
Telecommunications
(Jersey) Law 2002[1]
A LAW to
abolish the exclusive privilege of the States in telecommunications, to make
new provision about telecommunications that concern Jersey, to enable the
staff, assets and liabilities of the Telecommunications Board to be transferred
to one or more companies and to empower the Jersey Competition Regulatory
Authority to license any such company and other operators with respect to
telecommunications that concern Jersey, and for purposes incidental thereto and
connected therewith
Commencement
[see endnotes]
PART 1
PRELIMINARY
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“apparatus” means
apparatus constructed or adapted for use in transmitting or receiving any
message that is to be or has been conveyed by means of a telecommunication
system or in conveying any message for the purposes of that system, and any
other apparatus designed or adapted for use in running a telecommunication
system including –
(a) any
wire, optical fibre, cable, tube, pipe or other similar thing, including its
casing or coating; and
(b) any
structure, including a kiosk or cabinet (but excluding any other building),
pole, underground chamber or other thing in, on, by or from which any other
apparatus is or may be installed, supported, carried or suspended;
“approval” means
an approval under Article 21;
“Authority” means
the Jersey Competition Regulatory Authority established by Article 2 of
the Competition
Regulatory Authority (Jersey) Law 2001;
“Board” means the
Telecommunications Board referred to in the Telecommunications (Jersey)
Law 1972;
“business”
includes any trade, profession or employment, and any activity or undertaking
of a body of persons whether corporate or unincorporate that is carried on for
gain or reward or in the course of which goods are supplied or services are
provided otherwise than free of charge;
“class licence”
means a licence granted to all members of a class of persons, being a class
specified in the licence;
“company” means
the company (or the companies) prescribed under Article 32;
“contravene”
includes fail to comply with;
“convey” includes,
except in the definition of telecommunication system, transmit, switch and
receive;
“Court” means the Royal
Court;
“debt securities”
means instruments creating or acknowledging indebtedness, being instruments
issued by or in respect of any company, and includes debentures, bonds and
certificates of deposit;
“documents”
includes accounts, deeds, writings and information recorded in any form,
whether or not legible to the naked eye;
“energy” means
electric, magnetic, electro-mechanical, electro-chemical or electro-magnetic
energy;
“function”
includes power, authority and duty;
“land” means any
corporeal hereditament, including a building, and land covered with water, and
also includes any interest in land or water and servitudes or rights in, on or
over land or water;
“licence” means a
licence granted under Part 5;
“licensee” means a
person to whom a licence is granted;
“message” includes –
(a) speech,
music or other sounds;
(b) visual
images;
(c) signals
serving for the impartation, whether as between persons and persons, things and
things or persons and things, of any matter otherwise than in the form of sounds
or visual images; or
(d) signals
serving for the actuation or control of machinery or apparatus;
“Minister” means
the Minister for Sustainable Economic Development;
“modify” includes
add to, amend, alter, replace, revoke and delete;
“OFCOM” means the
Office of Communications established under the Office of Communications Act 2002
of the United Kingdom;
“principal company”
means a company referred to in Article 32(2)(a);
“public telecommunication
system” means any telecommunication system the running of which is
authorized by a licence that contains a condition designating the system as a
public telecommunication system;
“public telecommunications
operator” means a person who is licensed to run a public
telecommunication system;
“run” in relation
to any telecommunication system includes control any apparatus connected to the
telecommunication system;
“securities”, in
relation to any company, includes shares, debt securities and other securities
of that company, whether or not constituting a charge on the assets of that
company, and the right to subscribe for, or to acquire, such securities and any
other rights in connection with such securities;
“send”, in
relation to a message that has been initially transmitted from any place that
is outside Jersey, includes the reception of that message by means of a
telecommunication system or apparatus situated within Jersey coupled with the
immediate retransmission of that message by means of any telecommunication
system so situated;
“service” does not
include a service rendered under a contract of employment;
“signal” includes –
(a) anything
comprising speech, music, sounds, visual images, or communications or data of
any description; and
(b) signals
serving for the impartation of anything between persons, between a person and a
thing or between things, or for the actuation or control of apparatus,
and references to the conveyance of signals include references to
the transmission or routing of signals or of parts of signals;
“subsidiary” means
subsidiary (within the meaning of the Companies (Jersey)
Law 1991) of a principal company;
“telecommunication service”
means –
(a) a
service consisting in the conveyance by means of a telecommunication system of any
message;
(b) a
service consisting in the installation, maintenance, adjustment, repair,
alteration, moving, removal or replacement of apparatus that is or is to be
connected to a telecommunication system; or
(c) a
directory information service, that is to say, the provision by means of a
telecommunication system of directory information for the purpose of
facilitating the use of a telecommunication service referred to in paragraph (a)
and provided by means of that system;
“telecommunication system”
means a system for the conveyance of messages through the agency of energy.[2]
(2) For
the purposes of this Law, apparatus that is situated in Jersey and –
(a) is
connected to but not comprised in a telecommunication system; or
(b) is
connected to and comprised in a telecommunication system that extends beyond
Jersey,
shall be regarded as a telecommunication system and any person who
controls the apparatus shall be regarded as running the system.
