Law

Communications Act 2003

United Kingdom · statute

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In force since 2026-04-06, as the publisher states.

Copy read on 2026-11-08. The page it was read from

Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.

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Contents: 729 provisions

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729 provisions

368HP Duty to comply with Tier 1 accessibility code

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.

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368HQ Reports to Secretary of State

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.

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368HR Application of Chapter 3

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.

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368I Enforcement of service providers’ principal duties

(1) Where the appropriate regulatory authority determine that a provider of an on-demand programme service is contravening or has contravened section 368CB or section 368D , 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. (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) or (1A) unless there are reasonable grounds for believing that a contravention of section 368CB or section 368D or (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) or (1A) and imposes requirements on the provider to take such steps for complying with section 368CB or section 368D or (as the case may be) section 368HC, 368HJ(1), 368HK(2) or 368HP and for remedying the consequences of the contravention ... 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. (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. (10) A financial penalty may not be imposed on a provider of an on-demand programme service , or a non-UK on-demand programme service that is a Tier 1 service, under subsection (1) , (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.

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368IA Enforcement of section 368E(4)

(1) Where the appropriate regulatory authority determine that a provider of an on-demand programme service , 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. (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.

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368J Financial penalties

(1) The amount of a penalty imposed on a provider under section 368BB ... , 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 or failure in respect of which it is imposed. (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) or (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 or 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 or 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.

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368K Suspension or restriction of service for contraventions or failures

(1) The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service or 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 368BA , 368CB or 368D ... , 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; (b) that the imposition of one or more financial penalties or enforcement notifications under section 368BB..., 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 or failure. (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) or (1A); (b) state the reasons why they are satisfied as mentioned in subsection (1) or (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 or failure within subsection (1)(a) or (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 or 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) or (1A)(c)— (a) a direction that the entitlement of the provider to provide an on-demand programme service or 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.

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368L Suspension or restriction of service for inciting crime or disorder

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

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368M Supplementary provision about directions

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

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368N Enforcement of directions under section 368K or 368L

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

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368NA Fees

(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 or 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. (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.

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368O Power to require information

(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.

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368OZA Information powers: supplementary

(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”.

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368OA Co-operation with EEA States

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.

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368OB Audience protection reviews etc

(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.

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368P Application of Part 4A in relation to the BBC

(A1) Section 368BA (advance notification) does not apply in relation to an on-demand programme service provided or to be provided by the BBC. (1) The following provisions do not apply to the BBC— (a) section 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 368C(4) (codes of conduct: food and beverage promotion and children’s programmes); (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) section 368K (suspension or restriction of service for contraventions); (f) section 368L (suspension or restriction of service for inciting crime or disorder); (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Paragraph 2(2)(b) of Schedule 12 includes provision imposing obligations on the BBC in relation to on-demand programme services.

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368Q Application of Part 4A in relation to the Welsh Authority

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368QA Service of notices by OFCOM

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.

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368R Interpretation of Part 4A

(1) In this Part— “appropriate regulatory authority” is to be construed in accordance with 368B; “children’s programme” means a programme made— for a television programme service or for an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service, and for viewing primarily by persons under the age of sixteen; “electronic cigarette” means a product that— 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 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— contains a nicotine-containing liquid, which can be used to refill an electronic cigarette, and 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; “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 or 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 or 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 or 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 S4C does not include its provision by an S4C company; and, accordingly, control that is or is capable of being exercised by the BBC or S4C 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.

