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Communications Act 2003

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Point in time view as at 23/08/2024.

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Communications Act 2003, PART 4A is up to date with all changes known to be in force on or before 14 November 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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[F1PART 4AU.K.ON-DEMAND PROGRAMME SERVICES

Textual Amendments

[F2Chapter 1U.K.Introductory Provisions]

Textual Amendments

PreliminaryU.K.

[F3368ZAAudiovisual programmesU.K.

This Part applies in relation to the provision of programmes with or without sounds which consist of moving or still images, or of legible text, or of a combination of those things.]

Textual Amendments

368AMeaning of “on-demand programme service”U.K.

(1)For the purposes of this Act, a service [F4(or a dissociable section of a service)] is an “on-demand programme service” if—

(a)its principal purpose is the provision of programmes [F5(as described in section 368ZA)];

(b)access to it is on-demand;

(c)there is a person who has editorial responsibility for it;

(d)it is made available by that person for use by members of the public; F6...

[F7(e)that person's head office is in the United Kingdom, and

(f)editorial decisions about the service are taken in the United Kingdom.]

(2)Access to a service [F8(or dissociable section of a service)] is on-demand if—

(a)the service [F9(or dissociable section of the service)] enables the user to view, at a time chosen by the user, programmes selected by the user from among the programmes included in the service [F9(or dissociable section of the service)]; and

(b)the programmes viewed by the user are received by the user by means of an electronic communications network (whether before or after the user has selected which programmes to view).

(3)For the purposes of subsection (2)(a), the fact that a programme may be viewed only within a period specified by the provider of the service [F10(or dissociable section of the service)] does not prevent the time at which it is viewed being one chosen by the user.

(4)A person has editorial responsibility for a service [F11(or dissociable section of a service)] if that person has general control—

(a)over what programmes are included in the range of programmes offered to users; and

(b)over the manner in which the programmes are organised in that range;

and the person need not have control of the content of individual programmes or of the broadcasting or distribution of the service [F12(or dissociable section of the service)] (and see section 368R(6)).

(5)If an on-demand programme service (“the main service”) offers users access to a relevant ancillary service, the relevant ancillary service is to be treated for the purposes of this Part as a part of the main service.

(6)In subsection (5), “relevant ancillary service” means a service or facility that consists of or gives access to assistance for disabled people in relation to some or all of the programmes included in the main service.

(7)In this section “assistance for disabled people” has the same meaning as in Part 3.

Textual Amendments

F5Words in s. 368A(1)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 23(a)(ii) (with Pt. 7)

[F13368AAMeaning of non-UK on-demand programme serviceU.K.

(1)For the purposes of this Act, a service (or a dissociable section of a service) is a “non-UK on-demand programme service” if—

(a)it meets the conditions in paragraphs (a) to (d) of section 368A(1),

(b)it does not meet one or both of the conditions in paragraphs (e) and (f) of section 368A(1), and

(c)the members of the public for whose use it is made available are or include members of the public in the United Kingdom.

(2)Section 368A(5) to (7) applies in relation to a non-UK on-demand programme service as it applies in relation to an on-demand programme service.

Textual Amendments

368ABOverview of Part 4AU.K.

(1)This section provides an overview of this Part.

(2)This Chapter (Chapter 1) gives the meaning of certain expressions used in this Part.

(3)Chapter 2 contains provision for the regulation of on-demand programme services (as defined by section 368A).

(4)Chapter 3—

(a)sets out the rules that apply for determining when an on-demand programme service (as defined by section 368A) or a non-UK on-demand programme service (as defined by section 368AA) is a Tier 1 service,

(b)makes provision for certain sections of Chapter 2 to apply in relation to a non-UK on-demand programme service that is a Tier 1 service in the same way that they apply in relation to an on-demand programme service, and

(c)makes provision for the additional regulation of Tier 1 services (whether on-demand programme services or non-UK on-demand programme services).

(5)Chapter 4 makes provision about the enforcement of certain provisions of Chapters 2 and 3.

(6)Chapter 5 makes supplementary provision.]

Textual Amendments

368BThe appropriate regulatory authorityU.K.

[F14(A1)OFCOM is the appropriate regulatory authority for all purposes of this Part in relation to the BBC (and, in relation to the BBC, OFCOM may not designate any other body to be the appropriate regulatory authority for any of those purposes).]

[F15(A2)OFCOM is the appropriate regulatory authority for the purposes of sections 368HC, 368HJ and 368HK (and OFCOM may not designate any other body to be the appropriate regulatory authority for those purposes).]

(1)OFCOM may designate any body corporate to be, to the extent provided by the designation, the appropriate regulatory authority for the purposes of any provision of this Part, subject to [F16subsections (A1) [F17, (A2)] and (9)].

(2)To the extent that no body is designated for a purpose, OFCOM is the appropriate regulatory authority for that purpose.

(3)Where a body is designated for a purpose, OFCOM may act as the appropriate regulatory authority for that purpose concurrently with or in place of that body.

(4)OFCOM may provide a designated body with assistance in connection with any of the functions of the body under this Part.

(5)A designation may in particular—

(a)provide for a body to be the appropriate regulatory authority in relation to on-demand programme services [F18, or non-UK on-demand programme services that are Tier 1 services,] of a specified description;

(b)provide that a function of the appropriate regulatory authority is exercisable by the designated body—

(i)to such extent as may be specified;

(ii)either generally or in such circumstances as may be specified; and

(iii)either unconditionally or subject to such conditions as may be specified.

(6)The conditions that may be specified pursuant to subsection (5)(b)(iii) include a condition to the effect that a function may, generally or in specified circumstances, be exercised by the body only with the agreement of OFCOM.

(7)A designation has effect for such period as may be specified and may be revoked by OFCOM at any time.

(8)OFCOM must publish any designation in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to be affected by it.

(9)OFCOM may not designate a body unless, as respects that designation, they are satisfied that the body—

(a)is a fit and proper body to be designated;

(b)has consented to being designated;

(c)has access to financial resources that are adequate to ensure the effective performance of its functions as the appropriate regulatory authority;

(d)is sufficiently independent of providers of on-demand programme services [F19or non-UK on-demand programme services]; and

(e)will, in performing any function to which the designation relates, have regard in all cases—

(i)to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and

(ii)to such of the matters mentioned in section 3(4) as appear to the body to be relevant in the circumstances.

(10)Subject to any enactment or rule of law restricting the disclosure or use of information by OFCOM or by a designated body—

(a)a designated body may supply information to another designated body for use by that other body in connection with any of its functions as the appropriate regulatory authority;

(b)a designated body may supply information to OFCOM for use by OFCOM in connection with any of their functions under this Part;

(c)OFCOM may supply information to a designated body for use by that body in connection with any of its functions as the appropriate regulatory authority.

