Part 2

Networks, services and the radio spectrum
Chapter 1

Electronic communications networks and services

Enforcement of conditions

Civil liability for breach of conditions or confirmation decision
104
1
The obligation of a person to comply with—
a
the conditions set under section 45 which apply to him,
aa
the person’s commitments that are made binding by a commitments decision,
b
requirements imposed on him by an enforcement notification under section 95, ...
ba
requirements imposed on the person by a notification under section 96A and a confirmation decision under section 96C; and
c
the conditions imposed by a direction under section 98 , 100 or 100A,
shall be a duty owed to every person who may be affected by a contravention of the condition, commitment or requirement.
2
Where a duty is owed by virtue of this section to a person—
a
a breach of the duty that causes that person to sustain loss or damage, and
b
an act which—
i
by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and
ii
is done wholly or partly for achieving that result,
shall be actionable at the suit or instance of that person.
3
In proceedings brought against a person by virtue of subsection (2)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition, commitment or requirement in question.
4
The consent of OFCOM is required for the bringing of proceedings by virtue of subsection (1)(a) or (aa).
5
Where OFCOM give a consent for the purposes of subsection (4) subject to conditions relating to the conduct of the proceedings, the proceedings are not to be carried on by that person except in compliance with those conditions.
Word in s. 104(3) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 52(3)
S. 104 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))
Words in s. 104(4) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 52(4)
S. 104 applied (6.4.2023) by The Trade (Mobile Roaming) Regulations 2023 (S.I. 2023/214), regs. 1(b), 7(2)
Word in s. 104(1) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 52(2)(b)
Word in s. 104(1)(b) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(a) (with Sch. 3 paras. 2, 13)
S. 104(1)(aa) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 52(2)(a)
S. 104(1)(ba) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(a) (with Sch. 3 paras. 2, 13)
S. 104 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)
Words in s. 104(1)(c) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(b) (with Sch. 3 paras. 2, 13)
Words in s. 104 heading substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(c) (with Sch. 3 paras. 2, 13)