PART 7OFCOM's powers and duties in relation to regulated services
CHAPTER 6Enforcement powers
Business disruption measures
I1I2144Service restriction orders
1
OFCOM may apply to the court for an order under this section (a “service restriction order”) in relation to a regulated service where they consider that—
a
the grounds in subsection (3) apply in relation to the service, or
b
in the case of a Part 3 service, the grounds in subsection (4) apply in relation to the service.
2
A service restriction order is an order imposing requirements on one or more persons who provide an ancillary service (whether from within or outside the United Kingdom) in relation to a regulated service (see subsection (11)).
3
The grounds mentioned in subsection (1)(a) are that—
a
the provider of the regulated service has failed to comply with an enforceable requirement that applies in relation to the regulated service,
b
the failure is continuing, and
c
any of the following applies—
i
the provider has failed to comply with a requirement imposed by a confirmation decision that is of a kind described in section 133(1) relating to the failure;
ii
the provider has failed to pay a penalty imposed by a confirmation decision relating to the failure (and the confirmation decision did not impose any requirements of a kind described in section 133(1));
iii
the provider would be likely to fail to comply with requirements imposed by a confirmation decision if given;
iv
the circumstances of the failure or the risks of harm to individuals in the United Kingdom are such that it is appropriate to make the application without having given a provisional notice of contravention, without having given a confirmation decision, or (having given a confirmation decision imposing requirements) without waiting to ascertain compliance with those requirements.
4
The grounds mentioned in subsection (1)(b) are that—
a
the provider of the Part 3 service has failed to comply with a notice under section 121(1) that relates to the service (notices to deal with terrorism content and CSEA content), and
b
the failure is continuing.
5
An application by OFCOM for a service restriction order must—
a
specify the regulated service in relation to which the application is made (“the relevant service”),
b
specify the provider of that service (“the non-compliant provider”),
c
specify the grounds on which the application is based, and contain evidence about those grounds,
d
specify the persons on whom (in OFCOM’s opinion) the requirements of the order should be imposed,
e
contain evidence as to why OFCOM consider that the persons mentioned in paragraph (d) provide an ancillary service in relation to the relevant service, and specify any such ancillary service provided,
f
specify the requirements which OFCOM consider that the order should impose on such persons, and
g
in the case of an application made without notice having been given to the non-compliant provider, or to the persons mentioned in paragraph (d), state why no notice has been given.
6
The court may make a service restriction order imposing requirements on a person in relation to the relevant service if the court is satisfied—
b
that the person provides an ancillary service in relation to the relevant service,
c
that it is appropriate to make the order for the purpose of preventing harm to individuals in the United Kingdom, and the order is proportionate to the risk of such harm,
d
in the case of an application made on the ground in subsection (3)(c)(iii) or (iv), that it is appropriate to make the order before a provisional notice of contravention or confirmation decision has been given, or before compliance with requirements imposed by a confirmation decision has been ascertained (as the case may be), and
e
if no notice of the application has been given to the non-compliant provider, or to the persons on whom requirements are being imposed, that it is appropriate to make the order without notice.
7
When considering whether to make a service restriction order in relation to the relevant service, and when considering what provision it should contain, the court must take into account (among other things) the rights and obligations of all relevant parties, including those of—
a
the non-compliant provider,
b
the person or persons on whom the court is considering imposing the requirements, and
c
United Kingdom users of the relevant service.
8
A service restriction order made in relation to the relevant service must—
a
identify the non-compliant provider,
b
identify the persons on whom the requirements are imposed, and any ancillary service to which the requirements relate,
c
require such persons to take the steps specified in the order, or to put in place arrangements, that have the effect of withdrawing the ancillary service to the extent that it relates to the relevant service (or part of it), or preventing the ancillary service from promoting or displaying content that relates to the relevant service (or part of it) in any way,
d
specify the date by which the requirements in the order must be complied with, and
e
specify the date on which the order expires, or the period for which the order has effect.
9
The steps that may be specified or arrangements that may be required to be put in place—
a
include steps or arrangements that will or may require the termination of an agreement (whether or not made before the coming into force of this section), or the prohibition of the performance of such an agreement, and
b
are limited, so far as that is possible, to steps or arrangements relating to the operation of the relevant service as it affects United Kingdom users.
10
OFCOM must inform the Secretary of State as soon as reasonably practicable after a service restriction order has been made.
11
For the purposes of this section, a service is an “ancillary service” in relation to a regulated service if the service facilitates the provision of the regulated service (or part of it), whether directly or indirectly, or displays or promotes content relating to the regulated service (or to part of it).
12
Examples of ancillary services include—
a
services, provided (directly or indirectly) in the course of a business, which enable funds to be transferred in relation to a regulated service,
b
search engines which generate search results displaying or promoting content relating to a regulated service,
c
user-to-user services which make content relating to a regulated service available to users, and
d
services which use technology to facilitate the display of advertising on a regulated service (for example, an ad server or an ad network).
13
In this section “the court” means—
a
in England and Wales, the High Court or the county court,
b
in Scotland, the Court of Session or a sheriff, and
c
in Northern Ireland, the High Court or a county court.