[F20(d)OFCOM may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of OFCOM as the appropriate regulatory authority;

(e)a designated body may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of the designated body as the appropriate regulatory authority.]

(11)In carrying out their functions as the appropriate regulatory authority, a designated body may carry out, commission or support (financially or otherwise) research.

(12)In this section—

  • “designation” means a designation under this section and cognate expressions are to be construed accordingly;

  • “specified” means specified in a designation.

Textual Amendments

[F21Chapter 2U.K.Regulation of on-demand programme services]

Textual Amendments

[F22List of providersU.K.

Textual Amendments

368BZAMaintenance of list of providersU.K.

(1)OFCOM must establish and maintain an up to date list of persons [F23who have—

(a)given a notification to OFCOM under section 368BA(1) of their intention to provide an on-demand programme service, and

(b)not given a further notification under section 368BA(2)(b) of their intention to cease to provide it].

F24(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F25(3)OFCOM must publish the up to date list on a publicly accessible part of their website.]]

Textual Amendments

[F26Notification by providersU.K.

Textual Amendments

F26Ss. 368BA, 368BB and cross-heading inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010 (S.I. 2010/419), regs. 1(1), 4

368BAAdvance notification to appropriate regulatory authorityU.K.

(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.

[F27(4)In this section, “significant differences” includes any change that may affect [F28whether or not paragraphs (e) and (f) of section 368A(1) are satisfied.]]

Textual Amendments

368BBEnforcement of section 368BAU.K.

(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

(c)for any other appropriate remedy or relief.]

[F29(7)Subsection (6) applies whether or not the provider is in the United Kingdom.]

Textual Amendments

F30[F31...]U.K.

Textual Amendments

F31Ss. 368BC, 368BD and cross-heading inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 93(2), 118(6); S.I. 2017/765, reg. 2(y)

F32368BCAccessibility for people with disabilitiesU.K.

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

Textual Amendments

F33368BDEnforcement of regulations under section 368BCU.K.

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

Textual Amendments

Duties of the appropriate regulatory authorityU.K.

368CDuties of the appropriate regulatory authorityU.K.

(1)It is the duty of the appropriate regulatory authority to take such steps as appear to them best calculated to secure that every provider of an on-demand programme service complies with the requirements of [F34sections 368CB and 368D].

[F35(2)The appropriate regulatory authority must encourage providers of on-demand programme services to develop accessibility action plans with a view to continuously and progressively making such services more accessible to people with disabilities.

(2A)The appropriate regulatory authority must provide a single, easily accessible (including by people with disabilities), online point of contact for providing information and receiving complaints regarding accessibility of on-demand programme services to people with disabilities.]

F36(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The appropriate regulatory authority must encourage providers of on-demand programme services to develop codes of conduct regarding standards concerning the appropriate promotion of food or beverages by sponsorship of, or in advertising which accompanies or is included in, children’s programmes.

[F37(5)The appropriate regulatory authority must draw up, and from time to time review and revise, guidance for providers of on-demand programme services concerning measures that may be appropriate for the purposes of section 368E(4) (ensuring specially restricted material is not available to under-18s).]

[F38(6)The appropriate regulatory authority must draw up and, from time to time, review and revise, guidance setting out their intentions concerning the exercise of their functions under this Part in relation to the prohibition imposed by section 368FA (advertising: less healthy food and drink).

(7)The appropriate regulatory authority must consult the Secretary of State before drawing up or revising guidance under subsection (6).]

Textual Amendments

F39368CACode on accessibility for people with disabilitiesU.K.

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

Textual Amendments

Duties of service providersU.K.

[F40368CBQuota for European worksU.K.

(1)A person providing an on-demand programme service must secure that, in each year, on average at least 30% of the programmes included in the service are European works.

(2)A person providing an on-demand programme service must ensure the prominence of European works in the service.

(3)Subsections (1) and (2) do not apply to a person providing an on-demand programme service in relation to any period throughout which—

(a)the service has a low turnover or a low audience, or

(b)it is impracticable or unjustified for those subsections to apply because of the nature or theme of the service.

(4)An exemption under subsection (3)(b) is at the discretion of the appropriate regulatory authority.

(5)Where a person does not provide an on-demand programme service for a whole year, compliance with subsection (1) is to be assessed in relation to the period in that year during which the person does provide the service.

(6)In assessing a provider’s compliance with subsection (1), any period for which an exemption under subsection (3)(a) or (b) applies to the provider is to be discounted.

(7)In this section—

  • “European works” has the same meaning as in the Audiovisual Media Services Directive [F41as it has effect in EU law as amended from time to time] (see Article 1(1)(n), (2) and (3) of that Directive) and includes works deemed to be European works by Article 1(4) of that Directive;

  • “programmes” does not include advertisements, news programmes, sports events, games, teletext services or teleshopping.

(8)This section is to be interpreted in accordance with the Communication from the European Commission (2020/C223/03) “Guidelines pursuant to Article 13(7) of the Audiovisual Media Services Directive on the calculation of the share of European works in on-demand catalogues and on the definition of low audience and low turnover” published in Volume 63 of the Official Journal of the European Union on 7 July 2020 [F42as amended from time to time].]

Textual Amendments

368DDuties of service providersU.K.

(1)The provider of an on-demand programme service must ensure that the service complies with the requirements of sections [F43368E(1) and (2) and 368F to 368H].

(2)The provider of an on-demand programme service (“P”) must supply the following information to users of the service—

(a)P’s name;

(b)P’s address;

(c)P’s electronic address;

[F44(ca)a statement that P is [F45subject to regulation by the appropriate regulatory authority as a result of section 368A(1)(e) and (f);]]

(d)the name, address and electronic address of any body which is the appropriate regulatory authority for any purpose in relation to P or [F46the on-demand programme service] that P provides.

(3)The provider of an on-demand programme service must—

[F47(zza)provide the appropriate regulatory authority with a copy of any accessibility action plan drawn up by the provider as mentioned in section 368C(2);]

[F48(za)pay to the appropriate regulatory authority such fee as that authority may require under section 368NA;

(zb)retain a copy of every programme included in the service for at least [F4960 days] after the day on which the programme ceases to be available for viewing;]

(a)comply with any requirement under section 368O (provision of information);

(b)co-operate fully with the appropriate authority for any purpose within [F50section 368O(2) or (6)].

