1. This Order may be cited as the Contracting Out (Functions relating to Broadcast Advertising) and Specification of Relevant Functions Order 2004 and shall come into force on the day after the day on which it is made.
2.—(1) In this Order–
“the 1988 Regulations” means the Control of Misleading Advertisements Regulations 1988(1);
“the 1990 Act” means the Broadcasting Act 1990(2);
“the 1994 Regulations” means the Medicines (Monitoring of Advertising) Regulations 1994(3);
“the 1996 Act” means the Broadcasting Act 1996(4);
“the 2003 Act” means the Communications Act 2003;
“authorised person” means a person authorised by OFCOM for the purposes of article 3, 6 or 7; and
“employee” in relation to a body corporate, includes any director or other officer of that body.
(2) Except where an indication to the contrary appears, expressions used in this Order have the same meaning in this Order as they do in the 2003 Act.
3.—(1) Subject to article 5, any function relating to advertising may be exercised by, or by employees of, such persons (if any) as may be authorised in that behalf by OFCOM—
(a)either wholly or to such extent as may be specified in the authorisation;
(b)either generally or in such cases as may be so specified; and
(c)either unconditionally or subject to the fulfilment of such conditions as may be so specified.
(2) In this Order, a “function relating to advertising” means a function which is a function of OFCOM and which is—
(a)described in Part 1, 2 or 3 of the Schedule; and
(b)exercised only for the purposes of or in connection with regulating standards and practice in advertising to be included in television and radio services.
4.—(1) Any function relating to advertising described in Part 2 of the Schedule may be exercised by a person authorised by virtue of article 3 where he considers that a contravention of OFCOM’s standards code (in so far as it relates to the regulation of standards and practice in advertising) in relation to a service to which that Part of the Schedule applies can be appropriately remedied by the inclusion of a correction or statement of findings (or both) in that service.
(2) Any function relating to advertising described in Part 3 of the Schedule may be exercised by a person authorised by virtue of article 3 only so far as to determine that no such notice as is mentioned in that Part should be served on the holder of a Broadcasting Act licence or the Welsh Authority.
5. Nothing in this Order allows OFCOM to authorise the exercise by a person of any function relating to advertising for the purposes of or in connection with—
(a)securing the standards objectives referred to in—
(i)section 319(2)(g) of the 2003 Act (prohibition on political advertising),
(ii)section 319(2)(j) of the 2003 Act (prevention of unsuitable sponsorship), and
(iii)section 319(2)(k) of the 2003 Act (prevention of undue discrimination between advertisers);
(b)section 321(4) of the 2003 Act (general responsibility with respect to advertising etc.);
(c)section 321(5) of the 2003 Act (consulting the Secretary of State about advertising etc.);
(d)giving directions pursuant to section 322 of or paragraph 16 of Part 2 of Schedule 12 to the 2003 Act in relation to a licensed service or the Welsh Authority respectively;
(e)reporting to the Secretary of State pursuant to section 325(3) of the 2003 Act on any issues with regard to OFCOM’s standards code;
(f)general standards and practice governing the sponsorship of programmes, including the prohibition of any form or method of sponsorship.
6.—(1) Any function relating to the control of misleading advertising in the 1988 Regulations may be exercised by, or by employees of, such persons (if any) as may be authorised in that behalf by OFCOM—
(a)either wholly or to such extent as may be specified in the authorisation;
(b)either generally or in such cases as may be so specified; and
(c)either unconditionally or subject to the fulfilment of such conditions as may be so specified.
(2) In this article, a “function relating to the control of misleading advertising” means a function conferred on OFCOM by or under the 1988 Regulations in connection with the following provisions of those Regulations—
(a)regulation 8 (consideration of complaints about misleading or comparative advertisements in a licensed service);
(b)regulation 9 (control by OFCOM of misleading advertisements and comparative advertising);
(c)regulation 10 (consideration of complaints about misleading or comparative advertisements on S4C or S4C Digital); or
(d)regulation 11 (control of misleading advertisements and comparative advertisements on S4C and S4C Digital).
7.—(1) Any function relating to medicines advertising in the 1994 Regulations may be exercised by, or by employees of, such persons (if any) as may be authorised in that behalf by OFCOM—
(a)either wholly or to such extent as may be specified in the authorisation;
(b)either generally or in such cases as may be so specified; and
(c)either unconditionally or subject to the fulfilment of such conditions as may be so specified.
(2) In this article, a “function relating to medicines advertising” means a function conferred on OFCOM by or under the 1994 Regulations in connection with the following provisions of those Regulations—
(a)regulation 9(1) (consideration of complaints about breaches of regulation 9 of the Medicines (Advertising) Regulations 1994(5));
(b)regulation 11(1) (directions for preventing the publication or further publication of an advertisement); or
(c)regulation 11(4) (giving and communicating reasons for the decision).
