Section 128: Notification of misuse of networks and services, Communications Act 2003

Where OFCOM determine that there are reasonable grounds for believing that a person has persistently misused an electronic communications network or electronic communications services, they may give that person a notification under this section.

A notification under this section is one which—

sets out the determination made by OFCOM;

specifies the use that OFCOM consider constitutes persistent misuse; and

specifies the period during which the person notified has an opportunity of making representations about the matters notified.

That period must not be less than the following—

in an urgent case, seven days; and

in any other case, one month.

A case is an urgent case for the purposes of subsection (3) if OFCOM consider—

that the misuse in question is continuing; and

that the harm it causes makes it necessary for it to be stopped as soon as possible.

For the purposes of this Chapter a person misuses an electronic communications network or electronic communications service if—

the effect or likely effect of his use of the network or service is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety; or

he uses the network or service to engage in conduct the effect or likely effect of which is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety.

For the purposes of this Chapter the cases in which a person is to be treated as persistently misusing a network or service include any case in which his misuse is repeated on a sufficient number of occasions for it to be clear that the misuse represents—

a pattern of behaviour or practice; or

recklessness as to whether persons suffer annoyance, inconvenience or anxiety.

For the purpose of determining whether misuse on a number of different occasions constitutes persistent misuse for the purposes of this Chapter, each of the following is immaterial—

that the misuse was in relation to a network on some occasions and in relation to a service on others;

that different networks or services were involved on different occasions; and

that the persons who were or were likely to suffer annoyance inconvenience or anxiety were different on different occasions.

If he considers that appropriate alternative means of dealing with it exists, the Secretary of State may by order provide that a use of a description specified in the order is not to be treated for the purposes of this Chapter as a misuse of an electronic communications network or electronic communications service.

Section 128: Notification of misuse of networks and services

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