Digital Economy Act 2017 (Chapter 30, updated up to June 7, 2018), United Kingdom, WIPO Lex

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English Digital Economy Act 2017 (Chapter 30, updated up to June 7, 2018)

Digital Economy Act 2017

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Digital Economy Act 2017 2017 CHAPTER 30

An Act to make provision about electronic communications infrastructure and services; to provide for restricting access to online pornography; to make provision about protection of intellectual property in connection with electronic communications; to make provision about data-sharing; to make provision in connection with section 68 of the Telecommunications Act 1984; to make provision about functions of OFCOM in relation to the BBC; to provide for determination by the BBC of age-related TV licence fee concessions; to make provision about the regulation of direct marketing; to make other provision about OFCOM and its functions; to make provision about internet filters; to make provision about preventing or restricting the use of communication devices in connection with drug dealing offences; to confer power to create an offence of breaching limits on ticket sales; to make provision about the payment of charges to the Information Commissioner; to make provision about payment systems and securities settlement systems; to make provision about qualifications in information technology; and for connected purposes. [27th April 2017]

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

PART 1

ACCESS TO DIGITAL SERVICES

1 Universal service broadband obligations

(1) The Communications Act 2003 is amended as follows.

(2) Section 65 (obligations to be secured by universal service conditions) is amended as follows.

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(3) In subsection (1) omit “(“the universal service order”)”.

(4) After subsection (2) insert—

“(2A) The provision made under subsection (1) is referred to as “the universal service order”.

(2B) The universal service order may in particular say that broadband connections and services must be provided to any extent, but may not do so unless—

(a) it specifies the minimum download speed that must be provided by those connections and services, and

(b) the speed so specified is at least 10 megabits per second.

(2C) The universal service order may contain— (a) guidance about matters relating to the speed or other characteristics

of broadband connections or services that it says must be provided (as well as or, except in the case of the minimum download speed, instead of setting out any of those characteristics); and

(b) guidance about any other matters relating to those connections or services.”

(5) In section 66 (designation of universal service provider) after subsection (9) insert—

“(9A) In making any regulations under this section, OFCOM must have regard to any guidance that is contained in the universal service order.”

(6) In section 67(8) (universal service conditions: duty to have regard to guidance) omit “about matters relating to pricing”.

(7) After section 72 (before the heading “Access-related conditions”) insert—

“72A Review of universal service order

(1) The Secretary of State may direct OFCOM to review and report to the Secretary of State on any provision made, or that may be made, by the universal service order in relation to broadband connections or services.

(2) The Secretary of State must consult OFCOM before giving a direction under this section.

(3) The Secretary of State must publish a direction under this section.

(4) OFCOM must publish the report made by them to the Secretary of State of a review under this section.

72B Broadband download speeds: duty to give direction under section 72A

(1) The Secretary of State must give OFCOM a direction under section 72A if— (a) the universal service order specifies a minimum download speed for

broadband connections and services and the speed so specified is less than 30 megabits per second, and

(b) it appears to the Secretary of State, on the basis of information published by OFCOM, that broadband connections or services that provide a minimum download speed of at least 30 megabits per

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second are subscribed to for use in at least 75% of premises in the United Kingdom.

(2) The direction— (a) must require OFCOM to review and report to the Secretary of State

on whether it would be appropriate for the universal service order to specify a higher minimum download speed, and

(b) may also require OFCOM to review and report to the Secretary of State on any other matter falling within section 72A(1).”

(8) In section 135(3)(f) (power of OFCOM to require information for purposes of reviews) for “or 70” substitute “ , 70 or 72A ”.

2 General conditions: switching communications provider

(1) Section 51(2) of the Communications Act 2003 (conditions which may be set for protecting interests of end-users) is amended as follows.

(2) Omit “and” after paragraph (g).

(3) After paragraph (h) insert— “(i) specify requirements in relation to arrangements that enable an end-

user to change communications provider on request.”

3 Automatic compensation for failure to meet performance standards

In section 51(2) of the Communications Act 2003 (conditions which may be set for protecting interests of end-users), after paragraph (d) insert—

“(da) require a communications provider to pay compensation to an end-user on failing to meet a specified standard or obligation;”.

PART 2

DIGITAL INFRASTRUCTURE

Electronic communications code

4 The electronic communications code

(1) In the Telecommunications Act 1984 omit Schedule 2 (the telecommunications code).

(2) Before Schedule 4 to the Communications Act 2003 insert Schedule 3A set out in Schedule 1 to this Act.

(3) Section 106 of the Communications Act 2003 (application of the electronic communications code) is amended as follows.

(4) In subsection (1) for “the code set out in Schedule 2 to the Telecommunications Act 1984 (c 12)” substitute “ the code set out in Schedule 3A ”.

(5) Omit subsection (2).

(6) In subsection (4)(b) for “conduits” substitute “ infrastructure ”.

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(7) In subsection (5)(c) for “conduit system” in each place substitute “ system of infrastructure ”.

(8) In subsection (6) for “16(3)” substitute “ 85(7) ”.

(9) Omit subsection (7).

(10) Schedules 2 (transitional provisions) and 3 (consequential amendments) have effect.

Annotations:

Commencement Information I1 S. 4 in force at 31.7.2017 for specified purposes by S.I. 2017/765, reg. 2(ii)(jj) I2 S. 4 in force at 22.11.2017 for specified purposes by S.I. 2017/1136, reg. 2 I3 S. 4 in force at 28.12.2017 in so far as not already in force by S.I. 2017/1286, reg. 2(a)

5 Power to make transitional provision in connection with the code

(1) The Secretary of State may by regulations made by statutory instrument make transitional, transitory or saving provision in connection with the coming into force of section 4 and Schedule 1.

(2) Regulations under this section may amend Schedule 2.

(3) A statutory instrument containing regulations under this section— (a) if it includes provision made by virtue of subsection (2), may not be made

unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament;

(b) otherwise, is subject to annulment in pursuance of a resolution of either House of Parliament.

Annotations:

Commencement Information I4 S. 5 in force at 31.7.2017 by S.I. 2017/765, reg. 2(a)

6 Power to make consequential provision etc in connection with the code

(1) The Secretary of State may by regulations make consequential provision in connection with any provision made by or under section 4 or this section or Schedule 1 or 3.

(2) Regulations under subsection (1) may amend, repeal, revoke or otherwise modify the application of any enactment (but, in the case of primary legislation, only if the primary legislation was passed or made before the end of the Session in which this Act is passed).

(3) Regulations under this section— (a) are to be made by statutory instrument; (b) may make different provision for different purposes; (c) may include incidental, supplementary, consequential, transitional, transitory

or saving provision.

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(4) A statutory instrument containing regulations under this section (whether alone or with other provisions) which amend, repeal or modify the application of primary legislation may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(5) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

(6) In this section— “enactment” includes—

(a) an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978,

(b) an enactment comprised in, or in an instrument made under, a Measure or Act of the National Assembly for Wales,

(d) an enactment comprised in, or in an instrument made under, Northern Ireland legislation;

“primary legislation” means— (a) an Act of Parliament, (b) a Measure or Act of the National Assembly for Wales, (c) an Act of the Scottish Parliament, or (d) Northern Ireland legislation.

Annotations:

Commencement Information I5 S. 6 in force at 31.7.2017 by S.I. 2017/765, reg. 2(b)

7 Application of the code: protection of the environment

For section 109(2A) of the Communications Act 2003 (under which regulations that set restrictions and conditions to the application of the electronic communications code are deemed by subsection (2B) to comply with duties under National Parks and other legislation if they comply with the duty to have regard to the need to protect the environment, but only if they expire before 6 April 2018) substitute—

“(2A) Subsection (2B) applies if the Secretary of State has complied with subsection (2)(b) in connection with any particular exercise of the power to make regulations under this section.”

Dynamic spectrum access services

8 Regulation of dynamic spectrum access services

(1) After Part 2 of the Wireless Telegraphy Act 2006 insert—

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“PART 2A

REGULATION OF DYNAMIC SPECTRUM ACCESS SERVICES

Registration

53A Registration of providers of dynamic spectrum access services

(1) A person who provides, or proposes to provide, a dynamic spectrum access service may be registered under this section by OFCOM.

(2) An application for registration under this section— (a) is to be made to OFCOM, and (b) must contain such information as OFCOM may reasonably require.

(3) OFCOM must, from time to time as they think fit, publish— (a) the criteria for determining applications under this section, and (b) information relating to the restrictions and conditions to which

registration under this section may be subject.

(4) The criteria published under subsection (3)(a) may include different provision for different cases.

(5) Registration under this section is to be for such period, and subject to such restrictions and conditions, as OFCOM think fit.

(6) Any such restrictions and conditions are to be contained in a notice in writing given to the person registered under this section.

(7) In this Act “dynamic spectrum access service” means a service that provides information about—

(a) the availability for use by wireless telegraphy stations and wireless telegraphy apparatus of frequencies that fall within a frequency band specified in regulations made by OFCOM, and

(b) the places in which, the power at which, the times when and any conditions subject to which such stations and apparatus may use such frequencies.

53B Revocation and variation of registration

(1) OFCOM may revoke a registration under section 53A, or vary the restrictions and conditions to which it is subject—

(a) by notice in writing given to the person registered under that section, or

(b) by a general notice applicable to the class to which the person belongs, published in such way as appears to OFCOM to be appropriate.

(2) Where OFCOM propose to revoke or vary a registration, they must give the person registered under section 53A a notification—

(a) stating the reason for the proposed revocation or variation, and

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(b) specifying the period during which the person notified has an opportunity to make representations about the proposal.

(3) Nothing in subsection (2) applies to a proposal to revoke or vary a registration if the proposal is made at the request or with the consent of the person registered under section 53A.

(4) Nothing in this section applies in relation to— (a) a notification given under section 53E, or (b) a decision given under section 53G.

53C Register of providers of dynamic spectrum access services

(1) OFCOM must establish and maintain a register for the purposes of this Part.

(2) The register is to contain— (a) the names of the persons registered under section 53A, and (b) such other information relating to the registration of those persons as

OFCOM consider appropriate.

(3) OFCOM may make available to users or prospective users of dynamic spectrum access services such information contained in the register as they consider appropriate.

Fees

53D Fees for registration etc

(1) Regulations made by OFCOM may provide for OFCOM to charge fees— (a) for registering a person under section 53A; (b) for the continuation in force of such a registration; (c) for the variation or revocation of such a registration; (d) for anything done by OFCOM in connection with facilitating the

service provided by a person registered under section 53A.

(2) Subsection (1)(d) does not include anything for which OFCOM may charge under any other enactment.

(3) The fees— (a) are to be determined by or in accordance with the regulations, and (b) are to be payable by the person who is to be, is or has been registered

under section 53A.

(4) The regulations may— (a) confer exemptions in particular cases, and (b) provide for sums paid to be refunded, in whole or in part, in such cases

as may be specified in the regulations or in such cases as OFCOM think fit.

(5) Where OFCOM register a person in circumstances in which sums will or may subsequently become payable under the regulations, OFCOM may require

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such security to be given, by way of deposit or otherwise, for the payment of those sums as they think fit.

(6) A sum which is required to be paid to OFCOM by virtue of the regulations must be paid to OFCOM as soon as it becomes payable in accordance with the regulations and, if it is not paid, is recoverable by them accordingly.

Enforcement

53E Notification of contravention of registration restrictions or conditions

(1) Where OFCOM determine that there are reasonable grounds for believing that a person registered under section 53A is contravening, or has contravened, the restrictions or conditions subject to which the person is registered they may give that person a notification under this section.

(2) A notification under this section is one which— (a) sets out the determination made by OFCOM, (b) specifies the restriction or condition and contravention in respect of

which that determination has been made, (c) specifies the period during which the person notified has an

opportunity to make representations, (d) specifies the steps that OFCOM think should be taken by the person

in order to— (i) comply with the restriction or condition;

(ii) remedy the consequences of the contravention, (e) if OFCOM are minded to suspend or revoke the person's registration,

contains a statement to that effect, and (f) specifies any penalty which OFCOM are minded to impose in

accordance with section 53F.