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368Z14 Prohibition of paid-for advertising of less healthy food and drink

(1) From the beginning of 5 January 2026, a person must not pay for advertisements for an identifiable less healthy food or drink product to be placed on the internet. (2) Subsection (1) does not apply where the person paying is, at the time when the payment is made, a food or drink SME. (3) Subsection (1) does not apply— (a) in relation to advertisements which are directed solely at persons who are engaged in, or employed by, a business which involves or is associated with the manufacture or sale of food or drink, (b) in relation to advertisements included in on-demand programme services or in non-UK on-demand programme services that are Tier 1 services (as to which, see sections 368FA and 368HE(2)(e)), (c) in relation to advertisements included in services connected to regulated radio services, or (d) in relation to advertisements which are not intended to be accessed principally by persons in any part of the United Kingdom. (4) The Secretary of State may by regulations provide for further exemptions from the prohibition imposed by subsection (1). (5) For the purposes of this section— (a) paying includes providing any consideration (monetary or non-monetary); (b) “placed” includes continues to be placed; (c) paying for advertisements to be placed on the internet includes paying under a sponsorship agreement as result of which advertisements are placed on the internet; (d) 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; (e) 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; (f) “the relevant guidance” is the guidance entitled “Nutrient Profiling Technical Guidance” published by the Department of Health on 1 January 2011; (g) “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; (h) “services connected to regulated radio services” has the meaning given by regulations made by the Secretary of State. (6) Regulations under subsection (5)(g) 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). (7) The Secretary of State may, before the date specified in subsection (1)— (a) amend that subsection so as to substitute a later date for the date that is for the time being specified there, and (b) make corresponding amendments to the references to that date in subsections (11) and (12). (8) The Secretary of State may by regulations amend this section to change the meaning of “the relevant guidance”. (9) Before making regulations under subsection (4) or (8), the Secretary of State must consult such persons as the Secretary of State considers appropriate. (10) A statutory instrument containing regulations under subsection (8) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. (11) A person is to be treated as having contravened subsection (1) if— (a) at any time on or after 1 August 2021 but before 5 January 2026, the person made a payment for advertisements to be placed on the internet on or after 5 January 2026, and (b) if the payment had been made on 5 January 2026, the person would have contravened subsection (1). (12) Subsection (11) does not apply if the person— (a) has put in place arrangements to ensure that they are entitled to require that the advertisements are not placed on the internet on or after 5 January 2026, and (b) uses all reasonable endeavours to ensure that the advertisements are not so placed.

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368Z15 Enforcement

(1) Where the appropriate regulatory authority determine that a person is contravening or has contravened section 368Z14 they may do one or both of the following— (a) give the person an enforcement notification; (b) impose a financial penalty on the person in accordance with section 368Z16. (2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless— (a) there are reasonable grounds for believing that a contravention of section 368Z14 is occurring or has occurred, and (b) they have allowed the person an opportunity to make representations about that apparent contravention. (3) An enforcement notification is a notification which— (a) specifies the determination made as mentioned in subsection (1), (b) imposes requirements on the person to take such steps for complying with section 368Z14 and for remedying the consequences of the contravention as may be specified in the notification, (c) fixes a reasonable period for the taking of those steps, and (d) sets out the reasons for the appropriate regulatory authority’s decision to give the enforcement notification. (4) The requirements specified in an enforcement notification may include requirements to do one or more of the following— (a) instruct or request specified persons to remove specified advertisements from the internet; (b) arrange for specified advertisements to be modified in specified ways. (5) A person to whom an enforcement notification is given must comply with it. (6) The duty under subsection (5) 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. (7) If a person to whom an enforcement notification has been given does not comply with it, the appropriate regulatory authority may impose a financial penalty on that person in accordance with section 368Z16.