(3) A
telecommunication system is connected to another telecommunication system for
the purposes of this Law if it is being used, or is installed or connected for
use, in conveying any message that is to be or has been conveyed by means of
that other system.
(4) Apparatus
is connected to a telecommunication system for the purposes of this Law if it
is being used, or is installed or connected for use, in conveying any message
or energy for the purposes of that system or in transmitting or receiving any
message or energy that is to be or has been conveyed by means of that system.
(5) Notwithstanding
paragraph (3) or (4), the connection to a telecommunication system of any
other telecommunication system or any apparatus shall not be regarded as a
connection for the purposes of this Law if that other telecommunication system
or that apparatus would not be so connected but for its connection to a third telecommunication
system.
(6) For
the purposes of this Law, in the case of a class licence where the members of
the class are not named in the licence, an activity is carried on under the
licence if the activity would be a contravention of Article 2 if it were
not for the fact that the licence is in force.
(7) For
the purposes of this Law, a description or class may be framed by reference to
any circumstances whatsoever.
(8) A
reference in this Law to an enactment of the United Kingdom is a reference to
that enactment as amended from time to time and includes a reference to that
enactment as extended or applied under another enactment of the United Kingdom.
PART 2
REQUIREMENT TO HOLD LICENCE
2 Requirement
for licence
(1) A
person shall not run part or all of a telecommunication system except under a
licence in force in respect of the person’s running of the system.
(2) A
contravention of a condition contained in a licence does not constitute a
contravention of paragraph (1).
(3) A
person shall not run part or all of a telecommunication system except in
accordance with the conditions contained in the licence in force in respect of the
person’s running of the system.
(4) A
person shall not offer to do anything, or hold out as being able and willing to
do anything, which if carried out would be a contravention of paragraph (1).
(5) A
person shall not run a telecommunication system –
(a) if
any telecommunication services are provided by means of the system in
contravention of the conditions contained in the licence in force in respect of
the person’s running of the system;
(b) if
any apparatus that is not approved in accordance with Article 21 is
connected to the system, and that approval is required in respect of that
apparatus as a condition contained in the licence in force in respect of the person’s
running of the system; or
(c) if
any other telecommunication system, or any apparatus, is connected to the first-mentioned
system and that connection is a contravention of the conditions contained in
the licence in force in respect of the person’s running of the first-mentioned
system.
3 Enforcement
of requirement for licence
(1) The
obligation to comply with Article 2(1) is a duty owed to any person who
may be affected by a failure so to comply.
(2) Where
such a duty is owed to any person –
(a) any
breach of the duty causing loss or damage to that person shall be actionable by
that person; or
(b) any
act that, by inducing a breach of that duty or interfering with its
performance, causes loss or damage to that person, and that is done wholly or
partly to achieve that end, shall be actionable by that person.
(3) In
addition –
(a) the
Minister or the Authority may bring civil proceedings, for an injunction or
other appropriate relief, to compel compliance with Article 2; and
(b) a person
who contravenes Article 2(1), (4) or (5) shall be guilty of an offence and
liable to imprisonment for a term not exceeding 12 months or to a fine, or
both.
