PART 3 continued CHAPTER 4 continued
(1) Standards set by OFCOM to secure the objectives mentioned in section 319(2)(a) and (g) to (j)—
(a) must include general provision governing standards and practice in advertising and in the sponsoring of programmes; and
(b) may include provision prohibiting advertisements and forms and methods of advertising or sponsorship (whether generally or in particular circumstances).
(2) For the purposes of section 319(2)(g) an advertisement contravenes the prohibition on political advertising if it is—
(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;
(b) an advertisement which is directed towards a political end; or
(c) an advertisement which has a connection with an industrial dispute.
(3) For the purposes of this section objects of a political nature and political ends include each of the following—
(a) influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;
(b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;
(c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;
(d) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;
(e) influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;
(f) influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;
(g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends.
(4) OFCOM—
(a) shall, in relation to programme services, have a general responsibility with respect to advertisements and methods of advertising and sponsorship; and
(b) in the discharge of that responsibility may include conditions in any licence which is granted by them for any such service that enable OFCOM to impose requirements with respect to any of those matters that go beyond the provisions of OFCOM’s standards code.
(5) OFCOM must, from time to time, consult the Secretary of State about—
(a) the descriptions of advertisements that should not be included in programme services; and
(b) the forms and methods of advertising and sponsorship that should not be employed in, or in connection with, the provision of such services.
(6) The Secretary of State may give OFCOM directions as to the matters mentioned in subsection (5); and it shall be the duty of OFCOM to comply with any such direction.
(7) Provision included by virtue of this section in standards set under section 319 is not to apply to, or to be construed as prohibiting the inclusion in a programme service of—
(a) an advertisement of a public service nature inserted by, or on behalf of, a government department; or
(b) a party political or referendum campaign broadcast the inclusion of which is required by a condition imposed under section 333 or by paragraph 18 of Schedule 12 to this Act.
(8) In this section “programme service” does not include a service provided by the BBC.
(1) The regulatory regime for each of the following—
(a) every television programme service licensed by a Broadcasting Act licence,
(b) the public teletext service, and
(c) every other teletext service so licensed that consists in an additional television service or a digital additional television service,
includes a condition requiring the person providing the service to comply with every direction given to him by OFCOM with respect to any of the matters mentioned in subsection (2).
(2) Those matters are—
(a) the maximum amount of time to be given to advertisements in any hour or other period;
(b) the minimum interval which must elapse between any two periods given over to advertisements;
(c) the number of such periods to be allowed in any programme or in any hour or day; and
(d) the exclusion of advertisements from a specified part of a licensed service.
(3) Directions under this section—
(a) may be either general or specific;
(b) may be qualified or unqualified; and
(c) may make different provision for different parts of the day, different days of the week, different types of programmes or for other differing circumstances.
(4) In giving a direction under this section, OFCOM must take account of such of the international obligations of the United Kingdom as the Secretary of State may notify to them for the purposes of this section.
(1) The Secretary of State may by order modify the list of matters in section 319(4) to which OFCOM are to have regard when setting or revising standards.
(2) Before making an order under this section, the Secretary of State must consult OFCOM.
(3) No order is to be made containing provision authorised by subsection (1) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(1) Before setting standards under section 319, OFCOM must publish, in such manner as they think fit, a draft of the proposed code containing those standards.
(2) After publishing the draft code and before setting the standards, OFCOM must consult every person who holds a relevant licence and such of the following as they think fit—
(a) persons appearing to OFCOM to represent the interests of those who watch television programmes;
(b) persons appearing to OFCOM to represent the interests of those who make use of teletext services; and
(c) persons appearing to OFCOM to represent the interests of those who listen to sound programmes.
(3) After publishing the draft code and before setting the standards, OFCOM must also consult—
(a) the Welsh Authority, about so much of the draft code as relates to television programme services;
(b) the BBC, about so much of the draft code as contains standards other than those for advertising or sponsorship; and
(c) such of the persons mentioned in subsection (4) as OFCOM think fit, about so much of the draft code as contains standards for advertising or sponsorship.
(4) Those persons are—
(a) persons appearing to OFCOM to represent the interests of those who will have to take account of the contents of the proposed standards for advertising or sponsorship;
(b) bodies and associations appearing to OFCOM to be concerned with the application of standards of conduct in advertising; and
(c) professional organisations appearing to OFCOM to be qualified to give relevant advice in relation to the advertising of particular products.
(5) If it appears to OFCOM that a body exists which represents the interests of a number of the persons who hold relevant licences, they may perform their duty under subsection (2) of consulting such persons, so far as it relates to the persons whose interests are so represented, by consulting that body.