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368Z16 Financial penalties

(1) The amount of a penalty imposed on a person under section 368Z15 is to be such amount not exceeding the maximum penalty as the appropriate regulatory authority determine to be— (a) appropriate, and (b) proportionate to the contravention in respect of which it is imposed. (2) The maximum penalty is— (a) in a case in which the person carries on a relevant business, an amount not exceeding the greater of— (i) 5% of the turnover of the person’s relevant business for the relevant period, and (ii) £250,000; (b) in any other case, £250,000. (3) For the purposes of this section— (a) a person’s “relevant business” is so much of any business carried on by the person as involves or is associated with the manufacture or sale of less healthy food or drink products; (b) “relevant period”, in relation to a person’s relevant business, means— (i) except in a case falling within sub-paragraph (ii) or (iii), the period of one year ending with the 31 March before the time at which the penalty is imposed; (ii) in the case of a person who at the time at which the penalty is imposed has been carrying on that business for a period of less than a year, the period, ending with that time, during which the person has been carrying it on; (iii) in the case of a person who at the time at which the penalty is imposed has ceased to carry on that business, the period of one year ending with the time when the person ceased to carry it on; (c) the amount of the turnover of a person’s relevant business for the relevant period is to be calculated by the appropriate regulatory authority in accordance with the following sub-paragraphs— (i) the amount is to be calculated in conformity with accounting practices and principles which are generally accepted in the United Kingdom; (ii) the amount is limited to the amounts derived by the person from the relevant business after deduction of sales rebates, value added tax and other taxes directly related to turnover; (iii) where the person’s relevant business consists of two or more undertakings that each prepare accounts, the amount is to be calculated by adding together the turnover of each, save that no account is to be taken of any turnover resulting from the supply of goods or the provision of services between them. (4) In determining the amount of a penalty under subsection (1) 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). (5) A financial penalty imposed under this section, 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. (6) Where a financial penalty is imposed under this section in respect of matters appearing to OFCOM to have a connection with Northern Ireland and no connection with the rest of the United Kingdom, the penalty must be paid into the Consolidated Fund of Northern Ireland. (7) In any other case, a financial penalty imposed under this section is to be paid into the Consolidated Fund of the United Kingdom.

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368Z17 Power to demand information

(1) The appropriate regulatory authority may give a person a notice demanding information that the authority require for the purpose of carrying out their functions under this Part. (2) The notice may relate to any information that the person appears to have or be able to generate. (3) A notice under this section must— (a) describe the required information, (b) fix a reasonable period within which the information is to be provided, and (c) set out the appropriate regulatory authority’s reasons for requiring it. (4) A notice under this section may specify the manner in which the information is to be provided. (5) The appropriate regulatory authority may not require the provision of information under this section unless they have given the person from whom it is required an opportunity of making representations to them about the matters appearing to them to provide grounds for making the request. (6) Section 368Z15 applies in relation to a failure to comply with a demand for information imposed under this section as if that failure were a contravention of section 368Z14. (7) In this section “information” includes copies of advertisements.

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368Z18 Guidance

(1) 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. (2) The appropriate regulatory authority must consult the Secretary of State before drawing up or revising the guidance. (3) The appropriate regulatory authority must publish the guidance and any revised guidance in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

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368Z19 The appropriate regulatory authority

(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 subsection (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 (including financial 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 advertisements 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; (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 (taking into account any financial assistance that OFCOM intends to provide under subsection (4)), (d) is sufficiently independent of persons who carry on business that involves or is associated with the manufacture or sale of less healthy food or drink products, 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 provide 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 provide information to OFCOM for use by OFCOM in connection with any of their functions under this Part; (c) OFCOM may provide information to a designated body for use by that body in connection with any of its functions 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.

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368Z20 Power to amend this Part to extend prohibition

(1) The Secretary of State may by regulations amend this Part for the purpose of prohibiting persons from doing either or both of the following (so far as not already prohibited)— (a) placing on the internet advertisements for an identifiable less healthy food or drink product; (b) making arrangements for advertisements for an identifiable less healthy food or drink product to be placed on the internet. (2) For the purposes of subsection (1)— (a) “placing” includes leaving in place; (b) “placed” includes continues to be placed. (3) The provision which may be made by regulations under subsection (1) by virtue of section 402(3)(c) includes provision repealing, revoking or amending provision made by or under any of the following whenever passed or made— (a) an Act; (b) an Act of the Scottish Parliament; (c) a Measure or Act of Senedd Cymru; (d) Northern Ireland legislation. (4) Before making regulations under subsection (1), the Secretary of State must consult such persons as the Secretary of State considers appropriate. (5) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

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368Z21 Interpretation

In this Part— “appropriate regulatory authority” is to be construed in accordance with section 368Z19; “less healthy”, in relation to a food or drink product, has the meaning given by section 368Z14(5)(e).