[F51(3A)A copy of a programme retained for the purposes of subsection (3)(zb) must be of a standard and in a format which allows the programme to be viewed as it was made available for viewing.]

(4)In this section “electronic address” means an electronic address to which users may send electronic communications, and includes any number or address used for the purposes of receiving such communications.

Textual Amendments

368EHarmful materialU.K.

(1)An on-demand programme service must not contain any material likely to incite [F52violence or hatred against a group of persons or a member of a group of persons based on any of the grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg on 12 December 2007].

[F53(2)An on-demand programme service must not contain any prohibited material.

(3)“Prohibited material” means—

[F54(zza)material the inclusion of which in an on-demand programme service would be an offence under section 1 of the Terrorism Act 2006 (encouragement of terrorism),]

[F55(za)material the inclusion of which in an on-demand programme service [F56is conduct of a kind that, immediately before IP completion day, would have been] required by any of the following to be punishable as a criminal offence—

F57(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, or

(iii)Article 1 of Council Framework Decision (2008/913/JHA) of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law,]

(a)a video work which the video works authority has determined for the purposes of the 1984 Act not to be suitable for a classification certificate to be issued in respect of it, or

(b)material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would determine for those purposes that the video work was not suitable for a classification certificate to be issued in respect of it.

(4)[F58A person providing an on-demand programme service must take appropriate measures to ensure that any specially restricted material is made available by the service in a manner which secures that persons under the age of 18 will not normally see or hear it.

(4A)The measures are to be proportionate to the potential of the material to harm the physical, mental or moral development of such persons.]

(5)“Specially restricted material” means—

(a)a video work in respect of which the video works authority has issued a R18 classification certificate,

(b)material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would issue a R18 classification certificate, or

(c)other material that might F59... impair the physical, mental or moral development of persons under the age of 18.

(6)In determining whether any material falls within subsection (3)(b) or (5)(b), regard must be had to any guidelines issued by the video works authority as to its policy in relation to the issue of classification certificates.

(7)In this section—

  • “the 1984 Act” means the Video Recordings Act 1984;

  • “classification certificate” has the same meaning as in the 1984 Act (see section 7 of that Act);

  • “R18 classification certificate” means a classification certificate containing the statement mentioned in section 7(2)(c) of the 1984 Act that no video recording containing the video work is to be supplied other than in a licensed sex shop;

  • “the video works authority” means the person or persons designated under section 4(1) of the 1984 Act as the authority responsible for making arrangements in respect of video works other than video games;

  • “video work” has the same meaning as in the 1984 Act (see section 1(2) of that Act).]

Textual Amendments

F52Words in s. 368E(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 32(a) (with Pt. 7)

F53Ss. 368E(2)-(7) substituted for s. 368E(2) (1.12.2014) by The Audiovisual Media Services Regulations 2014 (S.I. 2014/2916), regs. 1(1), 2

F58S. 368E(4)(4A) substituted for s. 368E(4) (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 32(c) (with Pt. 7)

F59Word in s. 368E(5)(c) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 32(d) (with Pt. 7)

368FAdvertisingU.K.

(1)Advertising of the following products is prohibited in on-demand programme services—

(a)cigarettes or other tobacco products;

[F60(aa)electronic cigarettes or electronic cigarette refill containers;]

(b)any prescription-only medicine.

[F61(2)Advertising of alcoholic drinks is only permitted in on-demand programme services if—

(a)it is not aimed specifically at persons under the age of eighteen, nor does it, in particular, depict such persons consuming alcoholic drinks;

(b)it does not link the consumption of alcohol to enhanced physical performance or to driving;

(c)it does not create the impression that the consumption of alcohol contributes towards social or sexual success;

(d)it does not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;

(e)it does not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; and

(f)it does not place emphasis on high alcoholic content as being a positive quality of alcoholic drinks.]

(3)Advertising included in an on-demand programme service—

(a)must be readily recognisable as such, and

(b)must not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

(4)Advertising included in an on-demand programme service must not—

(a)prejudice respect for human dignity;

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

(c)encourage behaviour prejudicial to health or safety;

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

(e)cause physical [F62, mental] or moral detriment to persons under the age of eighteen;

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

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

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

(i)unreasonably show such persons in dangerous situations.

Textual Amendments

F62Word in s. 368F(4)(e) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 33(b) (with Pt. 7)

[F63368FAAdvertising: less healthy food and drinkU.K.

(1)From the beginning of [F641 October 2025], on-demand programme services must not, between 5.30 am and 9.00 pm, include advertisements for an identifiable less healthy food or drink product.

(2)The prohibition imposed by subsection (1) does not apply in relation to advertisements included in on-demand programme services as a result of arrangements made by or on behalf of a person who is, at the time when the arrangements are made, a food or drink SME.

(3)The Secretary of State may by regulations provide for further exemptions from the prohibition imposed by subsection (1).

(4)For the purposes of this section—

(a)“advertisements” includes advertisements and sponsorship announcements (within the meaning given by section 368G(17)) under a sponsorship agreement;

(b)a product is “identifiable”, in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product;

(c)a food or drink product is “less healthy” if—

(i)it falls within a description specified in regulations made by the Secretary of State, and

(ii)it is “less healthy” in accordance with the relevant guidance;

(d)“the relevant guidance” means the guidance entitled “Nutrient Profiling Technical Guidance” published by the Department of Health on 1 January 2011;

(e)“food or drink SME” means a small or medium enterprise, within the meaning given by regulations made by the Secretary of State, of a description specified in the regulations.

(5)Regulations under subsection (4)(e) that make provision by reference to the number of members of staff of a person may make provision about who is to count as a member of staff (including members of staff of another person).

(6)The Secretary of State may, before the date specified in subsection (1), amend that subsection so as to substitute a later date for the date that is for the time being specified there.

(7)The Secretary of State may by regulations amend this section to change the meaning of “the relevant guidance”.

(8)Before making regulations under subsection (3) or (7), the Secretary of State must consult such persons as the Secretary of State considers appropriate.

(9)A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.]

Textual Amendments

368GSponsorshipU.K.

(1)An on-demand programme service or a programme included in an on-demand programme service must not be sponsored—

(a)for the purpose of promoting cigarettes or other tobacco products, or

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

[F65(1A)An on-demand programme service or a programme included in an on-demand programme service must not be sponsored—

(a)for the purpose of promoting electronic cigarettes or electronic cigarette refill containers, or

(b)by an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers.]

(2)An on-demand programme service or a programme included in an on-demand programme service must not be sponsored for the purpose of promoting a prescription-only medicine.

(3)An on-demand programme service may not include a news programme or current affairs programme that is sponsored.