(4) In
any proceedings (whether civil or criminal) founded on a failure to comply with
Article 2, being a failure constituted by –
(a) running
a part or all of a telecommunication system otherwise than under a licence in
force in respect of the defendant’s running of the system;
(b) running
a telecommunication system when there is connected to it any apparatus that has
not been approved in accordance with Article 21 and that approval is
required as a condition contained in the licence in force in respect of the
defendant’s running of the system; or
(c) running
a telecommunication system when there is connected to it a system or apparatus
that is not authorized to be connected and that authorization is required as a
condition contained in the licence in force in respect of the defendant’s
running of the first-mentioned system,
it shall be a defence for the defendant to prove that the part,
apparatus or system had, without the defendant’s knowledge, been
connected to the telecommunication system in respect of the defendant’s
running of which there is a licence in force.
(5) In
any proceedings (whether civil or criminal) founded on a failure to comply with
Article 2, being a failure constituted by providing a service, it shall be
a defence for the defendant to prove that the service had been provided without
the defendant’s knowledge.
(6) Where
a defence under paragraph (4) or (5) involves an allegation that the
failure to comply was constituted by or was due to the act or default of
another person, the defendant shall not, without the leave of the Court, be
entitled to rely on the defence unless, at least 7 days before the hearing, the
defendant has served on the plaintiff or prosecutor a notice in writing giving
such information identifying the other person or assisting in the
identification of the other person as is then in the defendant’s
possession.
4 Suspension
of requirement
(1) Article 2
is not contravened by an act or omission in respect of which the operation of
that Article has been suspended by an Order in force under this Article at the
time of the act or omission.
(2) After
consultation with the Authority, the Minister, if he or she considers that it
is in the public interest to do so in any circumstances, may by Order suspend
in whole or in part the operation of Article 2 on such terms and subject
to such conditions as he or she sees fit.
(3) Such
a suspension has effect –
(a) on
and from such day (not being a day earlier than the making of the Order); and
(b) for 6
months or, if a shorter period is expressed in the Order, for that period
instead.
(4) If
the Minister amends such an Order so as to extend the period of suspension, the
aggregate period as extended cannot exceed 6 months.
(5) The
power under paragraph (2) may not be exercised more than once in respect
of any set of circumstances, except to revoke or amend the Order made under
that paragraph.
5 Exceptions
to requirement
(1) A
person does not contravene Article 2 just because the person –
(a) runs
a telecommunication system in which the only agency involved in the conveyance
of messages is light and the messages thereby conveyed are so conveyed as to be
capable of being understood by use of the naked eye;
(b) runs
a telecommunication system, not connected to another telecommunication system,
in which all the apparatus comprised therein is situated either –
(i) on
a single set of premises in single occupation, or
(ii) in
a road or rail vehicle, or vessel, aircraft or hovercraft, or in 2 or more road
or rail vehicles, or vessels, aircraft or hovercraft, mechanically coupled
together;
(c) runs
a telecommunication system, not connected to another telecommunication system,
in which –
(i) all
the apparatus is under the person’s control, and
(ii) every
message conveyed by it is conveyed solely for the person’s domestic
purposes;
(d) runs
a hearing aid or connects a hearing aid to a telecommunication system; or
(e) does
anything that the States prescribe by Regulations.
(2) A
person who carries on business does not contravene Article 2 just because,
for the purposes of that business, the person runs a telecommunication system
that is not connected to another telecommunication system and –
(a) only the
person is concerned in the control of so much of the apparatus comprised in the
system as is situated within Jersey;
(b) no
message is conveyed by the telecommunication system by way of rendering a
service to another person; and
(c) no
message is conveyed by the telecommunication system except for the purpose of
its being heard or seen by the person or an employee engaged in the conduct of
the business, or imparting matter to them, or actuating or controlling
machinery or apparatus used in the course of the conduct of the business.
(3) In
this Article –
“hearing aid”
means a telecommunication system or apparatus in the case of which every
conveyance made by it is a conveyance by means of apparatus designed or adapted
to be worn by a person with hearing difficulties and the messages that are
thereby conveyed are sounds, or signals serving to actuate or control apparatus
that emits sounds, and are capable of being received or heard by the ear and
without more.
6 Injunction
The
Court shall have power to grant an injunction in restraint of a continuing or
threatened contravention of Article 2.