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369 Matters in relation to which OFCOM have competition functions

(1) In this Chapter references to communications matters are references to any one or more of the following— (a) the provision of electronic communications networks; (b) the provision of electronic communications services; (c) the provision or making available of services or facilities which are provided or made available— (i) by means of, or in association with the provision (by the same person or another) of, an electronic communications network or electronic communications service; or (ii) for the purpose of facilitating the use of any such network or service (whether provided by the same person or another); (d) apparatus used for providing or making available anything mentioned in the preceding paragraphs; (e) broadcasting and related matters. (f) the provision of postal services. (2) The Secretary of State may by order make such amendments of subsection (1) as he may consider appropriate for the purpose of modifying the description of activities in respect of which any of the provisions of this Part— (a) confer functions on OFCOM under Part 1 of the Competition Act 1998 (c. 41) or relate to the carrying out by OFCOM of those functions; or (b) confer functions on OFCOM under Part 4 of the Enterprise Act 2002 (c. 40) or relate to the carrying out by OFCOM of those functions. (3) No order is to be made containing provision authorised by this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

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370 OFCOM’s functions under Part 4 of the Enterprise Act 2002

(1) The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the Competition and Markets Authority (referred to in this Part as “the CMA”) . (2) This subsection applies to the functions of the CMA under Part 4 of the Enterprise Act 2002 (market investigations) (other than sections 166 , 167C , 171 and 174E ) so far as those functions— (a) are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and (b) relate to commercial activities connected with communications matters. (3) So far as necessary for the purposes of, or in connection with, subsections (1) and (2)— (a) references in Part 4 of the Enterprise Act 2002 to the CMA (including references in provisions of that Act applied by that Part) shall be construed as including references to OFCOM (except in sections 166 , 167C, 171 and 174E and where the context otherwise requires); (b) references in that Part to the CMA carrying out functions under section 5 of the Enterprise Act 2002 are to be construed as including references to OFCOM exercising powers under section 1(3) of this Act to obtain, compile and keep under review information about matters relating to the carrying out of its functions. (3A) Section 130A of the Enterprise Act 2002 is to have effect in its application in relation to OFCOM by virtue of subsections (1) and (2)— (a) as if for subsection (1) of that section there were substituted— (1) Where the Office of Communications— (a) is proposing to fulfil its duties under section 3(1) of the Communications Act 2003 by obtaining, compiling and keeping under review information in relation to a matter for the purposes mentioned in subsection (2), and (b) considers that the matter is one in respect of which it would be appropriate for it to exercise its powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131, the Office of Communications must publish a notice under this section (referred to in this Part as a “market study notice”). , and (b) as if in subsection (2)(a) of that section, for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “commercial activities connected with communications matters (within the meaning given by section 369(1) of the Communications Act 2003)”. (4) In subsections (2) and (3A) the references to activities connected with communications matters, so far as they are references to activities connected with any apparatus falling within paragraph (d) of section 369(1), include a reference to— (a) the supply and export of any such apparatus; and (b) the production or acquisition of any such apparatus for supply or export. (5) Before the CMA or OFCOM first exercises in relation to any matter functions which are exercisable concurrently by virtue of this section, that person shall consult the other. (6) Neither the CMA nor OFCOM shall exercise in relation to any matter functions which are exercisable concurrently by virtue of this section if functions which are so exercisable have been exercised in relation to that matter by the other. (7) It shall be the duty of OFCOM, for the purpose of assisting a CMA group in carrying out an investigation on a market investigation reference made by OFCOM (under section 131 of the Enterprise Act 2002) by virtue of subsection (1), to give to the group — (a) any information which is in OFCOM’s possession and relates to matters falling within the scope of the investigation and— (i) is requested by the group for that purpose, or (ii) is information which, in OFCOM’s opinion, it would be appropriate for that purpose to give to the group without any such request; and (b) any other assistance which the group may require, and which it is within OFCOM’s power to give, in relation to any such matters, and the group , for the purposes of carrying out any such investigation, shall take into account any information given to it for that purpose under this subsection. (7A) In subsection (7) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013. (8) If any question arises as to whether, by virtue of this section, any functions fall to be, or are capable of being, carried out by OFCOM in relation to any particular case, that question shall be referred to and determined by the Secretary of State. (9) No objection shall be taken to anything done under Part 4 of the Enterprise Act 2002 (c. 40) by or in relation to OFCOM on the ground that it should have been done by or in relation to the CMA . (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (11) Subject to subsection (12), section 3 of this Act (general duties) and section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service) do not apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section. (12) In the carrying out of any functions by virtue of this section OFCOM may nevertheless have regard to any of the matters in respect of which a duty is imposed by section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011 if it is a matter to which the CMA is entitled to have regard in the carrying out of those functions. (13) In making any decision, or otherwise taking action, for the purposes of any of its functions that, by virtue of this section, are functions exercisable concurrently with the CMA, OFCOM must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.