(4)Subsections (5) to (11) apply to an on-demand programme service that is sponsored or that includes any programme that is sponsored.

(5)The sponsoring of a service or programme must not influence the content of that service or programme in a way that affects the editorial independence of the provider of the service.

(6)Where a service or programme is sponsored for the purpose of promoting goods or services, the sponsored service or programme and sponsorship announcements relating to it must not directly encourage the purchase or rental of the goods or services, whether by making promotional reference to them or otherwise.

(7)Where a service or programme is sponsored for the purpose of promoting an alcoholic drink, the service or programme and sponsorship announcements relating to it must not—

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

(b)encourage the immoderate consumption of such drinks.

(8)A sponsored service must clearly inform users of the existence of a sponsorship agreement.

(9)The name of the sponsor and the logo or other symbol (if any) of the sponsor must be displayed at the beginning or end of a sponsored programme.

(10)Techniques which exploit the possibility of conveying a message subliminally or surreptitiously must not be used in a sponsorship announcement.

(11)A sponsorship announcement must not—

(a)prejudice respect for human dignity;

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

(c)encourage behaviour prejudicial to health or safety;

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

(e)cause physical [F66, mental] or moral detriment to persons under the age of eighteen;

[F67(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.

(12)For the purposes of this Part a programme included in an on-demand programme service is “sponsored” if a person (“the sponsor”) other than—

(a)the provider of that service, or

(b)the producer of that programme,

has met some or all of the costs of the programme for the purpose of promoting the name, trademark, image, activities, services or products of the sponsor or of another person.

(13)But a programme is not sponsored if it falls within this section only by virtue of the inclusion of product placement (see section 368H(1)) or prop placement (see section 368H(2)).

(14)For the purposes of subsection (12) a person meets some or all of the costs of a programme included in a service only if that person makes a payment or provides other resources for the purpose of meeting or saving some or all of the costs of—

(a)producing that programme;

(b)transmitting that programme; or

(c)making that programme available as part of the service.

(15)For the purposes of this Part an on-demand programme service is “sponsored” if a person (“the sponsor”) other than the provider of the service has met some or all of the costs of providing the service for the purpose of promoting the name, trademark, image, activities, services or products of the sponsor or another person.

(16)For the purposes of subsection (15) a person is not to be taken to have met some or all of the costs of providing a service only because a programme included in the service is sponsored by that person.

(17)In this section a “sponsorship announcement” means—

(a)anything included for the purpose of complying with subsection (8) or (9), and

(b)anything included at the same time as or otherwise in conjunction with anything within paragraph (a).

Textual Amendments

368HProhibition of product placement and exceptionsU.K.

(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

(c)is not prop placement.

(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.

[F68(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;

(c)consumer 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, F69...

[F70(ba)it is of electronic cigarettes or electronic cigarette refill containers, F71...]

[F72(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]

(c)it is of prescription-only medicines.

(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 [F73B] to F are met, and

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

F74(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;

(c)encourage behaviour prejudicial to health or safety;

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

(e)cause physical [F75, mental] or moral detriment to persons under the age of eighteen;

[F76(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)[F77Subject to [F78subsections (15A), (15B) and (15C)],] this section applies only in relation to programmes the production of which begins after 19th December 2009.

[F79(15A)Subsection (4)(ba) applies only in relation to programmes the production of which begins after 19th May 2016.]

[F80(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;

  • [F81“programme” does not include an advertisement;]

  • “relevant provider”, in relation to a programme, means—

    (a)

    the provider of the on-demand programme service in which the programme is included; and

    (b)

    the 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.

Textual Amendments

F69Word in s. 368H(4)(b) omitted (20.5.2016) by virtue of The Tobacco and Related Products Regulations 2016 (S.I. 2016/507), regs. 1(2), 46(4)(a)

[F82Chapter 3U.K.Regulation of Tier 1 services

Textual Amendments

Meaning of Tier 1 serviceU.K.

368HAMeaning of Tier 1 serviceU.K.

(1)In this Act, a “Tier 1 service” means—

(a)an on-demand programme service that falls within subsection (2), and

(b)an on-demand programme service, or a non-UK on-demand programme service, that is a Tier 1 service by virtue of regulations under section 368HB.

(2)An on-demand programme service falls within this subsection if it is an on-demand programme service that is being used by a public service broadcaster, other than the BBC, to contribute to the fulfilment of its public service remit.

(3)In this section, “public service remit”—

(a)in relation to S4C, has the meaning given by section 204A;

(b)in relation to the provider of a Channel 3 service or Channel 5, has the meaning given by section 265(2);

(c)in relation to the provider of Channel 4, has the meaning given by section 265(3).

368HBPower to specify Tier 1 services etcU.K.

(1)The Secretary of State may by regulations provide that an on-demand programme service, or a non-UK on-demand programme service, is a Tier 1 service if it is specified, or falls within a description specified, in the regulations.

(2)The Secretary of State may make regulations under subsection (1) only if the Secretary of State is satisfied that it is appropriate for the providers of the services specified, or falling within a description specified, in the regulations to be subject to the duties imposed on providers of Tier 1 services.

(3)Before making regulations under subsection (1) (but after considering any report prepared by OFCOM under subsection (5) or (6)), the Secretary of State must publish on a publicly accessible part of an official website of His Majesty’s Government a list of the services, or descriptions, that the Secretary of State proposes to specify in the regulations.

(4)Regulations are not to be made under subsection (1) unless the period of five sitting days beginning with the first sitting day after the date on which the requirement in subsection (3) is met in relation to the regulations has expired.

(5)Before making the first regulations under subsection (1), the Secretary of State must—

(a)request OFCOM to prepare a report on the operation of the market in the United Kingdom for on-demand programme services and non-UK on-demand programme services, and

(b)have regard to the contents of that report.

(6)Where the Secretary of State is considering whether to make a second or subsequent set of regulations under subsection (1), the Secretary of State—

(a)may request OFCOM to prepare a further report on the operation of the market in the United Kingdom for on-demand programme services and non-UK on-demand programme services, and

(b)where a request is made, the Secretary of State must have regard to the contents of the report in deciding whether to make the regulations.

(7)In preparing a report requested under subsection (5)(a) or (6)(a), OFCOM must deal with any matters specified by the Secretary of State in the request (as well as any other matters that they consider appropriate).

(8)For the purposes of preparing a report requested under subsection (5)(a) or (6)(a), OFCOM may request any person who appears to be the provider of an on-demand programme service or a non-UK on-demand programme service to provide OFCOM with any information relating to that service that is specified in the request.