(3) A notification under this section— (a) may be given in respect of more than one contravention, and (b) if it is given in respect of a continuing contravention, may be given in

respect of any period during which the contravention has continued.

(4) Where a notification under this section has been given to a person in respect of a contravention of a restriction or condition, OFCOM may give a further notification in respect of the same contravention of that restriction or condition if, and only if—

(a) the contravention is one occurring after the time of the giving of the earlier notification,

(b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates, or

(c) the earlier notification has been withdrawn without a penalty having been imposed, or other action taken, in respect of the notified contravention.

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53F Penalties under section 53E

(1) This section applies where a person is given a notification under section 53E that specifies a proposed penalty.

(2) Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

(3) Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

(4) But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a) the giving of a confirmation decision under section 53G which requires immediate action, or

(b) the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5) The amount of a penalty specified under subsection (4) is to be such amount, not exceeding £20,000 per day, as OFCOM think—

(a) appropriate, and (b) proportionate to the contravention in respect of which it is imposed.

(6) The amount of any other penalty specified under this section is to be such amount, not exceeding 10% of the relevant amount of gross revenue, as OFCOM think—

(a) appropriate, and (b) proportionate to the contravention in respect of which it is imposed.

53G Enforcement of notification under section 53E

(1) This section applies where— (a) a person has been given a notification under section 53E, (b) OFCOM have allowed the person an opportunity to make

representations about the matters notified, and (c) the period allowed for the making of representations has expired.

(2) OFCOM may— (a) give the person a decision (a “confirmation decision”) confirming

the imposition of requirements on the person, or the suspension or revocation of the person's registration, or both, in accordance with the notification under section 53E, or

(b) inform the person that they are satisfied with the person's representations and that no further action will be taken.

(3) OFCOM may not give a confirmation decision to a person unless, after considering any representations, they are satisfied that the person has, in one or more of the respects notified, been in contravention of a restriction or condition specified in the notification under section 53E.

(4) A confirmation decision—

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(a) must be given to the person without delay, (b) must include reasons for the decision, (c) may require immediate action by the person to comply with

requirements of a kind mentioned in section 53E(2)(d), or may specify a period within which the person must comply with those requirements,

(d) may require the person to pay— (i) the penalty specified in the notification under section 53E, or

(ii) such lesser penalty as OFCOM consider appropriate in the light of the person's representations or steps taken by the person to comply with the condition or restriction or remedy the consequences of the contravention, and

(e) may specify the period within which any such penalty is to be paid.

(5) It is the duty of the person to comply with any requirement imposed by a confirmation decision.

(6) That duty is 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, or (c) for any other appropriate remedy or relief.

(7) A penalty imposed by a confirmation decision— (a) must be paid to OFCOM, and (b) if not paid within the period specified by them, is to be recoverable

by them accordingly.

53H Meaning of “relevant amount of gross revenue”

(1) The relevant amount of gross revenue for the purposes of section 53F, in relation to a penalty imposed on a person, is—

(a) where the last accounting period of that person which falls before the contravention was a period of 12 months, the relevant part of the person's gross revenue for that period, and

(b) in any other case, the amount which, by making any appropriate apportionments or other adjustments of the relevant part of the person's gross revenue for the accounting period or periods mentioned in subsection (2), is computed to be the amount representing the annual rate for the relevant part of the person's gross revenue.

(2) The accounting period or periods referred to in subsection (1) are— (a) every accounting period of the person to end within the period of 12

months immediately preceding the contravention, and (b) if there is no such accounting period, the accounting period of the

person which is current at the time of the contravention.

(3) A reference to the relevant part of a person's gross revenue, in relation to a contravention of the restrictions or conditions subject to which the person is registered under section 53A, is a reference to so much of the person's gross revenue as is attributable to the provision of the dynamic spectrum access service to which the contravention relates.

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(4) For the purposes of this section— (a) the gross revenue of a person for a period, and (b) the extent to which a part of a person's gross revenue is attributable

to the provision of any dynamic spectrum access service, is to be ascertained in accordance with such principles as may be set out in a statement made by OFCOM.

(5) Such a statement may provide for the amount of a person's gross revenue for an accounting period that is current when the amount falls to be calculated to be taken to be the amount estimated by OFCOM, in accordance with the principles set out in the statement, to be the amount that will be the person's gross revenue for that period.

(6) OFCOM may revise a statement made under subsection (4) from time to time.

(7) A statement made or revised under this section may set out different principles for different cases.

(8) Before making or revising a statement under this section, OFCOM must consult the Secretary of State and the Treasury.

(9) OFCOM must— (a) publish the statement made under subsection (4) and every revision

of it, and (b) send a copy of the statement and of every such revision to the

Secretary of State, and the Secretary of State must lay copies of the statement and of every such revision before each House of Parliament.

(10) In this section— “accounting period”, in relation to a person, means a period in

respect of which accounts of the undertaking carried on by the person are prepared or, if one such period is comprised in another, whichever of those periods is or is closest to a 12 month period;

“gross revenue”, in relation to a person, means the gross revenue of an undertaking carried on by that person.

53I Requirement to provide information about gross revenue

(1) OFCOM may require a person to whom a notification has been given under section 53E to provide them with all such information as they may require for the purpose of ascertaining the person's gross revenue.

(2) A demand for information required under this section must be contained in a notice given to the person from whom the information is required.

(3) A person required to give information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.

(4) Sections 53K to 53M apply for the purposes of a requirement imposed under this section as they apply for the purposes of a requirement imposed under section 53J.

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Information

53J Provision of information to persons registered under section 53A

(1) OFCOM may require a person falling within subsection (2) to provide a person registered under section 53A with all such information as OFCOM consider necessary and proportionate for the purpose of enabling the registered person to avoid undue interference with wireless telegraphy.

(2) The persons falling within this subsection are— (a) a person who is using, or has established or used, a wireless telegraphy

station, and (b) a person who is using, or has installed or used, wireless telegraphy

apparatus.

(3) A demand for information required under this section must be contained in a notice given to the person from whom the information is required.

(4) The notice must— (a) describe the required information, (b) specify the manner and form in which it is to be provided, (c) specify when and (if appropriate) how frequently it is to be provided,

and (d) specify to whom it is to be provided.

53K Notification of contravention of information requirements

(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a requirement imposed under section 53J, they may give the person a notification under this section.

(2) A notification under this section is one which— (a) sets out the determination made by OFCOM, (b) specifies the requirement and contravention in respect of which the

determination has been made, (c) specifies the period during which the person notified has an

opportunity to make representations, and (d) specifies any penalty which OFCOM are minded to impose in

accordance with section 53L.

(3) A notification under this section— (a) may be given in respect of more than one contravention, and (b) if it is given in respect of a continuing contravention, may be given in

respect of any period during which the contravention has continued.

(4) Where a notification under this section has been given to a person in respect of a contravention of a requirement, OFCOM may give a further notification in respect of the same contravention if, and only if—

(a) the contravention is one occurring after the time of the giving of the earlier notification,

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(b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates, or

(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

53L Penalties under section 53K

(1) This section applies where a person is given a notification under section 53K that specifies a proposed penalty.

(2) Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

(3) Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

(4) But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a) the giving of a confirmation decision under section 53M(4)(c) which requires immediate action, or

(b) the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5) The amount of a penalty specified under subsection (4) is to be such amount, not exceeding £20,000 per day, as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

(6) The amount of any other penalty specified under this section is to be such amount, not exceeding £2 million, as OFCOM determine to be both—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

53M Enforcement of notification under section 53K

(1) This section applies where— (a) a person has been given a notification under section 53K, (b) OFCOM have allowed the person an opportunity to make

representations about the matters notified, and (c) the period allowed for the making of representations has expired.

(2) OFCOM may— (a) give the person a decision (a “confirmation decision”) confirming the

imposition of requirements in accordance with the notification under section 53K, or

(b) inform the person that they are satisfied with the person's representations and that no further action will be taken.

(3) OFCOM may not give a confirmation decision to a person unless, after considering any representations, they are satisfied that the person has, in

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one or more of the respects notified, been in contravention of a requirement notified under section 53K.

(4) A confirmation decision— (a) must be given to the person without delay, (b) must include reasons for the decision, (c) may require immediate action by the person to comply with a

requirement notified under section 53K, or may specify a period within which the person must comply with the requirement,

(d) may require the person to pay— (i) the penalty specified in the notification under section 53L, or

(ii) such lesser penalty as OFCOM consider appropriate in the light of the person's representations or steps taken by the person to comply with the requirement or remedy the consequences of the contravention, and

(e) may specify the period within which any such penalty is to be paid.

(5) It is the duty of the person to comply with any requirement imposed by a confirmation decision.

(6) That duty is 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, or (c) for any other appropriate remedy or relief.

(7) A penalty imposed by a confirmation decision— (a) must be paid to OFCOM, and (b) if not paid within the period specified by them, is to be recoverable

by them accordingly.”

(2) In section 111(3) of that Act (exemptions from general restriction on disclosure), after paragraph (c) insert—

“(ca) by OFCOM to a person registered under section 53A for the purpose of providing the dynamic spectrum access service in respect of which the person is registered;”.

(3) In section 115(1) of that Act (general interpretation), at the appropriate place insert—

““dynamic spectrum access service” has the meaning given by section 53A;”.

(4) In section 400(1) of the Communications Act 2003 (destination of fees and penalties) —

(a) in paragraph (d), before “of that Act” insert “ or Part 2A ”, and (b) after that paragraph insert—

“(da) an amount paid to OFCOM in respect of a fee charged under section 53D of that Act;”.

(5) In Schedule 8 to that Act (decisions not subject to appeal)— (a) in paragraph 40(a), after “45” insert “ , 53A(7), 53D ”, (b) in paragraph 41, for “or 24” substitute “ , 24 or 53D(6) ”, and (c) in paragraph 43, omit the “or” after paragraph (a) and at the end of

paragraph (b) insert “, or

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Annotations:

Commencement Information I6 S. 8 in force at 31.7.2017 by S.I. 2017/765, reg. 2(c)

Other regulation of spectrum

9 Penalties for contravention of wireless telegraphy licences

(1) The Wireless Telegraphy Act 2006 is amended as follows.

(2) In section 42 (special procedure for contraventions by multiplex licence holders), in subsection (1)—

(a) in paragraph (a), for “general multiplex” substitute “ wireless telegraphy ”, and

(b) omit paragraph (b).

(3) At the end of that section insert—

“(7) A contravention is a “relevant multiplex contravention” for the purposes of section 43 if—

(a) it is a contravention of terms, provisions or limitations of a general multiplex licence, and

(b) the contravention relates only to terms, provisions or limitations that fall within section 9(4)(b) or (c).”

(4) In the heading of that section, for “multiplex licence holders” substitute “ holders of wireless telegraphy licences ”.

(5) In section 43 (amount of penalty under section 42), in subsection (1), after “section 42” insert “ for a relevant multiplex contravention (see subsection (7) of that section) ”.

(6) In that section, after subsection (2) insert—

“(2A) The amount of a penalty imposed under section 42 for a contravention that is not a relevant multiplex contravention is to be such amount not exceeding 10 per cent of the relevant amount of gross revenue as OFCOM think—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.”

(7) In that section, in subsection (3), for “subsection (2)” substitute “ this section ”.

(8) Omit section 43A.

(9) In section 44 (relevant amount of gross revenue), in subsections (1) and (10), omit “or 43A”.

(10) In section 400 of the Communications Act 2003 (destination of licence fees and penalties), in subsection (1)(d), omit “or 43A”.

(11) In Schedule 8 to that Act (decisions not subject to appeal), at the end of paragraph 44 insert “ for a relevant multiplex contravention ”.