PART 3
DUTIES
7 Duties
of Minister and Authority
(1) The
Minister and the Authority shall each have a duty to perform his, her or its
functions under this Law in such manner as each considers is best calculated to
ensure that (so far as in his, her or its view is reasonably practicable) such
telecommunication services are provided, both within Jersey and between Jersey
and the rest of the world, as satisfy all current and prospective demands for
them, wherever arising.[3]
(2) In
so far as it is consistent with paragraph (1) to do so, the Minister and
the Authority shall each –
(a) perform
his, her or its functions under this Law in such manner as each considers is
best calculated to protect and further the short-term and long-term interests
of users within Jersey of telecommunication services and apparatus, and perform
them, wherever each considers it appropriate, by promoting competition among
persons engaged in commercial activities connected with telecommunications in
Jersey;
(b) perform
his, her or its functions under this Law in such manner as each considers is
best calculated to promote efficiency, economy and effectiveness in commercial
activities connected with telecommunications in Jersey;
(c) perform
his, her or its functions under this Law in such manner as each considers is
best calculated to further the economic interests of Jersey;
(d) perform
his, her or its functions under this Law in such manner as each considers is
best calculated to impose a minimum of restriction on persons engaged in
commercial activities connected with telecommunications in Jersey;
(e) in
performing his, her or its functions under this Law, have regard to the need to
ensure that persons engaged in commercial activities connected with
telecommunications in Jersey have sufficient financial and other resources to
conduct those activities; and
(f) in
performing his, her or its functions under this Law, have regard to any special
needs of persons who are disabled or have limited financial resources or have
particular needs.
(3) The
Minister and the Authority shall, in considering whether the services referred
to in paragraph (1) satisfy the demands referred to in paragraph (1),
have regard to –
(a) whether
the services are accessible to and affordable by the maximum number of business
and domestic users;
(b) whether
there is innovation in the services and their provision;
(c) whether
the services are of high quality and are reliable;
(d) whether
users are able to express their views about the provision of the services; and
(e) any
objectives that the States prescribe by Regulations, including, but not limited
to –
(i) the
provision of a universal service, a social service or any form of cross-subsidized
service, and
(ii) the
provision of certain services at uniform tariffs or at tariffs that are cross-subsidized
by other tariffs.
(4) The
States may, by Regulations, modify paragraph (3)(a) to (d).
8 Minister
may direct or guide Authority
(1) The
Minister may, if he or she considers that it is desirable in the public
interest to do so, give to the Authority written directions in respect of the
principles, procedures or policies to be followed by the Authority in relation to
the implementation of any social or environmental policies in respect of
telecommunications.
(2) The
Minister may, if he or she considers that it is desirable in the public
interest to do so, give to the Authority written guidance in respect of the
principles, procedures or policies to be followed by the Authority in relation
to any other matter relating to the performance by the Authority of its
functions under this Law.
(3) It
shall be the duty of the Authority in carrying out any of its functions to comply
with any such direction and to consider (without necessarily complying with)
any such guidance.
(4) The
Minister shall not give directions or guidance under this Article without first
consulting the Authority.
(5) The
Minister shall notify the States of the directions and guidance given by him or
her under this Article and of any comments received by him or her from the
Authority about the directions and guidance.
(6) The
Minister shall take reasonable steps to bring the purport of that notification
to the attention of the public.[4]
(7) A
reference in this Article to the public interest includes a reference to the
economic interests of Jersey.
(8) Paragraph (7)
is included only for the avoidance of doubt.
(9) The
requirement in paragraph (6) shall be taken to have been satisfied by the
publication in the Jersey Gazette of the notification, but this is not the only
way in which that requirement may be satisfied.[5]
9 Authority
to survey industry and consider representations
(1) In
order to facilitate the performance of its functions, the Authority shall, so
far as it considers it practicable to do so, keep under review, and gather
information about, the provision of telecommunication services in Jersey and
elsewhere.
(2) The
Authority shall consider any representation made to it (other than one that is,
in the opinion of the Authority, frivolous or trivial, or more appropriately
dealt with by another person) concerning the installation or running of a
telecommunication system, the provision of telecommunication services or the
supply of apparatus in Jersey, being a representation made by a person who, in
the opinion of the Authority, has an interest in the matter of the
representation.