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371 OFCOM’s functions under the Competition Act 1998

(1) The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the CMA. (2) This subsection applies to the functions of the CMA under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6) , 35C, 38(1) to (6) , 40B(1) to (4) and 51), so far as relating to— (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, or (c) transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act), which relate to activities connected with communications matters. (3) So far as necessary for the purposes of, or in connection with, the provisions of subsections (1) and (2), references to the CMA in Part 1 of the Competition Act 1998 (including references in provisions of the Enterprise Act 2002 applied by that Part) are to be read as including references to OFCOM, except— (a) in sections 31D(1) to (6) , 35C, 38(1) to (6) , 40B(1) to (4), 51, 52(6) and (8) and 54, and (b) where the context otherwise requires. (4) In subsection (2), the reference to activities connected with communications matters, so far as it is a reference to activities connected with any apparatus falling within paragraph (d) of section 369(1), includes a reference to— (a) the supply and export of any such apparatus; and (b) the production or acquisition of any such apparatus for supply or export. (5) In section 54 of the Competition Act 1998— (a) in subsection (1) (definition of “regulator” for the purposes of Part 1 of that Act), for paragraph (a) there shall be substituted— (a) the Office of Communications; (b) in subsection (4) (power to make regulations about concurrent functions of the CMA and sectoral regulators), “or by Chapter V of Part I of the Transport Act 2000” there shall be inserted “ to this Act, by Chapter 5 of Part 1 of the Transport Act 2000 or by section 371 of the Communications Act 2003 ”. (6) In paragraph 5 of Schedule 2 to the Competition Act 1998 (publication of list of networking arrangements under the 1990 Act excluded from the Chapter 1 prohibition)— (a) in sub-paragraph (2), for “The Independent Television Commission (“ITC”)” there shall be substituted “ OFCOM ”; and (b) in sub-paragraph (3), for “The ITC” there shall be substituted “ OFCOM ”. (7) In section 59(1) of the Competition Act 1998 (interpretation of Part 1), after the definition of “Minister of the Crown” there shall be inserted— “OFCOM” means the Office of Communications; . (8) OFCOM may carry out, in respect of activities connected with communications matters and concurrently with the CMA, the functions of the CMA under any of paragraphs 3, 7, 19(3) and 36 to 39 of Schedule 13 to the Competition Act 1998 (transitional provisions). (9) If any question arises as to whether, by virtue of this section, any functions fall to be, or are capable of being, carried out by OFCOM in relation to a particular case, that question shall be referred to and determined by the Secretary of State. (10) No objection shall be taken to anything done under by or in relation to OFCOM under the Competition Act 1998 (c. 41) on the ground that it should have been done by or in relation to the CMA. (11) Subject to subsection (12), section 3 of this Act (general duties) and section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service) do not apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section. (12) In the carrying out of any functions by virtue of this section OFCOM may nevertheless have regard to any of the matters in respect of which a duty is imposed by section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011 if it is a matter to which the CMA is entitled to have regard in the carrying out of those functions. (13) In making any decision, or otherwise taking action, for the purposes of any of its functions that— (a) by virtue of this section, are functions exercisable concurrently with the CMA, and (b) are functions within Schedule 4A to the Enterprise and Regulatory Reform Act 2013 by virtue of paragraph 5 of that Schedule, OFCOM must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.