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(12) Omit section 39 of the Digital Economy Act 2010.

(13) The amendments and repeals made by this section do not apply in relation to— (a) any contravention which takes place before the day on which this section

comes into force, or (b) any continuing contravention which began before that day.

10 Fixed penalties under Wireless Telegraphy Act 2006

(1) In paragraph 4(2)(a) of Schedule 4 to the Wireless Telegraphy Act 2006 (suspended enforcement period for purposes of fixed penalty notice) for “one month” substitute “ 28 days ”.

(2) The amendment made by this section does not apply in relation to a fixed penalty notice issued in respect of an offence committed before this section comes into force.

11 Search warrants under Wireless Telegraphy Act 2006

(1) In section 97(3) of the Wireless Telegraphy Act 2006 (period for entering premises under warrant) for “of three months beginning with the day after the date of the warrant” substitute “ beginning with the grant of the warrant and ending three months after the end of the day on which the warrant is granted ”.

(2) The amendment made by this section does not apply in relation to a warrant granted in respect of an offence committed before this section comes into force.

12 Disposal of seized property under Wireless Telegraphy Act 2006

(1) In section 101 of the Wireless Telegraphy Act 2006 (detention and disposal of seized property), for subsection (5) substitute—

“(5) OFCOM may dispose of the property in such manner as they think fit if it remains in their possession after the end of the six months immediately following—

(a) the end of the period of detention authorised by subsection (2)(a), or (b) if subsection (2)(b) applies, the end of the day on which the

proceedings referred to in that provision were concluded.”

(2) The amendment made by this section does not apply where the relevant offence is one committed before this section comes into force.

(3) The relevant offence— (a) where section 101(1)(a) of the Wireless Telegraphy Act 2006 applies, is the

offence in relation to which the warrant is granted; (b) where section 101(1)(b) of that Act applies, is the offence referred to in

section 99(3) of that Act.

13 Time limits for prosecutions under Wireless Telegraphy Act 2006

(1) The Wireless Telegraphy Act 2006 is amended as follows.

(2) In section 107 (proceedings and enforcement), after subsection (3) insert—

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“(3A) For the time limit for bringing proceedings which are for a summary offence under section 35 and to which section 41 applies see section 41(7).

(3B) The time limit for bringing any other proceedings for a summary offence under section 35, 58 or 66 is—

(a) one year from the end of the day on which the prosecutor becomes aware of evidence which he or she considers sufficient to justify a prosecution for the offence, or

(b) if earlier, three years from the end of the day on which the offence was committed.

(3C) Section 41(7) and subsection (3B) above have effect despite— (a) section 127 of the Magistrates' Courts Act 1980 (time limit for

bringing proceedings for summary offences in England and Wales), (b) Article 19 of the Magistrates' Courts (Northern Ireland) Order 1981

(S.I. 1981/1675 (N.I. 26)) (equivalent provision for Northern Ireland), and

(3D) In relation to proceedings in Scotland, subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced for the purposes of that section) applies also for the purposes of section 41(7) and subsection (3B) above.”

(3) In section 41 (procedure for prosecutions)— (a) in subsection (3)(b) for “allowed under that section” substitute “ specified

under section 39(2)(c) for making representations ”; (b) in subsection (7) for the words from “allowed” to the end substitute “ specified

under section 39(2)(c). ”; (c) for subsection (8) substitute—

“(8) For further provision about prosecutions see section 107.”

(4) The amendments made by this section do not apply in relation to an offence committed before this section comes into force.

PART 3

ONLINE PORNOGRAPHY

14 Internet pornography: requirement to prevent access by persons under 18

(1) A person contravenes this subsection if the person makes pornographic material available on the internet to persons in the United Kingdom on a commercial basis other than in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18.

(2) The Secretary of State may make regulations specifying, for the purposes of this Part, circumstances in which material is or is not to be regarded as made available on a commercial basis.

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(3) The regulations may, among other things, prescribe circumstances in which material made available free of charge is or is not to be regarded as made available on a commercial basis.

(4) Regulations under subsection (2) may provide for circumstances to be treated as existing where it is reasonable to assume that they exist.

(5) Regulations 17 to 20 and 22 of the Electronic Commerce (EC Directive) Regulations 2002 (S.I. 2002/2013) apply in relation to this Part, despite regulation 3(2) of those Regulations.

(6) For the purposes of this Part, making material available on the internet does not include making the content of an on-demand programme service available on the internet in the course of providing such a service.

(7) In subsection (6), “on-demand programme service” has the meaning given by section 368A of the Communications Act 2003.

(8) Regulations under subsection (2) may make different provision for different purposes.

(9) Regulations under subsection (2) are to be made by statutory instrument.

(10) A statutory instrument containing regulations under subsection (2) is subject to annulment in pursuance of a resolution of either House of Parliament.

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

Annotations:

Commencement Information I7 S. 14 in force at 31.7.2017 for specified purposes by S.I. 2017/765, reg. 2(d)

15 Meaning of “pornographic material”

(1) In this Part “pornographic material” (except in the expression “extreme pornographic material”) means any of the following—

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

(b) material that was included in a video work to which paragraph (a) applies, if it is reasonable to assume from its nature that its inclusion was among the reasons why the certificate was an R18 certificate;

(c) any other material if it is reasonable to assume from its nature that any classification certificate issued in respect of a video work including it would be an R18 certificate;

(d) a video work in respect of which the video works authority has issued an 18 certificate, and that it is reasonable to assume from its nature was produced solely or principally for the purposes of sexual arousal;

(e) material that was included in a video work to which paragraph (d) applies, if it is reasonable to assume from the nature of the material—

(i) that it was produced solely or principally for the purposes of sexual arousal, and

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(ii) that its inclusion was among the reasons why the certificate was an 18 certificate;

(f) any other material if it is reasonable to assume from its nature— (i) that it was produced solely or principally for the purposes of sexual

arousal, and (ii) that any classification certificate issued in respect of a video work

including it would be an 18 certificate; (g) a video work that the video works authority has determined not to be suitable

for a classification certificate to be issued in respect of it, if— (i) it includes material (other than extreme pornographic material) that

it is reasonable to assume from its nature was produced solely or principally for the purposes of sexual arousal, and

(ii) it is reasonable to assume from the nature of that material that its inclusion was among the reasons why the video works authority made that determination;

(h) material (other than extreme pornographic material) that was included in a video work that the video works authority has determined not to be suitable for a classification certificate to be issued in respect of it, if it is reasonable to assume from the nature of the material—

(i) that it was produced solely or principally for the purposes of sexual arousal, and

(ii) that its inclusion was among the reasons why the video works authority made that determination;

(i) any other material (other than extreme pornographic material) if it is reasonable to assume from the nature of the material—

(i) that it was produced solely or principally for the purposes of sexual arousal, and

(ii) that the video works authority would determine that a video work including it was not suitable for a classification certificate to be issued in respect of it.

(2) In this section— “18 certificate” means a classification certificate which—

(a) contains, pursuant to section 7(2)(b) of the Video Recordings Act 1984, a statement that the video work is suitable for viewing only by persons who have attained the age of 18 and that no video recording containing that work is to be supplied to any person who has not attained that age, and

(b) does not contain the statement mentioned in section 7(2)(c) of that Act that no video recording containing the video work is to be supplied other than in a licensed sex shop;

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

“material” means— (a) a series of visual images shown as a moving picture, with or without

sound; (b) a still image or series of still images, with or without sound; or (c) sound;

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

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

“video work” means a video work within the meaning of the Video Recordings Act 1984, other than a video game within the meaning of that Act.

Annotations:

Commencement Information I8 S. 15 in force at 31.7.2017 for specified purposes by S.I. 2017/765, reg. 2(e)

16 The age-verification regulator: designation and funding

(1) The Secretary of State may by notice designate any person, or any two or more persons jointly, as the age-verification regulator for the purposes of—

(a) all of the functions of the age-verification regulator under this Part, or (b) any of those functions specified in the notice by which the designation is made.

(2) Different persons may be designated for the purposes of different functions.

(3) The Secretary of State may at any time by notice— (a) revoke a designation under this section; (b) designate one or more other persons in place of any person or persons

designated under this section.

(4) The Secretary of State's power to designate a person under this section includes a power to designate the holder for the time being of any office or employment specified in the notice by which the designation is made.

(5) The Secretary of State must not make a designation under this section unless satisfied that—

(a) arrangements will be maintained by the age-verification regulator for appeals to which subsection (6) applies, and

(b) any person hearing an appeal under those arrangements will be sufficiently independent of the age-verification regulator.

(6) This subsection applies to appeals— (a) by a person on whom a financial penalty has been imposed under section 19(1)

or (10), against the imposition of that penalty; (b) by a person to whom an enforcement notice has been given under

section 19(2), against the giving of that notice; (c) by a person identified as the non-complying person in a notice given under

section 21, against the giving of that notice; (d) by an internet service provider to whom a notice has been given under

section 23(1), against the giving of that notice; (e) by a person identified as the non-complying person in a notice given to an

internet service provider under section 23(1), against the giving of that notice.

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(7) A notice under subsection (1) or (3) must be published in the London, Edinburgh and Belfast Gazettes.

(8) The Secretary of State may pay grants or make loans to the age-verification regulator to cover expenditure incurred in the carrying out of its functions.

(9) Grants may be paid and loans made under subsection (8) subject to any conditions the Secretary of State thinks appropriate (including conditions as to repayment).

Annotations:

Commencement Information I9 S. 16 in force at 31.7.2017 by S.I. 2017/765, reg. 2(f)

17 Parliamentary procedure for designation of age-verification regulator

(1) Where the Secretary of State proposes to make a designation under section 16, the Secretary of State must lay before both Houses of Parliament—

(a) particulars of that proposed designation, and (b) a statement of the reasons why the Secretary of State is satisfied about the

matters mentioned in section 16(5).

(2) The Secretary of State must not make the proposed designation until after the end of the period of 40 days beginning with the day on which the particulars of it were laid.

(3) If either House resolves within that period that the Secretary of State should not make the proposed designation, the Secretary of State must not make it.

(4) But subsection (5) applies, instead of subsections (2) and (3), where the proposed designation would be—

(a) the first to be made under section 16, or (b) the first to be made under that section for the purposes of a particular function.

(5) The Secretary of State may not make the designation unless it has been approved by a resolution of each House of Parliament.

(6) But subsections (3) and (5) are without prejudice to the Secretary of State's power to lay before Parliament particulars of further proposed designations in accordance with this section.

(7) For the purposes of subsection (2)— (a) where particulars of a proposed designation are laid before each House of

Parliament on different days, the later day is to be taken as the day on which the particulars were laid before both Houses, and

(b) in reckoning any period of 40 days, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.

Annotations:

Commencement Information I10 S. 17 in force at 31.7.2017 by S.I. 2017/765, reg. 2(g)

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PROSPECTIVE

18 Regulator's power to require information

(1) The age-verification regulator may by notice require a relevant person to provide it with any information which it requires for the purpose of exercising, or deciding whether to exercise, any function under this Part.

(2) The power in subsection (1) may only be exercised to require a relevant person to provide information which the age-verification regulator believes the relevant person has.

(3) A “relevant person” is— (a) an internet service provider, or (b) any other person who the age-verification regulator believes to be involved,

or to have been involved, in making pornographic material available on the internet on a commercial basis to persons in the United Kingdom.

(4) A notice under subsection (1) must specify— (a) the form and manner in which the information must be provided; and (b) the time at which, or period within which, the information must be provided.

(5) The power in subsection (1) is not exercisable in relation to information in respect of which a claim to legal professional privilege (or, in Scotland, confidentiality of communications) could be maintained in legal proceedings.

PROSPECTIVE

19 Enforcement by regulator of sections 14 and 18

(1) The age-verification regulator may impose a financial penalty on a person where it determines that the person—

(a) is contravening or has contravened section 14(1); or (b) has failed to comply with a requirement to provide information under

section 18.