8.—(1) Where any provision of the enactments listed in paragraph (3) authorises or requires anything to be done by OFCOM in connection with or for the purposes of a function which may also be exercised by an authorised person, each such enactment shall have effect in any case where that function is so exercised by that person as if a reference to OFCOM included a reference to the authorised person.
(2) In the enactments listed in paragraph (3) any reference to a thing done by OFCOM shall have effect where it is done by an authorised person as though it included a reference to a thing done by that person.
(3) The enactments are—
(a)the 2003 Act;
(b)the 1996 Act;
(c)the 1990 Act;
(d)the 1994 Regulations; and
(e)the 1988 Regulations.
9.—(1) The modifications made by this article have effect in relation to any time at which an authorisation given by OFCOM by virtue of article 3 has effect.
(2) In relation to any such time, section 69 of the Copyright, Designs and Patents Act 1988(6) (no infringement of copyright by use of recordings for certain supervisory purposes) shall have effect as if—
(a)in subsection (2)(d), the reference to section 334(3) of the 2003 Act were a reference to that provision as modified by article 8; and
(b)in subsection (3)—
(i)the reference to the use of any thing mentioned in paragraph (a) or (b) of that subsection by OFCOM in connection with the performance of any function of theirs under the 1990, 1996 or 2003 Act included a reference to the use of that thing by another person in connection with his performance of any such function which he is authorised to perform by virtue of article 3; and
(ii)the reference in paragraph (a) of that subsection to the provision of that thing to OFCOM included a reference to its provision to that other person.
(3) In relation to any such time, paragraph 17 of Schedule 2 to that Act of 1988 (no infringement of rights in performances by use of recordings for certain supervisory purposes) shall have effect as if—
(a)in sub-paragraph (2)(d), the reference to section 334(3) of the 2003 Act were a reference to that provision as modified by article 8; and
(b)in sub-paragraph (3)—
(i)the reference to the use of any thing mentioned in paragraph (a) or (b) of that sub-paragraph by OFCOM in connection with the performance of any function of theirs under the 1990, 1996 or 2003 Act included a reference to the use of that thing by another person in connection with his performance of any such function which he is authorised to perform by virtue of article 3; and
(ii)the reference in paragraph (a) of that sub-paragraph to the provision of that thing to OFCOM included a reference to its provision to that other person.
10.—(1) Where OFCOM have authorised any person to exercise any function relating to advertising by virtue of article 3 (the relevant function)—
(a)each of the provisions mentioned in paragraph (2) shall have effect as if the reference to conditions requiring the licence holder to provide or as the case may be furnish OFCOM in such manner and at such times with such information as is described there included a reference to conditions requiring the licence holder to provide the person so authorised with such information as that person may require for the purpose of exercising the relevant function; and
(b)section 343 of the 2003 Act shall have effect as if the reference to the duty of the Welsh Authority to comply with every direction given to them by OFCOM to provide OFCOM with such information as is described there included a reference to a duty to comply with a direction given to the Welsh Authority by the person so authorised to provide him with such information as he may require for the purpose of exercising the relevant function in relation to the Welsh Authority.
(2) The provisions are—
(a)in the 1990 Act, sections 4(1)(c) and 87(1)(d);
(b)in the 1996 Act, sections 4(1)(c) and 43(1)(d).
11.—(1) Section 393 of the 2003 Act (general restrictions on disclosure of information) shall apply to a person authorised by virtue of article 3 who obtains information with respect to a particular business in exercise of a power mentioned in subsection (1) of that section as it would apply to OFCOM in exercise of the same such power.
(2) For the purposes of section 393(4) of the 2003 Act (relevant functions for the purposes of restrictions on disclosure of information), the following function is specified, namely any function of the Health Ministers conferred by or under the 1994 Regulations.
(3) In this article “the Health Ministers” means the Ministers specified in section 1(1)(a) of the Medicines Act 1968(7) and in the case of anything falling to be done by them under the 1994 Regulations means any one of them acting alone or any two or more of them acting jointly.
12.—(1) In this article, references to an unresolved complaint are references to a complaint which—
(a)was made before the date (“the effective date”) on which an authorisation given for the purposes of article 3, 6 or (as the case may be) 7 took effect, but had not been disposed of by OFCOM by that date; and
(b)had it been made after the effective date, could have been disposed of by an authorised person by virtue of that authorisation.
(2) The provision that may be made by an authorisation given for the purposes of article 3, 6 or 7 includes provision authorising a person to dispose of unresolved complaints; and where, and to the extent that, a person is so authorised—
(a)anything done, or treated as done, by or in relation to OFCOM before the effective date for the purposes of or in connection with any such complaint shall be treated as if it had been done by or in relation to the person authorised to dispose of that complaint; and
(b)this Order shall have effect as if that person had been authorised to dispose of the complaint at the time when the thing referred to in paragraph (a) was done.
(3) In this article, references to disposing of a complaint are references to handling and resolving or (as the case may be) considering that complaint.
Andrew McIntosh
Parliamentary Under Secretary of State
Department for Culture, Media and Sport
19th July 2004