(6) OFCOM may set standards under section 319 either—
(a) in the terms proposed in a draft code published under subsection (1); or
(b) with such modifications as OFCOM consider appropriate in the light of the consultation carried out as a result of subsections (2) to (5).
(7) Subsections (1) to (6) apply to a proposal by OFCOM to revise standards set under section 319 as they apply to a proposal to set such standards.
(8) Where OFCOM set standards under section 319, they must publish the code containing the standards 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 the standards.
(9) Where OFCOM revise standards set under section 319, they shall so publish the code containing the standards as revised.
(10) Where OFCOM publish a code under subsection (8) or (9), they shall send a copy of it—
(a) to the Secretary of State;
(b) except in the case of a code containing standards for advertising or sponsorship, to the BBC; and
(c) if the code relates to television programme services, to the Welsh Authority.
(11) A code (or draft code) contains standards for advertising or sponsorship for the purposes of this section to the extent that it sets standards under section 319 for securing any of the objectives mentioned in any of paragraphs (g) to (k) of subsection (2) of that section.
(12) In this section “relevant licence”, in relation to a draft code, means—
(a) to the extent that the draft code relates to
(i) television programme services,
(ii) the public teletext service, or
(iii) an additional television service,
a licence under Part 1 of the 1990 Act (independent television services), under section 18 of the 1996 Act (digital television programme services) under section 25 of that Act (digital additional television services) or under section 219 of this Act; and
(b) to the extent that the draft code relates to radio programme services, any licence under Part 3 of the 1990 Act (independent radio services), under section 60 of the 1996 Act (digital sound programme service) or under section 64 of that Act (digital additional services).
(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes conditions for securing—
(a) that standards set under section 319 are observed in the provision of that service; and
(b) that procedures for the handling and resolution of complaints about the observance of those standards are established and maintained.
(2) It shall be the duty of OFCOM themselves to establish procedures for the handling and resolution of complaints about the observance of standards set under section 319.
(3) OFCOM may from time to time make a report to the Secretary of State on any issues with respect to OFCOM’s standards code which—
(a) have been identified by them in the course of carrying out their functions; and
(b) appear to them to raise questions of general broadcasting policy.
(4) The conditions of a licence which is granted by OFCOM for a programme service must, for the purpose of securing compliance—
(a) with OFCOM’s standards code, so far as it relates to advertising and the sponsorship of programmes, and
(b) with any such requirements as are mentioned in section 321(4) which relate to advertising and sponsorship but go beyond that code,
include a condition requiring the licence holder to comply with every direction given to him by OFCOM with respect to any of the matters mentioned in subsection (5).
(5) Those matters are—
(a) the exclusion from the service of a particular advertisement, or its exclusion in particular circumstances;
(b) the descriptions of advertisements and methods of advertising to be excluded from the service (whether generally or in particular circumstances); and
(c) the forms and methods of sponsorship to be excluded from the service (whether generally or in particular circumstances).
(6) OFCOM’s powers and duties under this section are not to be construed as restricting any power of theirs, apart from this section—
(a) to include conditions with respect to the content of programmes included in any service in the licence to provide that service; or
(b) to include conditions in a licence requiring the holder of a licence to comply with directions given by OFCOM or by any other person.
The regulatory regime for every programme service licensed by a Broadcasting Act licence includes the conditions that OFCOM consider appropriate for securing observance—
(a) in connection with the provision of that service, and
(b) in relation to the programmes included in that service,
of the code for the time being in force under section 107 of the 1996 Act (the fairness code).
(1) Part 5 of the 1996 Act (functions of the Broadcasting Standards Commission which are transferred to OFCOM so far as they relate to codes of practice and complaints with respect to fairness and privacy) shall be amended as follows.
(2) No person shall be entitled to make a standards complaint under that Part at any time after the coming into force of this section, and no person shall be required to entertain any such complaint that is so made.
(3) In section 115 (consideration of fairness complaint)—
(a) in subsection (4) (matters to be provided in response to a fairness complaint), after paragraph (d) there shall be inserted—
“(da) to provide OFCOM with such other things appearing to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the relevant person, as may be specified or described by OFCOM;”
(b) in subsection (7) (requests in relation to which the relevant person is required to secure the compliance of another), after paragraph (c) there shall be inserted—
“(ca) a request to provide OFCOM with such other things appearing to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the person requested, as may be specified or described by OFCOM;”.
(4) For subsection (7) of section 119 (directions on determination of fairness complaint) there shall be substituted—
“(7) The regulatory regime for every licensed service includes the conditions that OFCOM consider appropriate for securing that the licence holder complies with every direction given to him under this section.