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372 Application of the Competition Act 1998 to news provision

(1) Section 194A of the 1990 Act (which modifies the Competition Act 1998 in relation to agreements relating to Channel 3 news provision) shall be amended as follows. (2) In subsection (1) (meaning of “relevant agreement”)— (a) for “section 31A(a)” there shall be substituted “ section 280 of the Communications Act 2003 ”; and (b) for “section 31(2)” (in both places) there shall be substituted “ that section ”. (3) In subsections (2), (6) and (7)(b)(i) (consultations with and notifications to the Office of Fair Trading), after the words “the OFT”, in each place where they occur, there shall be inserted “ and OFCOM ”. (4) In subsection (3)(b)— (a) for “section 31(2)” there shall be substituted “ section 280 of the Communications Act 2003 ”; and (b) for “section 31(1) and (2)” there shall be substituted “ that section of that Act of 2003 ”. (5) In subsection (5)(c) (declaration without notification), after “the OFT” there shall be inserted “ or OFCOM or both of them ”. (6) In subsection (7) (restriction on exercise by Office of Fair Trading of Chapter III powers)— (a) for “The OFT may not” there shall be substituted “ Neither the OFT nor OFCOM may ”; and (b) for paragraph (a) there shall be substituted— (a) the Secretary of State has been notified by the OFT or (as the case may be) by OFCOM of its or their intention to do so; and . (7) In subsection (8) (notice by Office of Fair Trading to the Secretary of State), for the words from the beginning to “assist” in paragraph (a) there shall be substituted— (8) Where the OFT or OFCOM is or are proposing to exercise any Chapter III powers in respect of a relevant agreement, it or they must give the Secretary of State particulars of the agreement and such other information— (a) it considers or (as the case may be) they consider will assist . (8) In subsection (9), in the definition of “Chapter III powers”, for “given to the OFT by” there shall be substituted “ of the OFT and of OFCOM under ”.

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373 Repeal of existing newspaper merger regime

Sections 57 to 62 of the Fair Trading Act 1973 (c. 41) (newspaper merger references) shall cease to have effect.

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374 Repeal of exclusion for newspaper mergers from general merger controls

Section 69 of the Enterprise Act 2002 (c. 40) (exclusion of newspaper mergers from references under Part 3 of that Act) shall cease to have effect.

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375 Media public interest considerations

(1) After subsection (2) of section 58 of the Enterprise Act 2002 (considerations specified as public interest considerations for the purpose of the main merger regime) there shall be inserted— (2A) The need for— (a) accurate presentation of news; and (b) free expression of opinion; in newspapers is specified in this section. (2B) The need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the United Kingdom or a part of the United Kingdom is specified in this section. (2C) The following are specified in this section— (a) the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience; (b) the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and (c) the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003. (2) After that section there shall be inserted, in Chapter 2 of Part 3— Construction of consideration specified in section 58(2C) 58A (1) For the purposes of section 58 and this section an enterprise is a media enterprise if it consists in or involves broadcasting. (2) In the case of a merger situation in which at least one of the enterprises ceasing to be distinct consists in or involves broadcasting, the references in section 58(2C)(a) or this section to media enterprises include references to newspaper enterprises. (3) In this Part “newspaper enterprise” means an enterprise consisting in or involving the supply of newspapers. (4) Wherever in a merger situation two media enterprises serving the same audience cease to be distinct, the number of such enterprises serving that audience shall be assumed to be more immediately before they cease to be distinct than it is afterwards. (5) For the purposes of section 58, where two or more media enterprises— (a) would fall to be treated as under common ownership or common control for the purposes of section 26, or (b) are otherwise in the same ownership or under the same control, they shall be treated (subject to subsection (4)) as all under the control of only one person. (6) A reference in section 58 or this section to an audience shall be construed in relation to a media enterprise in whichever of the following ways the decision-making authority considers appropriate— (a) as a reference to any one of the audiences served by that enterprise, taking them separately; (b) as a reference to all the audiences served by that enterprise, taking them together; (c) as a reference to a number of those audiences taken together in such group as the decision-making authority considers appropriate; or (d) as a reference to a part of anything that could be taken to be an audience under any of paragraphs (a) to (c) above. (7) The criteria for deciding who can be treated for the purposes of this section as comprised in an audience, or as comprised in an audience served by a particular service— (a) shall be such as the decision-making authority considers appropriate in the circumstances of the case; and (b) may allow for persons to be treated as members of an audience if they are only potentially members of it. (8) In this section “audience” includes readership. (9) The power under subsection (3) of section 58 to modify that section includes power to modify this section. (3) In section 127(1) of that Act (associated persons to be treated as one person), for the word “and” at the end of paragraph (a) there shall be substituted— (aa) for the purposes of section 58(2C); and .