PART 4[6]
LICENCES: NOTICE, CONSULTATION AND APPEALS
10 Interpretation
(1) For
the purposes of this Part –
“final notice”
means notice under Article 11(4);
“initial notice”
means notice under Article 11(1);
“specified regulatory function”
means any of the following functions of the Authority –
(a) granting
or refusing a licence under Article 14;
(b) giving,
refusing or revoking consent under Article 16(3)(a);
(c) making
or revoking a determination under Article 16(3)(b);
(d) giving
or revoking a direction under Article 16(3)(c);
(e) modifying,
or refusing to modify, a condition under Article 18;
(f) giving,
or deciding not to give, a direction under Article 19;
(g) imposing
a financial penalty under Article 19A;
(h) revoking
a licence under Article 20;
(i) granting,
refusing or revoking an approval under Article 21;
(j) giving,
refusing or revoking consent or a direction, or making or revoking a
determination, under Article 21;
(k) any
other function of the Authority under this Law that the States prescribe by Regulations.[7]
(2) Nothing
in this Part limits or excludes any other avenue of review concerning the
exercise of a specified regulatory function.
(3) The
inclusion (otherwise than by virtue of Article 18) of any condition in a
licence is taken, for the purposes of this Part, to be part of the grant of the
licence.[8]
(4) Paragraph (3)
is included only for the avoidance of doubt.[9]
11 Notice
and consultation
(A1) This
Article applies to a specified regulatory function other than a specified
regulatory function under Article 19 or 19A.[10]
(1) Before
exercising a specified regulatory function the Authority shall give initial
notice –
(a) specifying
the function that it proposes to exercise and the action proposed in that
exercise;
(b) stating
the reason for the proposed exercise;
(c) stating
(whether by specification or by formula) the date when the proposed exercise
would take effect, not being a date earlier than the 29th day after the day
when the notice is published or served (whichever is later) in accordance with
this Article;
(d) specifying
the place where the document giving effect to the proposed exercise may be
inspected; and
(e) specifying
the period within which written representations or objections in respect of the
proposed exercise may be made.
(2) A
document referred to in paragraph (1)(d) shall, where the proposed
exercise of the specified regulatory function –
(a) would
be the grant or making of an instrument, being a licence, approval, consent,
determination, direction or other instrument – include a copy of that
instrument; or
(b) would
be the modification of conditions contained in a licence – include a copy
of the conditions before modification and a copy in draft form of the
conditions as modified.
(3) Any
person may make representations or objections to the Authority about the
proposed exercise of a specified regulatory function within the period
commencing on the earlier of the following dates –
(a) the
date when initial notice (if any) of the proposed exercise is served on any person;
or
(b) the
date when initial notice of the proposed exercise is published in accordance
with this Article,
and ending at midnight on the 28th day after the later of those
dates.
(4) If
any representations or objections are made within that period, the Authority
shall consider them and then give final notice in relation to the proposed
exercise of the specified regulatory function.
(5) The
final notice shall –
(a) refer
to the matters contained in the initial notice;
(b) contain
a summary of the representations and objections;
(c) contain
details of the Authority’s response to them sufficient in content to
enable it to be understood and the reasons for it to be known;
(d) specify
the place where a document setting out the full text of the response may be
inspected if the full text is not contained in the final notice; and
(e) state –
(i) that
the Authority intends to exercise the specified regulatory function, either by
taking the action proposed or by taking some other specified action, and the
date when the proposed exercise of the function will have effect (expressed by
specification or by formula), or
(ii) that
the Authority does not intend to exercise the specified regulatory function.[11]
(6) The
Authority shall give initial or final notice in relation to a proposed exercise
of a specified regulatory function as follows –
(a) in a
case where the proposed exercise relates to a licence, or approval, held by a person
named in the licence or approval, by notice served on the person;
(b) in a
case where the proposed exercise is in response to an application made by a person
not referred to in sub-paragraph (a), by notice served on the applicant;
(c) in
every case (including the case referred to in sub-paragraph (a) or (b)),
by taking reasonable steps to bring the proposed exercise to the attention of
the public, coupled with making available for inspection full details of the
proposed exercise in such place as is specified in taking those steps.[12]
(7) The
Authority shall exercise a specified regulatory function as
follows –
(a) in a
case where the exercise relates to a licence, or approval, held by a person
named in the licence or approval, by notice served on the person;
(b) in a
case where the exercise is in response to an application made by a person not
referred to in sub-paragraph (a), by notice served on the applicant;
(c) in a
case where the exercise relates to a licence, or approval, held or to be held
by a person not named in the licence or approval, by taking reasonable steps to
bring the exercise to the attention of the person, coupled with making available
for inspection full details of the exercise in such place as is specified in
taking those steps.[13]
(8) The
Authority shall, on demand, make a document, full text, or full details,
referred to in this Article available for inspection by members of the public
at reasonable hours and, on demand, supply copies of it, or them, to members of
the public at reasonable cost.[14]
(9) The
exercise of a specified regulatory function shall have effect only in
accordance with such terms of an initial notice as are referred to in paragraph (1)(a)
and –
(a) if a
representation or objection has been made in accordance with paragraph (3),
on a date specified in the relevant final notice, being a date that is later
than the 28th day after the final notice is published or served (whichever is
later) in accordance with paragraph (6); or
(b) if no
representation or objection has been made in accordance with paragraph (3),
on the date stated in the initial notice.