(2) The age-verification regulator may give a person an enforcement notice where it determines that the person is contravening section 14(1).

(3) The age-verification regulator must not make a determination under subsection (1) or (2) in relation to a person unless it has allowed that person an opportunity to make representations about why that determination should not be made.

(4) The age-verification regulator may— (a) impose a financial penalty under subsection (1) without also giving an

enforcement notice under subsection (2); (b) give an enforcement notice under subsection (2) without also imposing a

financial penalty under subsection (1).

(5) No financial penalty may be imposed under subsection (1) in respect of a contravention of section 14(1) if—

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(a) the contravention has ceased, and (b) the limitation period in respect of the contravention has expired.

(6) For the purposes of subsection (5) the limitation period in respect of a contravention expires—

(a) at the end of the period of three years beginning with the day on which the contravention began; or

(b) if sooner, at the end of the period of one year beginning with the day on which the age-verification regulator became aware of the contravention.

(7) An “enforcement notice” is a notice which— (a) specifies the determination made by the age-verification regulator under

subsection (2); and (b) requires the person to whom it is given to end the contravention of

section 14(1).

(8) An enforcement notice must— (a) include reasons for the age-verification regulator's decision to give the notice;

and (b) fix a reasonable period for ending the contravention of section 14(1).

(9) A person to whom an enforcement notice has been given must comply with it.

(10) If a person contravenes subsection (9), the age-verification regulator may impose a financial penalty on that person.

(11) The obligation under subsection (9) is also enforceable by the age-verification regulator in civil proceedings—

(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.

(12) The imposition of a financial penalty (“the first penalty”) on a person in respect of a contravention of section 14(1) or subsection (9) does not prevent the imposition of another financial penalty on that person under subsection (1) or (10) (as the case may be) in respect of any continuation of that contravention after the first penalty is imposed.

(13) For further provision about financial penalties under this section, see section 20.

PROSPECTIVE

20 Financial penalties imposed by regulator

(1) The age-verification regulator may impose a financial penalty on a person under section 19(1) or (10) of such amount as the age-verification regulator considers appropriate and proportionate to the contravention, or failure to comply, in respect of which it is imposed.

(2) But the amount must not exceed whichever of the following is greater— (a) £250,000;

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(b) 5% of that person's qualifying turnover (if any).

(3) For the purposes of subsection (2), a person's “qualifying turnover” is— (a) the amount of that person's turnover for that person's most recent complete

accounting period; or (b) where the age-verification regulator is deciding the amount of the penalty at a

time when that person's first accounting period has not yet ended, the amount that the age-verification regulator estimates to be that person's likely turnover for that period.

(4) For the purposes of subsection (3), the amount of a person's turnover for an accounting period is, in the event of a disagreement between that person and the age-verification regulator, the amount determined by the age-verification regulator.

(5) In deciding the amount of the financial penalty, the age-verification regulator must have regard to the guidelines or revised guidelines in force under this section.

(6) A financial penalty under section 19(1) or (10) must be imposed by notice given to the person on whom the penalty is imposed.

(7) The notice must— (a) fix a time by which the penalty must be paid by that person to the age-

verification regulator; and (b) in the case of a financial penalty under subsection (1) of section 19, specify the

determination made by the age-verification regulator under that subsection.

(8) A financial penalty received by the age-verification regulator must be paid into the Consolidated Fund.

(9) The age-verification regulator must publish the guidelines it proposes to follow in deciding the amount of a financial penalty under section 19(1) or (10).

(10) The age-verification regulator may revise the guidelines from time to time and must publish any revised guidelines.

(11) The guidelines and any revised guidelines must be published in whatever way the age- verification regulator considers appropriate for bringing them to the attention of the persons who, in its opinion, are likely to be affected by them.

(12) The Secretary of State must lay before both Houses of Parliament the guidelines, and any revised guidelines, published under this section.

(13) Before publishing the guidelines or any revised guidelines, the age-verification regulator must consult—

(a) the Secretary of State; and (b) such other persons as it considers appropriate.

(14) Before deciding how to publish the guidelines or any revised guidelines, the age- verification regulator must consult the Secretary of State.

(15) In subsection (3)— “accounting period”, in relation to a person, means a period in respect of

which accounts are prepared in relation to that person or, where that person is an individual, in respect of that person's principal business;

“turnover”, in relation to a person, means the amounts derived from the provision of goods and services by that person, after deduction of trade

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discounts, value added tax and any other taxes based on the amounts so derived.

21 Notice by regulator to payment-services providers and ancillary service providers

(1) Where the age-verification regulator considers that a person (“the non-complying person”) is—

(a) contravening section 14(1); or (b) making extreme pornographic material available on the internet to persons in

the United Kingdom, it may give notice of that fact to any payment-services provider or ancillary service provider.

(2) A notice under subsection (1) must— (a) identify the non-complying person in such manner as the age-verification

regulator considers appropriate; (b) state whether it is subsection (1)(a) that applies or subsection (1)(b) or both; (c) provide such further particulars as the age-verification regulator considers

appropriate.

(3) When the age-verification regulator gives notice under this section, it must inform the non-complying person, by notice, that it has done so.

(4) In this section a “payment-services provider” means a person who appears to the age- verification regulator to provide services, in the course of a business, which enable funds to be transferred in connection with the payment by any person for access to pornographic material or extreme pornographic material made available on the internet by the non-complying person.

(5) In this section an “ancillary service provider” means a person, other than a payment- services provider, who appears to the age-verification regulator to—

(a) provide, in the course of a business, services which enable or facilitate the making available of pornographic material or extreme pornographic material on the internet by the non-complying person; or

(b) advertise, on or via any internet site operated by the non-complying person or via any other means of accessing the internet operated or provided by that person, any goods or services provided in the course of a business.

(6) For the purposes of subsection (5)(b), a means of accessing the internet does not include a device or other equipment for doing so.

Annotations:

Commencement Information I11 S. 21(5) in force at 31.7.2017 for specified purposes by S.I. 2017/765, reg. 2(h)

22 Meaning of “extreme pornographic material”

(1) In this Part “extreme pornographic material” means (subject to subsection (3)) material —

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(a) whose nature is such that it is reasonable to assume that it was produced solely or principally for the purposes of sexual arousal, and

(b) which is extreme.

(2) For the purposes of subsection (1)(b), material is extreme if— (a) its content is as described in section 63(7) or (7A) of the Criminal Justice and

Immigration Act 2008, and (b) it is grossly offensive, disgusting or otherwise of an obscene character.

(3) Material to which paragraphs (a) and (b) of subsection (1) apply is not “extreme pornographic material” if it is or was included in a classified video work, unless it is material to which subsection (4) applies.

(4) This subsection applies to material— (a) which has been extracted from a classified video work, and (b) whose nature is such that it is reasonable to assume that it was extracted (with

or without other material) solely or principally for the purposes of sexual arousal.

(5) In this section— (a) “classified video work” means a video work in respect of which a video works

authority has issued a classification certificate; (b) “video work” means a video work within the meaning of the Video Recordings

Act 1984; (c) “video works authority” means a person designated under section 4(1) of the

Video Recordings Act 1984; (d) “classification certificate” has the same meaning as in the Video Recordings

Act 1984 (see section 7 of that Act); (e) “material” means—

(i) a still image or series of still images, with or without sound; or (ii) a series of visual images shown as a moving picture, with or without

sound.

Annotations:

Commencement Information I12 S. 22 in force at 31.7.2017 for specified purposes by S.I. 2017/765, reg. 2(i)

PROSPECTIVE

23 Regulator's power to require internet service providers to block access to material

(1) Where the age-verification regulator considers that a person (“the non-complying person”) is—

(a) contravening section 14(1), or (b) making extreme pornographic material available on the internet to persons in

the United Kingdom, it may give a notice under this subsection to any internet service provider.

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(2) The notice must— (a) identify the non-complying person in such manner as the age-verification

regulator considers appropriate; (b) state whether it is subsection (1)(a) that applies or subsection (1)(b) or both; (c) require the internet service provider—

(i) to take steps specified in the notice, or (ii) (if no such steps are specified) to put in place arrangements that

appear to the provider to be appropriate, so as to prevent persons in the United Kingdom from being able to access the offending material using the service it provides;

(d) provide such information as the regulator considers may assist the internet service provider in complying with any requirement imposed by the notice;

(e) provide information about the arrangements for appeals to which section 16(6) (d) applies;

(f) provide such further particulars as the regulator considers appropriate.

(3) The steps that may be specified or arrangements that may be put in place under subsection (2)(c) include steps or arrangements that will or may also have the effect of preventing persons in the United Kingdom from being able to access material other than the offending material using the service provided by the internet service provider.

(4) The notice may require the internet service provider to provide information specified in the notice, in a manner specified in the notice, to persons in the United Kingdom who—

(a) attempt to access the offending material using the service provided by the provider, and

(b) are prevented from doing so as a result of steps taken, or arrangements put in place, by the provider pursuant to the notice.

(5) The notice may specify the time by which the internet service provider must have complied with any requirement imposed by the notice.

(6) The notice may be varied or revoked by a further notice under subsection (1).

(7) The age-verification regulator may publish, in whatever way it considers appropriate, a notice given under subsection (1).

(8) It is the duty of an internet service provider to comply with any requirement imposed on it by a notice under subsection (1).

(9) That duty is enforceable in civil proceedings by the age-verification regulator— (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 relief or remedy.

(10) Before giving a notice to an internet service provider under subsection (1), the age- verification regulator must—

(a) inform the Secretary of State of its decision to do so, and (b) give notice of that decision to the non-complying person under this subsection.

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(11) A notice under subsection (10) (other than notice of a decision to revoke a notice under subsection (1)) must—

(a) where subsection (1)(a) applies— (i) say why the regulator considers that the non-complying person is

contravening section 14(1), and (ii) indicate what steps the regulator considers might be taken by the non-

complying person to comply with that section; (b) where subsection (1)(b) applies, say why the regulator considers that the

offending material is extreme pornographic material; (c) indicate the circumstances in which the regulator may consider revoking the

notice it has decided to give under subsection (1) and the manner in which the non-complying person may notify the regulator of steps taken to satisfy the regulator that the notice ought to be revoked;

(d) provide information about the arrangements for appeals to which section 16(6) (e) applies.

(12) In this section “the offending material”, in relation to a non-complying person, means the material which the age-verification regulator considers is—

(a) being made available in contravention of section 14(1) by the non-complying person; or

(b) extreme pornographic material which the non-complying person is making available on the internet to persons in the United Kingdom.

PROSPECTIVE

24 No power to give notice under section 23(1) where detrimental to national security etc

(1) Before giving a notice under section 23(1) requiring an internet service provider to— (a) take steps referred to in section 23(2)(c)(i), or (b) put in place arrangements referred to in section 23(2)(c)(ii),

the regulator must consider whether the steps or arrangements would be likely to be detrimental to a matter mentioned in subsection (3).

(2) The regulator may not give a notice under section 23(1) where it appears to the regulator that the steps or arrangements would be likely to be detrimental to any of those matters.

(3) The matters are— (a) national security; (b) the prevention or detection of serious crime, within the meaning given in

section 263(1) of the Investigatory Powers Act 2016; (c) the prevention or detection of an offence listed in Schedule 3 to the Sexual

Offences Act 2003.

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25 Guidance to be published by regulator

(1) Subject to the following provisions of this section, the age-verification regulator must publish, and revise from time to time—

(a) guidance about the types of arrangements for making pornographic material available that the regulator will treat as complying with section 14(1); and

(b) guidance for the purposes of section 21(1) and (5) about the circumstances in which it will treat services provided in the course of a business as enabling or facilitating the making available of pornographic material or extreme pornographic material.

(2) Once the regulator has prepared a draft of guidance it proposes to publish under subsection (1)(a), it must submit the draft to the Secretary of State.