(9)The power conferred by subsection (8) 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)Information provided in response to a request by OFCOM may be shared by OFCOM with the Secretary of State but may not be further shared (whether by OFCOM or the Secretary of State).

(11)A request under subsection (8) may—

(a)specify a period of time within which the information must be provided;

(b)specify the form and manner in which the information must be provided.

(12)A person who is requested to provide information under subsection (8) must comply with that request.

(13)In this section “sitting day” means a day on which both Houses of Parliament sit.

Duties relating to notification etcU.K.

368HCNotification to OFCOMU.K.

(1)A person who provides a Tier 1 service must give OFCOM a notification (a “Tier 1 notification”) to that effect.

(2)Subsection (3) applies where—

(a)regulations are made under section 368HB(1), and

(b)a non-UK on-demand programme service is specified or falls within a description specified in the regulations.

(3)OFCOM must, for the purpose of assisting with compliance with subsection (1), inform the provider of that Tier 1 service of that fact.

(4)A person who gives a Tier 1 notification must also notify OFCOM if the person ceases to provide a Tier 1 service.

(5)A Tier 1 notification or a notification under subsection (4) must—

(a)be sent to OFCOM in such manner as they may require, and

(b)include such information as they may require.

368HDLists of Tier 1 providersU.K.

(1)OFCOM must establish and maintain an up to date list of persons who have—

(a)given a Tier 1 notification to OFCOM under section 368HC(1), and

(b)not given a further notification under section 368HC(4).

(2)The list must include contact details which may be used by members of the public wishing to contact a Tier 1 service.

(3)OFCOM must publish the list on a publicly accessible part of their website.

Application etc of Chapter 2 to certain Tier 1 servicesU.K.

368HEApplication etc of Chapter 2 to certain Tier 1 servicesU.K.

(1)Subsection (2) applies where a non-UK on-demand programme service is a Tier 1 service by virtue of regulations under section 368HB.

(2)The following provisions of Chapter 2 apply in relation to the Tier 1 service as if any reference in those provisions to an on-demand programme service included a reference to the Tier 1 service—

(a)section 368C, so far as relating to the duties of the appropriate regulatory authority in relation to section 368D;

(b)section 368D (duties of service providers), apart from section 368D(2)(ca);

(c)section 368E (harmful material);

(d)section 368F (advertising);

(e)section 368FA (advertising: less healthy food and drink);

(f)section 368G (sponsorship);

(g)section 368H (prohibition of product placement and exceptions).

(3)A duty or prohibition arising by virtue of subsection (2) applies in relation to the Tier 1 service only on and after the end of the grace period that applies in relation to the Tier 1 service.

(4)In subsection (3), “the grace period”, in relation to a non-UK on-demand programme service that is a Tier 1 service, means the period of 12 months beginning with the day on which the non-UK on-demand programme service became a Tier 1 service.

(5)Where regulations under section 368HB(1) provide that a non-UK on-demand programme service specified in the regulations is a Tier 1 service, the regulations may also provide—

(a)that subsections (1) and (2) do not apply in relation to the service, or

(b)that those subsections apply in relation to the service as if the reference in subsection (4) to 12 months were a reference to such lesser period as may be specified in the regulations.

(6)Section 368D(3)(zb) applies in relation to an on-demand programme service that is a Tier 1 service by virtue of section 368HA(1)(a) with the modification that the reference in section 368D(3)(zb) to 60 days is to be read as a reference to 90 days.

Standards code for Tier 1 servicesU.K.

368HFStandards code for Tier 1 servicesU.K.

(1)OFCOM must prepare and publish a code containing standards set by them for the content of programmes to be included in Tier 1 services.

(2)The standards must be such as appear to OFCOM to be best calculated to secure the following objectives (“the standards objectives”)—

(a)that persons under the age of 18 are protected;

(b)that material likely to encourage or incite the commission of crime or to lead to disorder is not included in Tier 1 services;

(c)that news included in those services is presented with due impartiality;

(d)that news included in those services is reported with due accuracy;

(e)that the impartiality requirements described in section 368HG are met;

(f)that generally accepted standards are applied to the contents of those services so as to provide adequate protection for members of the public from the inclusion of offensive and harmful material;

(g)that the proper degree of responsibility is exercised with respect to the content of religious programmes included in those services.

(3)The standards included in the code to secure the objective described in subsection (2)(g) must, in particular, contain provision designed to secure that religious programmes do not involve—

(a)any improper exploitation of susceptibilities of the audience for such a programme, or

(b)any abusive treatment of the religious views and beliefs of those belonging to a particular religion or religious denomination.

(4)OFCOM may fulfil their duty to publish the code in such ways as OFCOM consider likely to bring the code to the attention of persons who are likely to be affected by it.

(5)OFCOM—

(a)must keep the code under review,

(b)may from time to time revise the code, and

(c)where they do so, must publish the code as revised.

(6)References in this Part to a code under this section are to be read, in relation to times after a revised code is published, as references to the code as revised.

(7)In this section—

  • “news” means news in whatever form it is included in a service;

  • “programme” does not include an advertisement.

368HGTier 1 standards code: special impartiality requirementsU.K.

(1)The impartiality requirements referred to in section 368HF(2)(e) are—

(a)the exclusion from programmes included in any Tier 1 services of all expressions of the views or opinions of the person providing that service on—

(i)matters of political or industrial controversy, or

(ii)matters relating to current public policy;

(b)the preservation of due impartiality on the part of the person providing the service as respects those matters.

(2)Subsection (1)(a) does not require the exclusion of expressions of views or opinions relating to the provision of on-demand programme services or non-UK on-demand programme services.

(3)A code under section 368HF must make provision about the application of the requirement in subsection (1)(b), including provision about the ways in which the requirement may be met.

368HHTier 1 standards code: matters to be taken into accountU.K.

(1)In preparing or revising a code under section 368HF, OFCOM must, in particular and to such extent as appears to them to be relevant to securing the standards objectives, have regard to each of the matters set out in subsection (2).

(2)Those matters are—

(a)the likely expectation of potential audiences as to the nature of the content of programmes included in particular Tier 1 services;

(b)the degree of harm or offence likely to be caused by the inclusion of any particular sort of content, whether in programmes generally or in particular kinds of programmes;

(c)the age of the content of particular programmes or particular kinds of programmes included in Tier 1 services;

(d)the extent to which, and the ways in which, information about the nature of the content of particular kinds of programmes or of particular programmes can be given in a way that enables individuals to make choices about whether they (or others for whom they have responsibility) view or continue to view that content;

(e)the likely effect of consideration being required in order to view a particular Tier 1 service or particular programmes included in a Tier 1 service;

(f)the length of time for which particular programmes are included in Tier 1 services;

(g)the desirability of maintaining the independence of editorial control over programme content.