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376 Adaptation of role of OFT in initial investigations and reports

(1) In section 44(3)(b) of the Enterprise Act 2002 (c. 40) (initial report by OFT in public interest cases must include summary of representations about public interest considerations) after the word “concerned” there shall be inserted “ (other than a media public interest consideration) ”. (2) After section 44(5) of that Act there shall be inserted— (5A) The report may, in particular, contain a summary of any representations about the case which have been received by the OFT and which relate to any media public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45. (3) After section 44(7) of that Act there shall be inserted— (8) In this Part “media public interest consideration” means any consideration which, at the time of the giving of the intervention notice concerned— (a) is specified in section 58(2A) to (2C); or (b) in the opinion of the Secretary of State, is concerned with broadcasting or newspapers and ought to be specified in section 58. (9) In this Part “broadcasting” means the provision of services the provision of which— (a) is required to be licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part 1 or 2 of the Broadcasting Act 1996; or (b) would be required to be so licensed if provided by a person subject to licensing under the Part in question. (10) In this Part “newspaper” means a daily, Sunday or local (other than daily or Sunday) newspaper circulating wholly or mainly in the United Kingdom or in a part of the United Kingdom. (11) The Secretary of State may by order amend subsections (9) and (10).

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377 Additional investigation and report by OFCOM

After section 44 of the Enterprise Act 2002 (investigation and report by OFT in public interest cases) there shall be inserted— Additional investigation and report by OFCOM: media mergers 44A (1) Subsection (2) applies where— (a) the Secretary of State has given an intervention notice in relation to a relevant merger situation; and (b) the intervention notice mentions any media public interest consideration. (2) OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case. (3) The report shall contain— (a) advice and recommendations on any media public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45; and (b) a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration. (4) OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.

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378 Extension of special public interest regime for certain media mergers