(3) When draft guidance is submitted to the Secretary of State under subsection (2), the Secretary of State must lay that draft guidance before both Houses of Parliament.

(4) Once the regulator has prepared a draft of guidance it proposes to publish under subsection (1)(b), it must submit the draft to the Secretary of State for approval.

(5) When draft guidance is submitted to the Secretary of State under subsection (4), the Secretary of State may approve it either without modification or with such modifications as the Secretary of State decides should be made to it.

(6) Once the Secretary of State has approved draft guidance under subsection (5), the Secretary of State must lay the following before both Houses of Parliament—

(a) the draft guidance, incorporating any modifications the Secretary of State has decided should be made to it under that subsection, and

(b) if the draft incorporates such modifications, a statement of the Secretary of State's reasons for deciding that those modifications should be made.

(7) If, within the period of 40 days beginning with the day on which draft guidance is laid before Parliament under subsection (3) or (6), either House resolves not to approve that draft guidance, the age-verification regulator must not publish guidance in the form of that draft.

(8) If no such resolution is made within that period, the age-verification regulator must publish the guidance in the form of the draft laid before Parliament.

(9) But subsection (11) applies, instead of subsections (7) and (8), in a case falling within subsection (10).

(10) The cases falling within this subsection are— (a) the case where draft guidance is laid before Parliament under subsection (3)

and no previous guidance has been published under subsection (1)(a) by the age-verification regulator; and

(b) the case where draft guidance is laid before Parliament under subsection (6) and no previous guidance has been published under subsection (1)(b) by the age-verification regulator.

(11) The regulator must not publish guidance in the form of the draft laid before Parliament unless the draft has been approved by a resolution of each House of Parliament.

(12) Subsections (7) and (11) do not prevent new draft guidance from being laid before Parliament.

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(13) For the purposes of subsection (7)— (a) where draft guidance is laid before each House of Parliament on different

days, the later day is to be taken as the day on which it was laid before both Houses, and

(b) in reckoning any period of 40 days, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.

(14) References in this section to guidance and draft guidance include references to revised guidance and draft revised guidance.

Annotations:

Commencement Information I13 S. 25 in force at 31.7.2017 by S.I. 2017/765, reg. 2(j)

26 Exercise of functions by regulator

(1) The age-verification regulator may, if it thinks fit, choose to exercise its powers under sections 19, 21 and 23 principally in relation to persons who, in the age-verification regulator's opinion—

(a) make pornographic material or extreme pornographic material available on the internet on a commercial basis to a large number of persons, or a large number of persons under the age of 18, in the United Kingdom; or

(b) generate a large amount of turnover by doing so.

(2) The age-verification regulator may— (a) carry out such consultation with any person as it considers appropriate for

the purposes of exercising, or considering whether to exercise, any function under this Part;

(b) carry out, commission or support (financially or otherwise) any research which it considers appropriate for the purposes of exercising, or considering whether to exercise, any function under this Part;

Annotations:

Commencement Information I14 S. 26(2) in force at 31.7.2017 by S.I. 2017/765, reg. 2(k)

27 Guidance by Secretary of State to regulator

(1) The Secretary of State may issue guidance to the age-verification regulator in relation to the exercise of the regulator's functions, and may from time to time revise that guidance.

(2) The guidance may cover (among other things) the following matters— (a) considerations to be applied in determining—

(i) whether arrangements for making pornographic material available comply with section 14(1);

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(ii) whether a person is an ancillary service provider, for the purposes of section 21;

(b) the approach to be taken by the regulator to the exercise of its powers to give notices under sections 19, 21 and 23;

(c) the preparation and publication of guidance and reports by the regulator and the content of such guidance and reports;

(d) the maintenance by the regulator of arrangements meeting the requirements of section 16(5)(a) and (b).

(3) The regulator must have regard to the guidance.

(4) The Secretary of State must lay before both Houses of Parliament the guidance, and any revised guidance, issued under this section.

Annotations:

Commencement Information I15 S. 27 in force at 31.7.2017 by S.I. 2017/765, reg. 2(l)

PROSPECTIVE

28 Requirements for notices given by regulator under this Part

(1) The age-verification regulator may give notice to a person under section 18, 19, 20, 21 or 23 by sending the notice to that person—

(a) by post to that person's proper address; or (b) by email to that person's email address.

(2) In the case of a notice given under section 18, 21(1) or 23(1), a person's proper address for the purposes of subsection (1)(a), and section 7 of the Interpretation Act 1978 in its application to that subsection, is—

(a) where that person is a body corporate, the address of its registered office or principal office;

(b) where that person is a partnership or an unincorporated association or body, the address of its principal office;

(3) In the case of a notice given under section 19, 20, 21(3) or 23(10), a person's proper address for the purposes of subsection (1)(a), and section 7 of the Interpretation Act 1978 in its application to that subsection, is any address at which the age-verification regulator believes, on reasonable grounds, that the notice will come to the attention of that person or (where that person is a body corporate) any director or other officer of that body corporate.

(4) For the purposes of subsection (1)(b), a person's email address is— (a) any email address published for the time being by that person as an address

for contacting that person; or (b) if there is no such published address, any email address by means of which the

age-verification regulator believes, on reasonable grounds, that the notice will come to the attention of that person or (where that person is a body corporate) any director or other officer of that body corporate.

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(5) A notice under section 18, 19, 20, 21 or 23 sent to a person by email is to be taken to have been given to that person 48 hours after it is sent.

(6) In the case of— (a) a body corporate registered outside the United Kingdom; (b) a partnership carrying on business outside the United Kingdom; or (c) an unincorporated association or body with offices outside the United

Kingdom, the references in subsection (2) to its principal office include references to its principal office in the United Kingdom (if any).

(7) In this section— “director” includes any person occupying the position of a director, by

whatever name called; “officer”, in relation to a body corporate, includes a director, a manager,

a secretary or, where the affairs of the body corporate are managed by its members, a member.

PROSPECTIVE

29 Report on this Part

(1) Within 18 months, but not before 12 months, of the coming into force of this Part, the Secretary of State must produce a report on the impact and effectiveness of the regulatory framework provided for in this Part.

(2) Before publishing this report, the Secretary of State must consult on the definitions used within this Part.

(3) The report must be laid before each House of Parliament.

30 Interpretation and general provisions relating to this Part

(1) In this Part— “the age-verification regulator” means the person or persons designated as

the age-verification regulator under section 16; “extreme pornographic material” has the meaning given in section 22; “internet service provider” means a provider of an internet access service

within the meaning given in Article 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015;

“pornographic material” has the meaning given in section 15; “turnover” has the meaning given in section 20(15).

(2) Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for the purposes of this Part as it applies for the purposes of that Act.

(3) Nothing in this Part affects any prohibition or restriction in relation to pornographic material or extreme pornographic material, or powers in relation to such material, under another enactment or a rule of law.

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Annotations:

Commencement Information I16 S. 30(1)(2) in force at 31.7.2017 for specified purposes by S.I. 2017/765, reg. 2(m)

PART 4

INTELLECTUAL PROPERTY

PROSPECTIVE

31 Lending of e-books by public libraries

(1) In section 5(2) of the Public Lending Right Act 1979 (interpretation) for the definition of “lent out” substitute—

““lent out” means made available to a member of the public for use away from library premises for a limited time (including by being communicated by means of electronic transmission to a place other than library premises) and “loan” and “borrowed” are to be read accordingly;”.

(2) Section 40A of the Copyright, Designs and Patents Act 1988 (lending of copies by libraries or archives) is amended as follows.

(3) After subsection (1) insert—

“(1ZA) Subsection (1) applies to an e-book or an e-audio-book only if— (a) the book has been lawfully acquired by the library, and (b) the lending is in compliance with any purchase or licensing terms to

which the book is subject.”

(4) In subsection (1A)— (a) for “subsection (1)” substitute “ subsections (1) and (1ZA) ”; (b) after paragraph (a) insert—

“(aa) “e-audio-book” means an audio-book (as defined in paragraph (a)) in a form enabling lending of the book by electronic transmission,”.

32 Offences: infringing copyright and making available right

(1) The Copyright, Designs and Patents Act 1988 is amended as follows.

(2) In section 107 (criminal liability for making or dealing with infringing articles, etc), for subsection (2A) substitute—

“(2A) A person (“P”) who infringes copyright in a work by communicating the work to the public commits an offence if P—

(a) knows or has reason to believe that P is infringing copyright in the work, and

(b) either—

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(i) intends to make a gain for P or another person, or (ii) knows or has reason to believe that communicating the work

to the public will cause loss to the owner of the copyright, or will expose the owner of the copyright to a risk of loss.

(2B) For the purposes of subsection (2A)— (a) “gain” and “loss”—

(i) extend only to gain or loss in money, and (ii) include any such gain or loss whether temporary or

permanent, and (b) “loss” includes a loss by not getting what one might get.”

(3) In subsection (4A)(b) of that section, for “two” substitute “ ten ”.

(4) In section 198 (criminal liability for making, dealing with or using illicit recordings), for subsection (1A) substitute—

“(1A) A person (“P”) who infringes a performer's making available right in a recording commits an offence if P—

(a) knows or has reason to believe that P is infringing the right, and (b) either—

(i) intends to make a gain for P or another person, or (ii) knows or has reason to believe that infringing the right will

cause loss to the owner of the right, or expose the owner of the right to a risk of loss.

(1B) For the purposes of subsection (1A)— (a) “gain” and “loss”—

(i) extend only to gain or loss in money, and (ii) include any such gain or loss whether temporary or

permanent, and (b) “loss” includes a loss by not getting what one might get.”

(5) In subsection (5A)(b) of that section, for “two” substitute “ ten ”.

(6) The amendments made by this section do not apply in relation to offences committed before this section comes into force.

Annotations:

Commencement Information I17 S. 32 in force at 1.10.2017 by S.I. 2017/765, reg. 3(a)

33 Registered designs: infringement: marking product with internet link

(1) Section 24B of the Registered Designs Act 1949 (exemption of innocent infringer from liability) is amended as follows.

(2) In subsection (2) (defendant not deemed to have been aware etc that design was registered by reason of the marking of the product unless it includes the number of the design), after “the number of the design” insert “ or a relevant internet link ”.

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(3) After that subsection insert—

“(2A) The reference in subsection (2) to a relevant internet link is a reference to an address of a posting on the internet—

(a) which is accessible to the public free of charge, and (b) which clearly associates the product with the number of the design.”

Annotations:

Commencement Information I18 S. 33 in force at 1.10.2017 by S.I. 2017/765, reg. 3(b)

34 Copyright etc where broadcast retransmitted by cable

(1) In the Copyright, Designs and Patents Act 1988 the following are repealed— (a) sections 73 and 73A (copyright not infringed where broadcast retransmitted

by cable); (b) paragraphs 19 and 19A of Schedule 2 (rights in relation to performance or

recording not infringed where broadcast retransmitted by cable).

(2) In consequence the following are repealed or revoked— (a) in the Copyright, Designs and Patents Act 1988—

(i) in section 134, subsection (3A) and, in subsection (1), the words “Subject to subsection (3A)”;

(ii) section 149(za); (iii) section 205B(1)(cc);

(b) in the Broadcasting Act 1996, section 138 and Schedule 9; (c) in the Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

regulation 22.

Annotations:

Commencement Information I19 S. 34 in force at 31.7.2017 by S.I. 2017/765, reg. 2(n)

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PART 5

DIGITAL GOVERNMENT

CHAPTER 1

PUBLIC SERVICE DELIVERY

35 Disclosure of information to improve public service delivery

(1) A specified person may disclose information held by the person in connection with any of the person's functions to another specified person for the purposes of an objective which is a specified objective in relation to each of those persons.

(2) In this section “specified person” means a person specified, or of a description specified, in Schedule 4.

(3) The appropriate national authority may by regulations amend Schedule 4 so as to add, remove or modify an entry relating to a person or description of person.