(3)In preparing or revising a code under section 368HF, OFCOM must take account of such of the international obligations of the United Kingdom as the Secretary of State may notify to them for the purposes of this section.

(4)The Secretary of State may by regulations amend the list of matters in subsection (2).

(5)Before making regulations under subsection (4), the Secretary of State must consult OFCOM.

(6)A statutory instrument containing regulations under subsection (4) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

368HITier 1 standards code: procedural requirementsU.K.

(1)Before publishing a code under section 368HF, OFCOM must consult—

(a)persons appearing to OFCOM to represent the interests of potential audiences of Tier 1 services;

(b)such persons providing on-demand programme services or non-UK on-demand programme services as OFCOM think fit; and

(c)such other persons as appear to OFCOM to have an interest in the content of the code.

(2)For the purposes of the consultation, OFCOM must publish a draft of the code.

(3)After considering any views expressed by those persons, OFCOM may—

(a)publish the code in the terms of the draft published for the purposes of the consultation, or

(b)modify the draft and publish the code in the terms of the draft as modified.

(4)Subsections (1) to (3) apply to a revision of a code under section 368HF as they apply to a code.

Duties of Tier 1 providers as regards Tier 1 standards codeU.K.

368HJDuties of Tier 1 providers to comply with Tier 1 standards codeU.K.

(1)A person who provides a Tier 1 service must observe the code for the time being published under section 368HF.

(2)The duty under subsection (1) applies only on and after the end of the grace period that applies in relation to the service.

(3)In subsection (2), “the grace period”, in relation to a Tier 1 service, means the period of 12 months beginning with whichever is the later of the following—

(a)the day on which the on-demand programme service, or non-UK on-demand programme service, became a Tier 1 service;

(b)the day when the first code under section 368HF was published.

(4)Where regulations under section 368HB(1) provide that an on-demand programme service, or a non-UK on-demand programme service, specified in the regulations is a Tier 1 service, the regulations may also provide—

(a)that subsections (2) and (3) do not apply in relation to the service, or

(b)that those subsections apply in relation to the service as if the reference in subsection (3) to 12 months were a reference to such lesser period as may be specified in the regulations.

Complaints relating to Tier 1 standards codeU.K.

368HKComplaints relating to Tier 1 standards codeU.K.

(1)OFCOM must establish and maintain procedures for the handling and resolution of complaints that a person who provides a Tier 1 service is failing, or has failed, to comply with section 368HJ(1).

(2)A person who provides a Tier 1 service must establish and maintain procedures for the handling and resolution of complaints that the person is failing, or has failed, to comply with section 368HJ(1).

Accessibility code for Tier 1 servicesU.K.

368HLAccessibility code for Tier 1 servicesU.K.

(1)OFCOM must prepare and publish a code imposing requirements on providers of Tier 1 services for the purpose of ensuring that such services are accessible to people with disabilities, including, in particular, people with disabilities affecting their sight or hearing, or both.

(2)The code must include provision requiring providers of Tier 1 services to report annually to OFCOM about—

(a)the accessibility of their services to people with disabilities;

(b)the steps taken to secure the quality and usability of the means by which their services are made accessible to people with disabilities.

(3)The code must include provision requiring every provider of a Tier 1 service to ensure that adequate information about the assistance for disabled people that is provided in relation to that service is made available to those who are likely to want to make use of it.

(4)The code must include provision requiring the provider of a Tier 1 service, from the second anniversary of the relevant date, to secure that, in the 12 month period beginning with that second anniversary and in the succeeding 12 month period—

(a)at least 40 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by subtitling;

(b)at least 5 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by audio-description for the blind; and

(c)at least 2.5 per cent of the total catalogue hours of that service for that period consists of programmes that are presented in, or translated into, sign language.

(5)The code must include provision requiring the provider of a Tier 1 service, from the fourth anniversary of the relevant date, to secure that, in the 12 month period beginning with the fourth anniversary and in each succeeding 12 month period—

(a)at least 80 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by subtitling;

(b)at least 10 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by audio-description for the blind; and

(c)at least 5 per cent of the total catalogue hours of that service for that period consists of programmes that are presented in, or translated into, sign language.

(6)A reference in any paragraph of subsections (4) and (5) to the total catalogue hours of a Tier 1 service for a period of time is a reference to the combined duration of the programmes available from the service within that period, other than those programmes excluded under subsection (7) in relation to the requirement in that paragraph.

(7)The code must set out, in relation to each of the paragraphs of subsections (4) and (5), the descriptions of programmes that are excluded for the purposes of the requirement in that paragraph.

This subsection does not restrict the provision which may be made under subsection (8).

(8)The code may include provision under which Tier 1 services specified in the code are wholly or partly exempted from some or all of the requirements set out in subsections (4) and (5).

(9)Provision in the code partly exempting a Tier 1 service may, in particular, provide for the exemption to apply in relation to particular methods, or particular descriptions of method, by which that service is available to members of the public.

(10)Before including in the code such provision as is described in subsection (7) or (8) in relation to a Tier 1 service, OFCOM must have regard, in particular, to—

(a)the extent of the benefit which would be conferred if the provider of the service were to comply with the requirements set out in subsections (4) and (5);

(b)the size of the audience for the service;

(c)the number of persons who would be likely to benefit from compliance with those requirements and the extent of the likely benefit for each of those persons;

(d)the extent to which persons accessing the service are resident in places outside the United Kingdom;

(e)the technical difficulty of compliance with those requirements; and

(f)the cost, in the context of the matters mentioned in paragraphs (a) to (e), of compliance with those requirements.

(11)The requirements that may be imposed by the code include, in particular—

(a)requirements as to lesser levels of assistance that apply before the date on which the requirements set out in subsection (4) or (5) fall to be complied with;

(b)requirements as to the provision of assistance for disabled people, or a description of disabled people, in the case of a Tier 1 service that is exempted or partly exempted.

(12)The code must also give guidance as to—

(a)the extent to which Tier 1 services should promote the understanding and enjoyment by people with disabilities (in particular, people with disabilities affecting their sight or hearing, or both) of the programmes to be included in Tier 1 services; and

(b)the means by which such understanding and enjoyment should be promoted.

(13)OFCOM—

(a)must keep the code under review,

(b)may from time to time revise the code, and

(c)where they do so, must publish the code as revised.

