

(3) The amount of the penalty imposed on a person is to be such amount not exceeding £5,000 as OFCOM determine to be—

(a) appropriate; and

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

(4) In making that determination OFCOM must have regard to—

(a) any representations made to them by the person notified under section 331; and

(b) any steps taken by him for complying with the requirements imposed on him under that section.

(5) Where OFCOM impose a penalty on a person under this section, they shall—

(a) notify the person penalised; and

(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

(6) A penalty imposed under this section must be paid to OFCOM within the period fixed by them.

(7) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (3).

(8) No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(9) For the purposes of this section there is a separate contravention in respect of every day on which the proscribed service is at any time included in a person’s multiplex service or distributed as part of his cable package.

(10) In this section “multiplex service” and “cable package” each has the same meaning as in section 330.