(7A) Section 263 of the Communications Act 2003 applies in relation to conditions included by virtue of subsection (7) in the regulatory regime for a licensed service as it applies in relation to conditions which are so included by virtue of a provision of Chapter 4 of Part 3 of that Act.
(7B) It is hereby declared that, where—
(a) OFCOM exercise their powers under this Part to adjudicate upon a fairness complaint or to give a direction under subsection (1), and
(b) it appears to them that the matters to which the complaint in question relates consist in or include a contravention of the conditions of the licence for a licensed service,
the exercise by OFCOM of their powers under this Part is not to preclude the exercise by them of their powers under any other enactment in respect of the contravention.
(7C) Where OFCOM are proposing to exercise any of their powers in respect of a contravention of a licence condition in a case in which the contravention relates to matters that have been the subject-matter of a fairness complaint—
(a) OFCOM may have regard, in the exercise of those powers, to any matters considered or steps taken by them for the purpose of adjudicating upon that complaint and to any direction given by them under this section; but
(b) steps taken for the purposes of this Part do not satisfy a requirement to give the licence holder in relation to whom those powers are to be exercised a reasonable opportunity, before they are exercised, of making representations to OFCOM.”
(5) For subsection (2) of section 120 of that Act (reports on supplementary action taken in response to findings on fairness complaint) there shall be substituted—
“(2) Where the relevant programme was included in a licensed service, the licence holder shall send to OFCOM a report of any supplementary action taken by him or by any other person responsible for the making or provision of the relevant programme.”
(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes the conditions that OFCOM consider appropriate for securing that—
(a) the procedures which, by virtue of section 325, are established and maintained for handling and resolving complaints about the observance of standards set under section 319, and
(b) their functions under Part 5 of the 1996 Act in relation to that service,
are brought to the attention of the public (whether by means of broadcasts or otherwise).
(2) Conditions included in a licence by virtue of subsection (1) may require the holder of the licence to comply with every direction given to him by OFCOM for the purpose mentioned in that subsection.
(1) Where—
(a) a foreign service to which this section applies comes to OFCOM’s attention, and
(b) they consider that the service is unacceptable and should be the subject of an order under this section,
they must send a notification to the Secretary of State giving details of the service and their reasons for considering that an order should be made.
(2) A service is not to be considered unacceptable by OFCOM unless they are satisfied that—
(a) programmes containing objectionable matter are included in the service; and
(b) that the inclusion of objectionable matter in programmes so included is occurring repeatedly.
(3) Matter is objectionable for the purposes of subsection (2) only if—
(a) it offends against taste or decency;
(b) it is likely to encourage or to incite the commission of crime;
(c) it is likely to lead to disorder; or
(d) it is likely to be offensive to public feeling.
(4) Where the Secretary of State has received a notification under this section in the case of a service, he may make an order—
(a) identifying the service in such manner as he thinks fit; and
(b) proscribing it.
(5) The Secretary of State is not to make an order proscribing a service unless he is satisfied that the making of the order is—
(a) in the public interest; and
(b) compatible with the international obligations of the United Kingdom.
(6) The television and sound services to which this section applies are—
(a) television licensable content services provided otherwise than by broadcasting from a satellite;
(b) digital television programme services;
(c) digital additional television services;
(d) radio licensable sound services provided otherwise than by being broadcast from a satellite;
(e) digital sound programme services; and
(f) digital additional sound services.
(7) A service to which this section applies is a foreign service if it—
(a) is a service capable of being received in the United Kingdom for the provision of which no Broadcasting Act licence is either in force or required to be in force; but
(b) is also a service for the provision of which such a licence would be required—
(i) in the case of a service falling within subsection (6)(a) to (c), if the person providing it were under the jurisdiction of the United Kingdom for the purposes of the Television without Frontiers Directive; and
(ii) in any other case, if the person providing it provided it from a place in the United Kingdom or were a person whose principal place of business is in the United Kingdom.
(1) This section applies where a service is for the time being proscribed by an order under section 329.
(2) The proscribed service is not to be included in—
(a) a multiplex service; or
(b) a cable package.
(3) In this section “multiplex service” means a television multiplex service, a radio multiplex service or a general multiplex service.
(4) In this section “cable package” means (subject to subsection (5)) a service by means of which programme services are packaged together with a view to their being distributed—
(a) by means of an electronic communications service;
(b) so as to be available for reception by members of the public in the United Kingdom; and
(c) without the final delivery of the programme services to the persons to whom they are distributed being by wireless telegraphy.
(5) Programme services distributed by means of an electronic communications service do not form part of a cable package if—
(a) the distribution of those services forms only part of a service provided by means of that electronic communications service; and
(b) the purposes for which the service of which it forms a part is provided do not consist wholly or mainly in making available television programmes or radio programmes (or both) for reception by members of the public.