(14)OFCOM must publish the code, and every revision of it, in such manner as they consider appropriate, having regard to the need to make the code or revision accessible to people with disabilities, including, in particular, people with disabilities affecting their sight or hearing, or both.

(15)References in this Part to a code under this section are to be read, in relation to times after a revised code is published, as references to the code as revised.

(16)In this section, “programme” does not include an advertisement.

368HMMeaning of “relevant date”U.K.

(1)The relevant date, in relation to a Tier 1 service, is the later of—

(a)the day on which the on-demand programme service, or non-UK on-demand programme service, became a Tier 1 service, and

(b)the day on which the first code under section 368HL was published.

(2)OFCOM may determine that a service provided by a person is to be treated for the purposes of section 368HL and this section as a continuation of a service previously provided by that person.

368HNPower to modify requirements in section 368HLU.K.

(1)Where it appears to the Secretary of State, in the case of Tier 1 services of a particular description, that the requirement specified in any paragraph of section 368HL(4) has been or is likely to be fulfilled in their case before the anniversary specified in section 368HL(4), the Secretary of State may by regulations modify section 368HL so as to do one or both of the following—

(a)increase the percentage so specified in relation to services of that description;

(b)substitute the first anniversary for the anniversary specified in section 368HL(4) in the case of services of that description.

(2)The Secretary of State may by regulations modify section 368HL so as to do one or both of the following—

(a)substitute a later anniversary for the anniversary specified in section 368HL(5);

(b)substitute a higher percentage for the percentage for the time being specified in any paragraph of section 368HL(5).

(3)The provision that may be made by regulations under this section includes—

(a)modifications for requiring the code to set out additional requirements to be fulfilled once the requirements previously required to be set out in the code have been fulfilled; and

(b)savings for the requirements previously set out in the code.

(4)Before making regulations under this section the Secretary of State must consult OFCOM.

(5)A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

368HOTier 1 accessibility code: procedural requirementsU.K.

(1)Before publishing a code or a revised code under section 368HL, OFCOM must consult—

(a)such persons appearing to OFCOM to represent the interests of people with disabilities as OFCOM think fit;

(b)such persons providing on-demand programme services or non-UK on-demand programme services as OFCOM think fit; and

(c)such other persons as appear to OFCOM to have an interest in the content of the code.

(2)For the purposes of the consultation, OFCOM must publish a draft of the code.

368HPDuty to comply with Tier 1 accessibility codeU.K.

A provider of a Tier 1 service must comply with such of the requirements of the code under section 368HL as apply to that provider.

Reports to Secretary of StateU.K.

368HQReports to Secretary of StateU.K.

OFCOM may from time to time report to the Secretary of State on any issues which—

(a)have been identified by them in the course of carrying out their functions in relation to Tier 1 services, and

(b)appear to them to raise questions of general policy about the regulation of those services.

Application of Chapter 3U.K.

368HRApplication of Chapter 3U.K.

The duties of providers of Tier 1 services under or by virtue of this Chapter apply in relation to those services only so far as they are made available for use by members of the public in the United Kingdom.]

[F83Chapter 4U.K.Enforcement: general]

Textual Amendments

368I[F84Enforcement of service providers’ principal duties] U.K.

(1)Where the appropriate regulatory authority determine that a provider of an on-demand programme service is contravening or has contravened [F85section 368CB or] section 368D [F86, 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.

[F87(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) [F88or (1A)] unless there are reasonable grounds for believing that a contravention of [F89section 368CB or] section 368D [F90or (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) [F91or (1A)] and imposes requirements on the provider to take such steps for complying with [F92section 368CB or] section 368D [F93or (as the case may be) section 368HC, 368HJ(1), 368HK(2) or 368HP] and for remedying the consequences of the contravention F94... 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

(c)for any other appropriate remedy or relief.

[F95(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.

[F96(10)A financial penalty may not be imposed on a provider of an on-demand programme service [F97, or a non-UK on-demand programme service that is a Tier 1 service,] under subsection (1) [F98, (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.]

Textual Amendments

[F99368IAEnforcement of section 368E(4)U.K.

(1)Where the appropriate regulatory authority determine that a provider of an on-demand programme service [F100, or a non-UK on-demand programme service that is a Tier 1 service,] 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, the authority 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.

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

(3)An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes requirements on the provider to take such steps for complying with section 368E(4) and for remedying the failure 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)take a specified measure that the appropriate regulatory authority consider to be appropriate for the purpose mentioned in section 368E(4);

(e)make specified changes to the way in which a provider implements a measure it has taken for that purpose;

(f)show an advertisement only with specified modifications;

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

(h)publish a statement of the findings of the appropriate regulatory authority in the form and place and for the time period 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 person is required by an enforcement notification to publish a correction or a statement of findings, the person 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 person 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

(c)for any other appropriate remedy or relief.

[F101(8A)Subsection (8) applies whether or not the person is in the United Kingdom.]

(9)If a person 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 person in accordance with section 368J.]

Textual Amendments

Financial penaltiesU.K.

368JFinancial penaltiesU.K.

(1)The amount of a penalty imposed on a provider under section [F102368BB]F103...[F104, 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 [F105or failure] in respect of which it is imposed.

[F106(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) [F107or (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 [F108or 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 [F109or 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.

Textual Amendments

F108Words in s. 368J(3)(a) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 38(d) (with Pt. 7)

Suspension or restriction of serviceU.K.

368KSuspension or restriction of service for contraventions [F110or failures] U.K.

(1)The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service [F111or 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 [F112368BA [F113, 368CB] or ] 368D F114... [F115, 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];

[F116(b)that the imposition of one or more financial penalties or enforcement notifications under section 368BBF117..., 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 [F118or failure].

[F119(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) [F120or (1A)];

(b)state the reasons why they are satisfied as mentioned in subsection (1) [F121or (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 [F122or failure] within subsection (1)(a) [F123or (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 [F124or 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) [F125or (1A)(c)]—

(a)a direction that the entitlement of the provider to provide an on-demand programme service [F126or 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.

Textual Amendments

F110Words in s. 368K heading inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 39(a) (with Pt. 7)

368LSuspension or restriction of service for inciting crime or disorderU.K.

(1)The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service [F127or a non-UK on-demand programme service that is a Tier 1 service] if they are satisfied—

[F128(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 [F129, 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

(c)that the contravention [F130or failure] is such as to justify the giving of a direction under this section.

(2)A notice under this subsection must—

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

[F131(b)give details about the matters which, in their opinion, constitute the contravention or failure in question;]

(c)specify the effect of the notice in accordance with subsection (3);

(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 [F132or 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 [F133or 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.