(4) Regulations under subsection (3) may add an entry relating to a person or a description of person to Schedule 4 only if—

(a) the person is a public authority or (as the case may be) each person of that description is a public authority, or

(b) the person provides services to a public authority or (as the case may be) each person of that description provides services to a public authority.

(5) In the case of a person (“P”) who is a specified person merely because of providing services to a public authority, the reference in subsection (1) to the functions of a specified person is limited to the functions P exercises for that purpose.

(6) In determining whether to make regulations under subsection (3) in relation to a person or description of person the appropriate national authority must have regard, in particular, to—

(a) the systems and procedures for the secure handling of information by that person or persons of that description, and

(b) in the case of regulations which remove a person from Schedule 4 whether that person, or any person providing services to that person, has had regard to the code of practice under section 43 as required by that section.

(7) In this section “specified objective”, in relation to a specified person, means an objective specified in relation to that specified person in regulations made by the appropriate national authority.

(8) An objective may be specified by regulations under subsection (7) only if it complies with the following conditions.

(9) The first condition is that the objective has as its purpose— (a) the improvement or targeting of a public service provided to individuals or

households, or (b) the facilitation of the provision of a benefit (whether or not financial) to

individuals or households.

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(10) The second condition is that the objective has as its purpose the improvement of the well-being of individuals or households.

(11) The reference in subsection (10) to the well-being of individuals or households includes—

(a) their physical and mental health and emotional well-being, (b) the contribution made by them to society, and (c) their social and economic well-being.

(12) The third condition is that the objective has as its purpose the supporting of— (a) the delivery of a specified person's functions, or (b) the administration, monitoring or enforcement of a specified person's

functions.

Annotations:

Commencement Information I20 S. 35 in force at 1.10.2017 for specified purposes for E.W.S. by S.I. 2017/765, reg. 3(c) I21 S. 35 in force at 9.3.2018 for specified purposes by S.I. 2018/342, reg. 2(a)

36 Disclosure of information to gas and electricity suppliers etc

(1) If the first and second conditions are met, a specified person may disclose information held by the person in connection with any of the person's functions to—

(a) a licensed gas supplier, or (b) a licensed electricity supplier.

(2) The first condition is that the disclosure is for the purpose of assisting people living in fuel poverty by—

(a) reducing their energy costs, (b) improving efficiency in their use of energy, or (c) improving their health or financial well-being.

(3) The second condition is that the information is disclosed with the intention that it will be used by the recipient of the information in connection with—

(a) a support scheme under Part 2 of the Energy Act 2010 (schemes for reducing fuel poverty),

(b) in the case of a disclosure to a licensed gas supplier, an obligation imposed by an order under section 33BC or 33BD of the Gas Act 1986 (powers to impose obligations on gas suppliers etc),

(c) in the case of a disclosure to a licensed electricity supplier, an obligation imposed by an order under section 41A or 41B of the Electricity Act 1989 (powers to impose obligations on electricity suppliers etc), or

(d) the making of grants (by any person) under section 15 of the Social Security Act 1990 in accordance with regulations under that section made by the Scottish Ministers or the Welsh Ministers.

(4) In this section and section 37 “specified person” means a person specified, or of a description specified, in Schedule 5.

(5) The appropriate national authority may by regulations—

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(a) amend Schedule 5 so as to add, remove or modify an entry relating to a person or description of person;

(b) amend subsection (1) so as to add or remove a person or description of person to whom information may be disclosed;

(6) Regulations under subsection (5)(a) may add an entry relating to a person or a description of person to Schedule 5 only if—

(a) the person is a public authority or (as the case may be) each person of that description is a public authority, or

(b) the person provides services to a public authority or (as the case may be) each person of that description provides services to a public authority.

(7) Regulations under subsection (5)(b) may add a person or a description of person to subsection (1) only if the person or (as the case may be) each person of that description —

(a) provides assistance of a kind mentioned in subsection (2) to people living in fuel poverty,

(b) monitors or enforces the provision of such assistance to such people, (c) administers a fuel poverty measure, or (d) provides services to a person within paragraph (a), (b) or (c).

(8) In determining whether to make regulations under subsection (5)(a) or (b) in relation to a person or description of person the appropriate national authority must have regard, in particular, to—

(a) the systems and procedures for the secure handling of information by that person or persons of that description, and

(b) in the case of regulations which remove a person from Schedule 5 or subsection (1), whether that person, or any person providing services to that person, has had regard to the code of practice under section 43 as required by that section.

(9) In the case of a person (“P”) who is a specified person merely because of providing services to a public authority, the reference in subsection (1) to the functions of a specified person is limited to the functions P exercises for that purpose.

(10) For the purposes of this Chapter a person lives in fuel poverty if the person is a member of a household living on a lower income in a home which cannot be kept warm at a reasonable cost.

(11) In this section— “fuel poverty measure” means—

(a) a scheme, arrangement or set of arrangements, or (b) a function or set of functions,

which has as its purpose (or one of its purposes) the provision of assistance of a kind mentioned in subsection (2) to people living in fuel poverty;

“licensed gas supplier” means the holder of a licence under section 7A(1) of the Gas Act 1986;

“licensed electricity supplier” means the holder of a licence under section 6(1)(d) of the Electricity Act 1989.

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Annotations:

Commencement Information I22 S. 36 in force at 1.10.2017 for specified purposes by S.I. 2017/765, reg. 3(d)

PROSPECTIVE

37 Disclosure of information by gas and electricity suppliers etc

(1) If the condition in subsection (2) is met, a person to whom information may be disclosed under section 36 may disclose information held by that person to a specified person.

(2) That condition is that the disclosure is for the purpose of assisting people living in fuel poverty in England and Wales or Scotland by—

(a) reducing their energy costs, (b) improving efficiency in their use of energy, or (c) improving their health or financial well-being.

38 Disclosure of information to water and sewerage undertakers etc

(1) If the first and second conditions are met, a specified person may disclose information held by the person in connection with any of the person's functions to—

(a) a water or sewerage undertaker for an area which is wholly or mainly in England, or

(b) a water or sewerage undertaker for an area which is wholly or mainly in Wales.

(2) The first condition is that the disclosure is for the purpose of assisting people living in water poverty by—

(a) reducing their water or sewerage costs, (b) improving efficiency in their use of water, or (c) improving their health or financial well-being.

(3) The second condition is that the information is disclosed with the intention that it will be used by the undertaker in connection with provision in the undertaker's charges scheme under section 143 of the Water Industry Act 1991 which is included in that scheme—

(a) in compliance with regulations under section 143A of that Act which impose requirements within subsection (2)(d) of that section (power for regulations to require charges schemes to make special provision for particular classes of individual), or

(b) by virtue of section 44 of the Flood and Water Management Act 2010 (social tariffs).

(4) In this section and section 39 “specified person” means a person specified, or of a description specified, in Schedule 6.

(5) The appropriate national authority may by regulations— (a) amend Schedule 6 so as to add, remove or modify an entry relating to a person

or description of person;

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(b) amend subsection (1) so as to add or remove a person or description of person to whom information may be disclosed;

(6) Regulations under subsection (5)(a) may add an entry relating to a person or a description of person to Schedule 6 only if—

(a) the person is a public authority or (as the case may be) each person of that description is a public authority, or

(b) the person provides services to a public authority or (as the case may be) each person of that description provides services to a public authority.

(7) Regulations under subsection (5)(b) may add a person or a description of person to subsection (1) only if the person or (as the case may be) each person of that description —

(a) provides assistance of a kind mentioned in subsection (2) to people living in water poverty,

(b) monitors or enforces the provision of such assistance to such people, (c) administers a water poverty measure, or (d) provides services to a person within paragraph (a), (b) or (c).

(a) the systems and procedures for the secure handling of information by that person or persons of that description, and

(b) in the case of regulations which remove a person from Schedule 6 or subsection (1), whether that person, or any person providing services to that person, has had regard to the code of practice under section 43 as required by that section.

(10) For the purposes of this Chapter a person lives in water poverty if the person is a member of a household living on a lower income in a home which—

(a) cannot be supplied with water at a reasonable cost, or (b) cannot be supplied with sewerage services at a reasonable cost.

(11) In this section “water poverty measure” means— (a) a scheme, arrangement or set of arrangements, or (b) a function or set of functions,

which has as its purpose (or one of its purposes) the provision of assistance of a kind mentioned in subsection (2) to people living in water poverty.

Annotations:

Commencement Information I23 S. 38 in force at 9.3.2018 for specified purposes by S.I. 2018/342, reg. 2(b)

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PROSPECTIVE

39 Disclosure of information by water and sewerage undertakers etc

(1) If the condition in subsection (2) is met, a person to whom information may be disclosed under section 38 may disclose information held by that person to a specified person.

(2) That condition is that the disclosure is for the purpose of assisting people living in water poverty in England and Wales by—

(a) reducing their water or sewerage costs, (b) improving efficiency in their use of water, or (c) improving their health or financial well-being.

PROSPECTIVE

40 Further provisions about disclosures under any of sections 35 to 39

(1) Personal information disclosed under any of sections 35 to 39 may only be used by the person to whom it is disclosed for the purposes for which it was disclosed, subject to subsection (2).

(2) Subsection (1) does not prevent the use of information by a person— (a) if the information has already lawfully been made available to the public, (b) if the person to whom the information relates consents to its use for another

purpose, (c) for the prevention or detection of crime or the prevention of anti-social

behaviour, (d) for the purposes of a criminal investigation, (e) for the purposes of legal proceedings (whether civil or criminal), or (f) for the purposes of—

(i) preventing serious physical harm to a person, (ii) preventing loss of human life,

(iii) safeguarding vulnerable adults or children, (iv) responding to an emergency, or (v) protecting national security.

(3) In subsection (2)(c) “anti-social behaviour” means conduct that— (a) is likely to cause harassment, alarm or distress to any person, or (b) is capable of causing nuisance or annoyance to a person in relation to that

person's occupation of residential premises.

(4) Subsection (2) does not apply to information disclosed to a person under section 35, 36 or 38 by the Revenue and Customs; but such information may be used by that person for purposes other than those for which it was disclosed with the consent of the Commissioners for Her Majesty's Revenue and Customs (which may be general or specific).

(5) For the purposes of this Chapter information is “personal information” if—

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(a) it relates to and identifies a particular person (including a body corporate), but (b) it is not information about the internal administrative arrangements of a

specified person or a person to whom information may be disclosed under section 36 or 38.

(6) For the purposes of subsection (5) information identifies a particular person if the identity of that person—

(a) is specified in the information, (b) can be deduced from the information, or (c) can be deduced from the information taken together with any other

information.

(7) A disclosure under any of sections 35 to 39 does not breach— (a) any obligation of confidence owed by the person making the disclosure, or (b) any other restriction on the disclosure of information (however imposed).

(8) But nothing in sections 35 to 39 authorises the making of a disclosure which— (a) contravenes the Data Protection Act 1998, or (b) is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory

Powers Act 2016.

(9) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (8)(b) has effect as if it included a reference to that Part.

(10) Sections 35 to 39 do not limit the circumstances in which information may be disclosed apart from those sections.

PROSPECTIVE

41 Confidentiality of personal information

(1) Personal information disclosed under any of sections 35 to 39 and received by a person (“P”) may not be disclosed—

(a) by P, or (b) by any other person who has received it directly or indirectly from P.

(2) Subsection (1) does not apply to a disclosure— (a) which is required or permitted by any enactment (including any of sections

35 to 39), (b) which is required by an EU obligation, (c) which is made in pursuance of an order of the court, (d) of information which has already lawfully been made available to the public, (e) which is made for the prevention or detection of crime or the prevention of

anti-social behaviour, (f) which is made for the purposes of a criminal investigation, (g) which is made for the purposes of legal proceedings (whether civil or

criminal),

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(h) which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)),

(i) consisting of the publication of information for the purposes of journalism, where the publication of the information is in the public interest,

(j) which is made with the consent of the person to whom it relates, or (k) which is made for the purposes of—

(i) preventing serious physical harm to a person, (ii) preventing loss of human life,

(iii) safeguarding vulnerable adults or children, (iv) responding to an emergency, or (v) protecting national security.