(1) Where OFCOM determine that there are reasonable grounds for believing that there has been a contravention of section 330 in relation to a multiplex service or a cable package, they may give a notification under this section to—
(a) the provider of that multiplex service; or
(b) the person providing the cable package.
(2) A notification under this section is one which—
(a) sets out the determination made by OFCOM; and
(b) requires the person to whom it is given to secure that the proscribed service (so long as it remains proscribed) is not—
(i) included in the notified person’s multiplex service, or
(ii) distributed as part of his cable package,
at any time more than seven days after the day of the giving of the notification.
(3) If it is reasonably practicable for a person to whom a notification is given under this section to secure that the proscribed service ceases to be included in that person’s multiplex service, or to be distributed as part of his cable package, before the end of that seven days, then he must do so.
(4) It shall be the duty of a person to whom a notification is given under this section to comply with the requirements imposed by the notification and by subsection (3).
(5) That duty shall be enforceable in civil proceedings by OFCOM—
(a) for an injunction;
(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or
(c) for any other appropriate remedy or relief.
(6) In this section “cable package” and “multiplex service” each has the same meaning as in section 330.
(1) OFCOM may impose a penalty on a person who contravenes a requirement imposed on him by or under section 331.
(2) Before imposing a penalty on a person under this section OFCOM must give him a reasonable opportunity of making representations to them about their proposal to impose the penalty.
(3) The amount of the penalty imposed on a person is to be such amount not exceeding £5,000 as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(4) In making that determination OFCOM must have regard to—
(a) any representations made to them by the person notified under section 331; and
(b) any steps taken by him for complying with the requirements imposed on him under that section.
(5) Where OFCOM impose a penalty on a person under this section, they shall—
(a) notify the person penalised; and
(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.
(6) A penalty imposed under this section must be paid to OFCOM within the period fixed by them.
(7) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (3).
(8) No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(9) For the purposes of this section there is a separate contravention in respect of every day on which the proscribed service is at any time included in a person’s multiplex service or distributed as part of his cable package.
(10) In this section “multiplex service” and “cable package” each has the same meaning as in section 330.
(1) The regulatory regime for every licensed public service channel, and the regulatory regime for every national radio service, includes—
(a) conditions requiring the inclusion in that channel or service of party political broadcasts and of referendum campaign broadcasts; and
(b) conditions requiring that licence holder to observe such rules with respect to party political broadcasts and referendum campaign broadcasts as may be made by OFCOM.
(2) The rules made by OFCOM for the purposes of this section may, in particular, include provision for determining—
(a) the political parties on whose behalf party political broadcasts may be made;
(b) in relation to each political party on whose behalf such broadcasts may be made, the length and frequency of the broadcasts; and
(c) in relation to each designated organisation on whose behalf referendum campaign broadcasts are required to be broadcast, the length and frequency of such broadcasts.
(3) Those rules are to have effect subject to sections 37 and 127 of the Political Parties, Elections and Referendums Act 2000 (c. 41) (only registered parties and designated organisations to be entitled to party political broadcasts or referendum campaign broadcasts).
(4) Rules made by OFCOM for the purposes of this section may make different provision for different cases.
(5) Before making any rules for the purposes of this section, OFCOM must have regard to any views expressed by the Electoral Commission.
(6) In this section—
“designated organisation”, in relation to a referendum, means a person or body designated by the Electoral Commission under section 108 of the Political Parties, Elections and Referendums Act 2000 (c. 41) in respect of that referendum;
“national radio service” means a national service within the meaning of section 245 of this Act; and
“referendum campaign broadcast” has the meaning given by section 127 of that Act.
(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes conditions imposing on the provider of the service—
(a) a requirement in respect of every programme included in the service to retain a recording of the programme in a specified form and for a specified period after its inclusion;
(b) a requirement to comply with any request by OFCOM to produce to them for examination or reproduction a recording retained in pursuance of the conditions in the licence; and
(c) a requirement, if the provider is able to do so, to comply with any request by OFCOM to produce to them a script or transcript of a programme included in the programme service.
(2) The period specified for the purposes of a condition under subsection (1)(a) must be—
(a) in the case of a programme included in a television programme service, a period not exceeding ninety days; and
(b) in the case of a programme included in a radio programme service, a period not exceeding forty-two days.
(3) For the purpose of maintaining supervision of the programmes included in programme services, OFCOM may themselves make and use recordings of those programmes or any part of them.
(4) Nothing in this Part is to be construed as requiring OFCOM, in the carrying out of their functions under this Part as respects programme services and the programmes included in them, to view or listen to programmes in advance of their being included in such services.