(1) In section 59 of the Enterprise Act 2002 (c. 40) (intervention by Secretary of State in special public interest cases), for subsections (3) and (4) (definition of “special merger situation”) there shall be substituted— (3) For the purposes of this Part a special merger situation has been created if— (a) the condition mentioned in subsection (3A) is satisfied; and (b) immediately before the enterprises concerned ceased to be distinct— (i) the conditions mentioned in subsection (3B) were satisfied; (ii) the condition mentioned in subsection (3C) was satisfied; or (iii) the condition mentioned in subsection (3D) was satisfied. (3A) The condition mentioned in this subsection is that— (a) no relevant merger situation has been created because of section 23(1)(b) and (2)(b); but (b) a relevant merger situation would have been created if those enactments were disregarded. (3B) The conditions mentioned in this subsection are that— (a) at least one of the enterprises concerned was carried on in the United Kingdom or by or under the control of a body corporate incorporated in the United Kingdom; and (b) a person carrying on one or more of the enterprises concerned was a relevant government contractor. (3C) The condition mentioned in this subsection is that, in relation to the supply of newspapers of any description, at least one-quarter of all the newspapers of that description which were supplied in the United Kingdom, or in a substantial part of the United Kingdom, were supplied by the person or persons by whom one of the enterprises concerned was carried on. (3D) The condition mentioned in this subsection is that, in relation to the provision of broadcasting of any description, at least one-quarter of all broadcasting of that description provided in the United Kingdom, or in a substantial part of the United Kingdom, was provided by the person or persons by whom one of the enterprises concerned was carried on. (2) After subsection (6) of that section there shall be inserted— (6A) The Secretary of State may by order amend the conditions mentioned in subsection (3)(b)(ii) and (iii). (3) After that section there shall be inserted— Construction of conditions in section 59(3C) and (3D) 59A (1) For the purpose of deciding whether the proportion of one-quarter mentioned in section 59(3C) or (3D) is fulfilled with respect to— (a) newspapers of any description, or (b) broadcasting of any description, the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate. (2) References in section 59(3C) to the supply of newspapers shall, in relation to newspapers of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate— (a) as references to any of those forms of supply taken separately; (b) as references to all those forms of supply taken together; or (c) as references to any of those forms of supply taken in groups. (3) For the purposes of subsection (2) the decision-making authority may treat newspapers as being the subject of different forms of supply whenever— (a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and (b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference. (4) References in section 59(3D) to the provision of broadcasting shall, in relation to broadcasting of any description which is the subject of different forms of provision, be construed in whichever of the following ways the decision-making authority considers appropriate— (a) as references to any of those forms of provision taken separately; (b) as references to all those forms of provision taken together; or (c) as references to any of those forms of provision taken in groups. (5) For the purposes of subsection (4) the decision-making authority may treat broadcasting as being the subject of different forms of provision whenever— (a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and (b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference. (6) The criteria for deciding when newspapers or broadcasting can be treated, for the purposes of section 59, as newspapers or broadcasting of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case. (7) In section 59 and this section “provision” and cognate expressions have the same meaning in relation to broadcasting as in Part 3 of the Communications Act 2003; but this subsection is subject to subsections (4) and (5) of this section.

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379 Adaptation of role of OFT in special public interest regime

(1) Section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and report by OFT in special public interest cases) shall be amended as follows. (2) In subsection (3)(b) (report must include summary of representations about considerations specified in section 58) after the word “concerned” there shall be inserted “ (other than a consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C)) ”. (3) In subsection (4) for the words “59(4)(b)” there shall be substituted “ 59(3B)(b) ”. (4) After subsection (4) there shall be inserted— (4A) The report may, in particular, contain a summary of any representations about the case which have been received by the OFT and which relate to any consideration which— (a) is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and (b) is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.

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380 Additional investigation and report by OFCOM: special public interest cases

After section 61 of the Enterprise Act 2002 (initial investigation and report by OFT in special public interest cases) there shall be inserted— Additional investigation and report by OFCOM: certain media mergers 61A (1) Subsection (2) applies where— (a) the Secretary of State has given a special intervention notice in relation to a special merger situation; and (b) the special intervention notice mentions any consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C). (2) OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case. (3) The report shall contain— (a) advice and recommendations on any consideration which— (i) is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and (ii) is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and (b) a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration. (4) OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.

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381 Public consultation in relation to media mergers

After section 104 of the Enterprise Act 2002 (c. 40) there shall be inserted— Public consultation in relation to media mergers 104A (1) Subsection (2) applies where the Commission— (a) is preparing— (i) a report under section 50 on a reference which specifies a media public interest consideration; or (ii) a report under section 65 on a reference which specifies a consideration specified in section 58(2A) to (2C); and (b) is not under a duty to disregard the consideration concerned. (2) The Commission shall have regard (among other things) to the need to consult the public so far as they might be affected by the creation of the relevant merger situation or special merger situation concerned and so far as such consultation is practicable. (3) Any consultation of the kind mentioned in subsection (2) may be undertaken by the Commission by consulting such representative sample of the public or section of the public concerned as the Commission considers appropriate.

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