(3) In subsection (2)(e) “anti-social behaviour” means conduct that— (a) is likely to cause harassment, alarm or distress to any person, or (b) is capable of causing nuisance or annoyance to a person in relation to that

person's occupation of residential premises.

(4) A person commits an offence if— (a) the person discloses personal information in contravention of subsection (1),

and (b) at the time that the person makes the disclosure, the person knows that

the disclosure contravenes that subsection or is reckless as to whether the disclosure does so.

(5) A person who is guilty of an offence under subsection (4) is liable on conviction on indictment to imprisonment for a term not exceeding two years, to a fine or to both.

(6) A person who is guilty of an offence under subsection (4) is liable on summary conviction—

(a) in England and Wales, to imprisonment for a term not exceeding 12 months, to a fine or to both;

(b) in Scotland, to imprisonment for a term not exceeding 12 months, to a fine not exceeding the statutory maximum or to both;

(c) in Northern Ireland, to imprisonment for a term not exceeding 6 months, to a fine not exceeding the statutory maximum or to both.

(7) In the application of subsection (6)(a) to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003 the reference to 12 months is to be read as a reference to 6 months.

(8) This section does not apply to personal information disclosed under section 35, 36 or 38 by the Revenue and Customs.

PROSPECTIVE

42 Information disclosed by the Revenue and Customs

(1) Personal information disclosed by the Revenue and Customs under section 35, 36 or 38 and received by a person may not be disclosed by that person.

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(2) Subsection (1) does not apply to a disclosure which is made with the consent of the Commissioners for Her Majesty's Revenue and Customs (which may be general or specific).

(3) A person who contravenes subsection (1) is guilty of an offence.

(4) It is a defence for a person charged with an offence under subsection (3) to prove that the person reasonably believed—

(a) that the disclosure was lawful, or (b) that the information had already and lawfully been made available to the

public.

(5) Subsections (4) to (7) of section 19 of the Commissioners for Revenue and Customs Act 2005 apply to an offence under subsection (3) as they apply to an offence under that section.

43 Code of practice

(1) The relevant Minister must issue a code of practice about— (a) the disclosure of information under any of sections 35 to 39, and (b) the use of information disclosed under any of those sections.

(2) The code of practice must be consistent with the code of practice issued under section 52B (data-sharing code) of the Data Protection Act 1998 (as altered or replaced from time to time).

(3) A person to whom the code applies must have regard to the code of practice— (a) in disclosing information under any of sections 35 to 39, and (b) in using information disclosed under any of those sections.

(4) The relevant Minister may from time to time revise and re-issue the code of practice.

(5) Before issuing or reissuing the code of practice the relevant Minister must consult— (a) the Information Commissioner, (b) the Commissioners for Her Majesty's Revenue and Customs, (c) the Scottish Ministers, (d) the Welsh Ministers, (e) the Department of Finance in Northern Ireland, and (f) such other persons as the relevant Minister thinks appropriate.

(6) The fact that this section was not in force when consultation of the kind mentioned in subsection (5) took place is to be disregarded in determining whether there has been compliance with that subsection.

(7) The relevant Minister may not issue the code of practice unless a draft of the code has been laid before, and approved by a resolution of, each House of Parliament.

(8) Before reissuing the code the relevant Minister must lay a draft of the code as proposed to be reissued before Parliament.

(9) The relevant Minister may not reissue the code if, within the 40-day period, either House of Parliament resolves not to approve it.

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(10) In subsection (9) “the 40 day period” means— (a) the period of 40 days beginning with the day on which the draft is laid before

Parliament, or (b) if the draft is not laid before each House on the same day, the period of 40

days beginning with the later of the days on which it is laid before Parliament.

(11) For the purposes of subsection (10) no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(12) As soon as is reasonably practicable after issuing or reissuing the code of practice the relevant Minister must lay, or arrange for the laying of, a copy of it before—

(a) the Scottish Parliament, (b) the National Assembly for Wales, and (c) the Northern Ireland Assembly.

(13) In disclosing information under any of sections 35 to 39, a person must have regard to the following codes of practice issued by the Information Commissioner under section 51(3) of the Data Protection Act 1998, so far as they apply to the information in question—

(a) any code which makes provision about the identification and reduction of the risks to privacy of a proposal to disclose information;

(b) any code which makes provision about the information to be provided to data subjects (within the meaning of that Act) about the use to be made of information collected from them.

(14) The duty in subsection (13) does not affect any other requirement for the person to have regard to a code of practice in disclosing the information.

Annotations:

Commencement Information I24 S. 43 in force at 1.10.2017 for specified purposes for E.W.S. by S.I. 2017/765, reg. 3(e)

44 Regulations under this Chapter

(1) Any power to make regulations under this Chapter is exercisable— (a) in the case of regulations made by the relevant Minister or the Welsh

Ministers, by statutory instrument, and (b) in the case of regulations made by the Department of Finance in Northern

Ireland, by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (SI 1979/1573 (NI 12)).

(2) Regulations under this Chapter— (a) may make different provision for different purposes; (b) may contain consequential, supplementary, transitional or transitory provision

or savings.

(3) In the case of— (a) regulations under section 35(3) which amend Schedule 4 so as to add an entry

relating to a person or description of person,

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(b) regulations under section 36(5)(a) which amend Schedule 5 so as to add an entry relating to a person or description of person, or

(c) regulations under section 38(5)(a) which amend Schedule 6 so as to add an entry relating to a person or description of person,

this includes power to make provision in relation to information disclosed by that person or a person of that description which is similar to that made by section 42 in relation to information disclosed by the Revenue and Customs.

(4) Before making regulations under this Chapter the appropriate national authority must consult—

(a) the Information Commissioner, (b) the Commissioners for Her Majesty's Revenue and Customs, (c) each other person who is the appropriate national authority in relation to

regulations under this Chapter, (d) where the appropriate national authority is not the relevant Minister, the

Minister for the Cabinet Office, and (e) such other persons as the appropriate national authority thinks appropriate.

(5) The fact that a power to make regulations under this Chapter was not in force when consultation of the kind mentioned in subsection (4) took place is to be disregarded in determining whether there has been compliance with that subsection.

(6) The appropriate national authority may only make regulations under section 35(7), 36(5)(c) or 38(5)(c) with the consent of the Treasury in a case where the regulations could affect the disclosure of information by the Revenue and Customs.

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

(8) Regulations made under this Chapter by the Scottish Ministers are subject to the affirmative procedure.

(9) A statutory instrument containing regulations made under this Chapter by the Welsh Ministers may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales.

(10) Regulations under this Chapter may not be made by the Department of Finance in Northern Ireland unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly.

(11) If a draft of a statutory instrument containing regulations under section 35(3), 36(5)(a) or (b) or 38(5)(a) or (b) would, apart from this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument.

Annotations:

Commencement Information I25 S. 44 in force at 1.10.2017 for specified purposes by S.I. 2017/765, reg. 3(f) I26 S. 44 in force at 9.3.2018 for specified purposes by S.I. 2018/342, reg. 2(c)

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PROSPECTIVE

45 Interpretation of this Chapter etc

(1) In this Chapter— “the appropriate national authority” means the relevant Minister, subject to

subsections (2) to (7); “enactment” includes—

(a) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;

(b) an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales;

(d) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;

“function” means function of a public nature; “personal information” has the meaning given by section 40(5); “public authority” means a person who exercises functions of a public

nature, subject to subsection (8); “relevant Minister” means the Secretary of State or the Minister for the

Cabinet Office; “the Revenue and Customs” has the meaning given by section 17(3) of the

Commissioners for Revenue and Customs Act 2005.

(2) The Scottish Ministers are the appropriate national authority in relation to— (a) regulations under section 35(3) or 36(5)(a) which add, modify or remove an

entry relating to a person who is, or a description of persons each of whom is, a Scottish body,

(b) regulations under section 36(5)(b) which add or remove a person who is, or a description of persons each of whom is, a Scottish body, and

(c) regulations under section 35(7) or 36(5)(c) which have the effect only of enabling a Scottish body to disclose information for the purposes of an objective which does not relate to a reserved matter (within the meaning of the Scotland Act 1998).

(3) In subsection (2) “Scottish body” means— (a) a person who is a part of the Scottish Administration, (b) a Scottish public authority with mixed functions or no reserved functions

(within the meaning of the Scotland Act 1998), or (c) a person providing services to a person within paragraph (a) or (b).

(4) The Welsh Ministers are the appropriate national authority in relation to— (a) regulations under section 35(3), 36(5)(a) or 38(5)(a) which add, modify or

remove an entry relating to a person who is, or a description of persons each of whom is, a Welsh body,

(b) regulations under section 36(5)(b) or 38(5)(b) which add or remove a person who is, or a description of persons each of whom is, a Welsh body, and

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(c) regulations under section 35(7), 36(5)(c) or 38(5)(c) which have the effect only of enabling a Welsh body to disclose information for the purposes of an objective which could be specified by provision falling within the legislative competence of the National Assembly for Wales.

(5) In subsection (4) “Welsh body” means— (a) a devolved Welsh authority as defined by section 157A of the Government

of Wales Act 2006, or (b) a person providing services to a devolved Welsh authority as defined by that

section.

(6) The Department of Finance in Northern Ireland is the appropriate national authority in relation to—

(a) regulations under section 35(3) which add, modify or remove an entry relating to a person who is, or a description of persons each of whom is, a Northern Ireland body, and

(b) regulations under section 35(7) which have the effect only of enabling a Northern Ireland body to disclose information for the purposes of an objective which relates to a transferred matter (within the meaning of the Northern Ireland Act 1998).

(7) In subsection (6) “Northern Ireland body” means— (a) a Minister within the meaning of the Northern Ireland Act 1998, (b) a Northern Ireland department, (c) a Northern Ireland public authority within the meaning of the Statistics and

Registration Service Act 2007, or (d) a person providing services to a person within paragraph (a), (b) or (c).

(8) A person is not a public authority for the purposes of this Chapter if, apart from this subsection, the person would be a public authority for those purposes merely because the person exercises functions on behalf of another public authority.

(9) References in this Chapter to people living in fuel poverty are to be construed in accordance with section 36(10).

(10) References in this Chapter to people living in water poverty are to be construed in accordance with section 38(10).

(11) The power of the Secretary of State in section 69(2) of the Wales Act 2017 to amend an enactment contained in primary legislation in consequence of any provision of that Act includes power to amend this Chapter, and section 118 so far as relating to this Chapter, in consequence of section 48 (water and sewerage) of that Act.

CHAPTER 2

CIVIL REGISTRATION

46 Disclosure of information by civil registration officials

(1) The Registration Service Act 1953 is amended as follows.

(2) After section 19A insert—

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“19AA Disclosure of information

(1) A civil registration official may, subject to this section, disclose any information held in connection with any of the official's functions to—

(a) a specified public authority (see section 19AB), or (b) any other civil registration official.

(2) A civil registration official may disclose information under this section only if the official is satisfied that the authority or civil registration official to whom it is disclosed (the “recipient”) requires the information to enable the recipient to exercise one or more of the recipient's functions.

(3) A disclosure under this section does not breach any obligation of confidence owed by the civil registration official making the disclosure.

(4) The power to disclose information under this section is subject to any express restriction on disclosure imposed by another enactment (ignoring any restriction which allows disclosure if authorised by an enactment).

(5) This section does not limit the circumstances in which information may be disclosed apart from this section.