Textual Amendments

368MSupplementary provision about directionsU.K.

(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 [F134, or to any non-UK on-demand programme service that is a Tier 1 service,] provided or to be provided by the provider.

[F135(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

(c)to such extent and in relation to such services as they may determine.

Textual Amendments

368NEnforcement of directions under section 368K or 368LU.K.

(1)A person (“P”) is guilty of an offence if P provides an on-demand programme service [F136or 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.

Textual Amendments

[F137Chapter 5U.K.Supplementary]

Textual Amendments

[F138FeesU.K.

Textual Amendments

F138 S. 368NA and cross-heading inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010 (S.I. 2010/419), regs. 1(1), 9 (with reg. 13)

368NAFeesU.K.

(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 [F139or 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

(c)the costs to them of carrying out the relevant functions during that year.

(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.

[F140(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,

(c)the person gave a notification under section 368HC(4) that the person had ceased to provide the Tier 1 service, and

(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

(c)the person gave a notification under section 368HC(4) that the person had ceased to provide the Tier 1 service.]

(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.]

Textual Amendments

InformationU.K.

[F141368OPower to require informationU.K.

(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,

(c)specify the form and manner in which the information must be provided, and

(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.

Textual Amendments

F141 Ss. 368O, 368OZA substituted for s. 368O (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 11(1); S.I. 2024/858, reg. 2(1)(z)

368OZAInformation powers: supplementaryU.K.

(1)Any power to require the provision of information under section 368HB, 368O or 368OB includes power to require the provision of information held outside the United Kingdom.

(2)In the following provisions of this section, a “Part 4A information duty” means—

(a)the duty under section 368HB(12);

(b)the duty under section 368O(10);

(c)the duty under section 368OB(9).

(3)Sections 368I and 368K apply in relation to a failure by a provider of an on-demand programme service, or a non-UK on-demand programme service that is a Tier 1 service, to comply with a Part 4A information duty as if that failure were a contravention of section 368D.

(4)Section 368I applies in relation to a failure by a person other than one described in subsection (3) to comply with a Part 4A information duty falling within subsection (2)(a) or (b) as if that failure were a contravention of section 368D.

(5)Where section 368I applies in accordance with subsection (4)—

(a)references in section 368I or 368J to a provider of an on-demand programme service are to be read as references to the person who has failed to comply with the Part 4A information duty, and

(b)section 368J(1) applies as if, for the words “5 per cent. of the provider’s applicable qualifying revenue or £250,000, whichever is the greater amount”, there were substituted “£250,000”.]

Textual Amendments

F141 Ss. 368O, 368OZA substituted for s. 368O (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 11(1); S.I. 2024/858, reg. 2(1)(z)

[F142368OACo-operation with EEA StatesU.K.

OFCOM may co-operate with EEA States which are subject to the Audiovisual Media Services Directive, and with the national regulatory authorities of such EEA states, for the following purposes—

(a)facilitating the carrying out by OFCOM of any of their functions under this Part, or

(b)facilitating the carrying out by the national regulatory authorities of the EEA states of any of their functions in relation to on-demand programme services under the Directive as it has effect in EU law as amended from time to time.]

Textual Amendments

[F143Audience protection reviews etcU.K.

Textual Amendments

F143S. 368OB and cross-heading inserted (23.8.2024) by Media Act 2024 (c. 15), ss. 38(1), 55(3)(d); S.I. 2024/858, reg. 2(1)(p)

368OBAudience protection reviews etcU.K.

(1)As soon as practicable after this section comes into force, OFCOM must carry out a review of audience protection measures in use by providers of—

(a)on-demand programme services, or

(b)non-UK on-demand programme services that are Tier 1 services.

(2)The scope of that review is to consider whether the audience protection measures are adequate for the purpose of assisting the providers to comply with the duties imposed on them by or under this Act for the protection of audiences from harm.

(3)After the review under subsection (1), OFCOM may carry out further reviews for the same purpose at such times as appear appropriate to OFCOM.

(4)“Audience protection measures” are measures that are capable of assisting in protecting audiences from harm, the following being examples—

(a)age rating or other classification systems;

(b)content warnings;

(c)parental controls;

(d)age assurance measures.

(5)OFCOM may request any provider described in subsection (1) to provide OFCOM with information about its audience protection measures for the purposes of a review under subsection (1) or (3).

(6)OFCOM may also request any provider described in subsection (1) to provide OFCOM with information about its audience protection measures where, in consequence of a review or anything else done in the exercise of their functions, they are concerned that the measures in use by that provider are or might be inadequate.

(7)A request under subsection (5) or (6) must specify or describe the information to be provided and may also—

(a)specify a period of time within which the information must be provided;

(b)specify the form and manner in which the information must be provided.

(8)A request under subsection (6) may specify that information is to be provided at intervals specified by OFCOM.

(9)A provider described in subsection (1) must comply with a request under subsection (5) or (6).

(10)OFCOM may publish any information provided to them under this section.]

Application and interpretation of Part 4AU.K.

368PApplication of Part 4A in relation to the BBCU.K.

[F144(A1)Section 368BA (advance notification) does not apply in relation to an on-demand programme service provided or to be provided by the BBC.]

[F145(1)The following provisions do not apply to the BBC—

(a)[F146section 368D(3)(za) and (zb) (duties of providers of on-demand programme services);]

(b)section 368F (advertising);

(c)section 368G (sponsorship);

(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 [F147368C(4) (codes of conduct: food and beverage promotion and children’s programmes)];

F148(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F148(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F149(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

F150(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Textual Amendments

F151368QApplication of Part 4A in relation to the Welsh AuthorityU.K.

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

Textual Amendments

[F152368QAService of notices by OFCOMU.K.

Section 362AZ10 (notices) applies in relation to a notice that may or must be given by OFCOM under any provision of this Part as it applies in relation to a notice that may or must be given by them under any provision of Part 3A.]

Textual Amendments

368RInterpretation of Part 4AU.K.

(1)In this Part—

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

  • [F153“children’s programme” means a programme made—

    (a)

    for a television programme service or for an on-demand programme service [F154or 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;]

  • [F155“electronic cigarette” means a product that—

    (a)

    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), and

    (b)

    is 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—

    (a)

    contains a nicotine-containing liquid, which can be used to refill an electronic cigarette, and

    (b)

    is 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;]

  • [F156“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 [F157or 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 [F158or 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 [F159or 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 [F160S4C] does not include its provision by an S4C company;

and, accordingly, control that is or is capable of being exercised by the BBC or [F160S4C] 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.]

Textual Amendments

Yn ôl i’r brig

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