(6) “Civil registration official” means— (a) the Registrar General; (b) a superintendent registrar of births, deaths and marriages; (c) a registrar of births and deaths; (d) a registrar of marriages; (e) each of the following in its capacity as a registration authority within

the meaning of Chapter 1 of Part 2 of the Civil Partnership Act 2004 (see section 28 of that Act)—

(i) a county council in England; (ii) the council of any district in England comprised in an area

for which there is no county council; (iii) a London borough council; (iv) the Common Council of the City of London; (v) the Council of the Isles of Scilly;

(vi) a county council in Wales; (vii) a county borough council in Wales.

19AB Specified public authorities

(1) Each of the following public authorities is a “specified public authority” for the purposes of section 19AA—

(a) a Minister of the Crown; (b) the Welsh Government; (c) a department of the government of the United Kingdom; (d) the Greater London Authority; (e) a county council in England; (f) a district council in England; (g) a London borough council;

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(h) the Common Council of the City of London in its capacity as a local authority;

(i) the Council of the Isles of Scilly; (j) a county council in Wales; (k) a county borough council in Wales; (l) an NHS body within the meaning of the National Health Service Act

2006 (see section 275 of that Act).

(2) The Minister may by regulations amend subsection (1) so as to add, modify or remove a reference to a public authority or description of public authority.

(3) Regulations under this section must be made by statutory instrument.

(4) Regulations under this section may— (a) make different provision for different purposes; (b) contain consequential, incidental, supplemental, transitional or

transitory provision or savings.

(5) The provision that may be made by virtue of subsection (4)(b) includes provision amending, repealing or revoking any provision of any enactment.

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

(7) In this section— “enactment” includes an enactment contained in subordinate

legislation within the meaning of the Interpretation Act 1978; “public authority” means a person who exercises functions of a

public nature.

19AC Code of practice

(1) The Registrar General must issue a code of practice about the disclosure of information under section 19AA.

(2) The code of practice must be consistent with the code of practice issued under section 52B (data-sharing code) of the Data Protection Act 1998 (as altered or replaced from time to time).

(3) A civil registration official must have regard to the code of practice in disclosing information under section 19AA.

(4) The Registrar General may from time to time revise and re-issue the code of practice.

(5) Before issuing or revising the code of practice the Registrar General must consult—

(a) the Minister, (b) the Information Commissioner, and (c) such other persons as the Registrar General thinks fit.

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(6) The Registrar General may not issue the code of practice unless a draft of the code has been laid before, and approved by a resolution of, each House of Parliament.

(7) Before reissuing the code the Registrar General must lay a draft of the code as proposed to be reissued before Parliament.

(8) The Registrar General may not reissue the code if, within the 40-day period, either House of Parliament resolves not to approve it.

(9) In subsection (8) “the 40 day period” means— (a) the period of 40 days beginning with the day on which the draft is

laid before Parliament, or (b) if the draft is not laid before each House on the same day, the period

of 40 days beginning with the later of the days on which it is laid before Parliament.

(10) For the purposes of subsection (9) no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(11) In disclosing information under section 19AA, a civil registration official must have regard to the following codes of practice issued by the Information Commissioner under section 51(3) of the Data Protection Act 1998, so far as they apply to the information in question—

(a) any code which makes provision about the identification and reduction of the risks to privacy of a proposal to disclose information;

(b) any code which makes provision about the information to be provided to data subjects (within the meaning of that Act) about the use to be made of information collected from them.

(12) The duty in subsection (11) does not affect any other requirement for the civil registration official to have regard to a code of practice in disclosing the information.”

(3) In section 19B (fees in respect of provision of copies of records etc)— (a) after subsection (1) insert—

“(1A) The Minister may by regulations provide for fees to be payable to a civil registration official in respect of the disclosure by the official of information under section 19AA.”,

(b) in subsections (2) and (3), for “The regulations” substitute “ Regulations under this section ”, and

(4) In section 21(1) (interpretation), after “respectively—” insert—

““civil registration official” has the meaning given by section 19AA;”.

Annotations:

Commencement Information I27 S. 46 in force at 31.7.2017 for specified purposes by S.I. 2017/765, reg. 2(o)

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47 Consequential provision

(1) The Secretary of State may by regulations make the provision in subsection (2) in consequence of any provision made by section 46.

(2) The provision mentioned in subsection (1) is provision amending, repealing or revoking any provision of any enactment passed or made before or in the same Session as this Act.

(3) Regulations under this section must be made by statutory instrument.

(4) Regulations under this section may— (a) make different provision for different purposes; (b) contain transitional or transitory provision or savings.

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

(6) A statutory instrument containing any other regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section “enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.

Annotations:

Commencement Information I28 S. 47 in force at 31.7.2017 for specified purposes by S.I. 2017/765, reg. 2(p)

CHAPTER 3

DEBT OWED TO THE PUBLIC SECTOR

48 Disclosure of information to reduce debt owed to the public sector

(1) A specified person may disclose information held by the person in connection with any of the person's functions to another specified person for the purposes of the taking of action in connection with debt owed to a public authority or to the Crown.

(2) For the purposes of this section and Schedule 7 debt is owed to a public authority or to the Crown if—

(a) a person is required to pay a sum of money to a public authority or to the Crown, and

(b) all or part of that sum remains unpaid after the date on which, or after the end of the period within which, it is required to be paid.

(3) For the purposes of this section and Schedule 7 taking action in connection with debt owed to a public authority or to the Crown includes—

(a) identifying debt of that kind; (b) collecting debt of that kind; (c) bringing civil proceedings as a result of debt of that kind;

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(d) taking administrative action as a result of debt of that kind.

(4) In this Chapter “specified person” means a person specified, or of a description specified, in Schedule 7.

(5) The appropriate national authority may by regulations amend Schedule 7 so as to add, remove or modify an entry relating to a person or description of person.

(6) Regulations under subsection (5) may add an entry relating to a person or a description of person to Schedule 7 only if the following conditions are satisfied.

(7) The first condition is that— (a) the person is a public authority or (as the case may be) each person of that

description is a public authority, or (b) the person provides services to a public authority or (as the case may be) each

person of that description provides services to a public authority.

(8) The second condition is that the person or (as the case may be) a person of that description (“P” in either case)—

(a) requires information from a public authority or a person providing services to a public authority to improve P's ability to identify, manage or recover debt owed to a public authority or to the Crown,

(b) has information which, if shared with a public authority or a person providing services to a public authority, has the potential to improve that authority's or that person's ability to identify, manage or recover such debt, or

(c) has functions relating to the management or recovery of such debt the exercise of which may be improved by the disclosure of information by or to P.

(10) In determining whether to make regulations under subsection (5) in relation to a person or description of person the appropriate national authority must have regard, in particular, to—

(a) the systems and procedures for the secure handling of information by that person or persons of that description, and

(b) in the case of regulations which remove a person from Schedule 7, whether that person, or any person providing services to that person, has had regard to the code of practice under section 52 as required by that section.

(11) Before making regulations under subsection (5) the appropriate national authority must consult—

(a) the Information Commissioner, (b) the Commissioners for Her Majesty's Revenue and Customs, (c) each other person who is the appropriate national authority in relation to

regulations under subsection (5), (d) where the appropriate national authority is not the relevant Minister, the

Minister for the Cabinet Office, and (e) such other persons as the appropriate national authority thinks appropriate.

(12) The fact that this section was not in force when consultation of the kind mentioned in subsection (11) took place is to be disregarded in determining whether there has been compliance with that subsection.

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Annotations:

Commencement Information I29 S. 48 in force at 1.10.2017 for specified purposes for E.W.S. by S.I. 2017/765, reg. 3(g)

PROSPECTIVE

49 Further provisions about power in section 48

(1) Personal information disclosed under section 48 may only be used by the person to whom it is disclosed for the purposes for which it was disclosed, subject to subsection (2).

purpose, (c) for the prevention or detection of crime or the prevention of anti-social

behaviour, (d) for the purposes of a criminal investigation, (e) for the purposes of legal proceedings (whether civil or criminal), (f) for the purposes of safeguarding vulnerable adults or children, or (g) for the purposes of protecting national security.

person's occupation of residential premises.

(4) Subsection (2) does not apply to information disclosed to a person under section 48 by the Revenue and Customs; but such information may be used by that person for purposes other than those for which it was disclosed with the consent of the Commissioners for Her Majesty's Revenue and Customs (which may be general or specific).

(5) For the purposes of this Chapter information is “personal information” if— (a) it relates to and identifies a particular person (including a body corporate), but (b) it is not information about the internal administrative arrangements of a

specified person.

(6) For the purposes of subsection (5) information identifies a particular person if the identity of that person—

(a) is specified in the information, (b) can be deduced from the information, or (c) can be deduced from the information taken together with any other

information.

(7) A disclosure under section 48 does not breach— (a) any obligation of confidence owed by the person making the disclosure, or (b) any other restriction on the disclosure of information (however imposed).

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(8) But nothing in section 48 authorises the making of a disclosure which— (a) contravenes the Data Protection Act 1998, or (b) is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory

Powers Act 2016.

(10) Section 48 does not limit the circumstances in which information may be disclosed apart from that section.

PROSPECTIVE

50 Confidentiality of personal information

(1) Personal information received by a person (“P”) under section 48 may not be disclosed —

(a) by P, or (b) by any other person who has received it directly or indirectly from P.

(2) Subsection (1) does not apply to a disclosure— (a) which is required or permitted by any enactment (including section 48), (b) which is required by an EU obligation, (c) which is made in pursuance of an order of the court, (d) of information which has already lawfully been made available to the public, (e) which is made for the prevention or detection of crime or the prevention of

anti-social behaviour, (f) which is made for the purposes of a criminal investigation, (g) which is made for the purposes of legal proceedings (whether civil or

criminal), (h) which is a protected disclosure for any of the purposes of the Employment

Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)),

(i) consisting of the publication of information for the purposes of journalism, where the publication of the information is in the public interest,

(j) which is made with the consent of the person to whom it relates, (k) which is made for the purposes of safeguarding vulnerable adults or children,

or (l) which is made for the purposes of protecting national security.

person's occupation of residential premises.

(4) A person commits an offence if— (a) the person discloses personal information in contravention of subsection (1),

and

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(b) at the time that the person makes the disclosure, the person knows that the disclosure contravenes that subsection or is reckless as to whether the disclosure does so.

(5) A person who is guilty of an offence under subsection (4) is liable on conviction on indictment to imprisonment for a term not exceeding two years, to a fine or to both.

(6) A person who is guilty of an offence under subsection (4) is liable on summary conviction—

(a) in England and Wales, to imprisonment for a term not exceeding 12 months, to a fine or to both;

(b) in Scotland, to imprisonment for a term not exceeding 12 months, to a fine not exceeding the statutory maximum or to both;

(c) in Northern Ireland, to imprisonment for a term not exceeding 6 months, to a fine not exceeding the statutory maximum or to both.

(8) This section does not apply to personal information disclosed under section 48 by the Revenue and Customs.

PROSPECTIVE

51 Information disclosed by the Revenue and Customs

(1) Personal information disclosed by the Revenue and Customs under section 48 and received by a person may not be disclosed by that person.

(2) Subsection (1) does not apply to a disclosure which is made with the consent of the Commissioners for Her Majesty's Revenue and Customs (which may be general or specific).

(3) A person who contravenes subsection (1) is guilty of an offence.

(4) It is a defence for a person charged with an offence under subsection (3) to prove that the person reasonably believed—

(a) that the disclosure was lawful, or (b) that the information had already and lawfully been made available to the

public.

(5) Subsections (4) to (7) of section 19 of the Commissioners for Revenue and Customs Act 2005 apply to an offence under subsection (3) as they apply to an offence under that section.

52 Code of practice

(1) The relevant Minister must issue a code of practice about— (a) the disclosure of information under section 48, and (b) the use of information disclosed under that section.

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(2) The code of practice must be consistent with the code of practice issued under section 52B (data-sharing code) of the Data Protection Act 1998 (as altered or replaced from time to time).

(3) A specified person must have regard to the code of practice in— (a) disclosing information under section 48, and (b) using information disclosed under that section.