(10) Paragraph (11)
applies where –
(a) after
considering any representations or objections, the Authority decides not to
take the action proposed in the exercise of the specified regulatory function
but to take some other action; and
(b) the
Authority is satisfied that a person or the public in general should be
permitted to make representations or objections in respect of the taking of
that action.[15]
(11) The
Authority may give fresh initial notice under paragraph (1).[16]
(12) The
requirement in paragraph (6)(c) (or (7)(c)) to take reasonable steps to
bring the proposed exercise to the attention of the public (or to bring the
exercise to the attention of the person) shall be taken to have been satisfied
by the publication in the Jersey Gazette of notice of the proposed exercise (or
exercise), but this is not the only way in which that requirement may be
satisfied.[17]
12 Appeals
(1) An
appeal to the Court is available against the exercise of a specified regulatory
function, whether or not the exercise has taken effect, as follows –
(a) if
the exercise consists of the refusal of an application – the applicant
may appeal against the refusal;
(b) if
the exercise consists of the grant of an approval, the holder of the approval
may appeal against the exercise so far as it concerns the imposition of any
condition contained in the approval;
(c) if
the exercise otherwise concerns an approval, the holder of the approval may
appeal against the exercise;
(d) if
the exercise consists of the grant of a licence, any person may appeal against
the grant or against the exercise so far as it concerns the imposition of any
condition contained in the licence;
(e) if
the exercise concerns a licence, excluding an exercise that concerns an
approval, but including –
(i) the
giving, or failure to give, a direction under Article 19, or
(ii) the
imposition of a financial penalty under Article 19A,
or the amount of any such penalty imposed,
any person may appeal against the exercise.[18]
(2) An
appeal is available under this Part only if notice of the appeal is lodged with
the Court after initial notice of the exercise is published in accordance with Article 11
and before the 29th day after –
(a) in a
case where no final notice of the exercise is required to be published, the
date when the initial notice is published in accordance with Article 11;
or
(b) in a
case where final notice of the exercise is required to be published, the date
when the final notice is published in accordance with Article 11,
or within such further period as the Court may allow if it considers
it desirable to do so in the interests of justice.
(3) For
the purposes of this Article, if the Authority has not given initial notice of
the exercise of a specified regulatory function in response to an application
within 56 days (or such longer period as may be agreed in writing between the
relevant applicant and the Authority) after the application has been served on
the Authority, the Authority shall be taken to have given initial notice of a
refusal of the application and to have published that notice in accordance with
Article 11 on the day after the last day of that period.
(4) In
determining an appeal under this Article, the Court is not restricted to a
consideration of questions of law or to the facts contained in an application,
or other information, before the Authority.
(5) When
it determines an appeal under this Article, the Court may –
(a) confirm
the exercise (or proposal) appealed against;
(b) refer
the matter of the exercise back to the Authority for its determination, or
other action, in accordance with the law; or
(c) exercise
a specified regulatory function (and do any incidental thing) in the same way
as the Authority could have done.
(6) The
Court may make such orders as it thinks appropriate, including ancillary orders
and orders as to costs.
13 Delay
in implementation[19]
(1) A
person who lodges notice of an appeal in accordance with this Part against the
exercise of a specified regulatory function may, if the exercise has not taken
effect before the notice is lodged, include in that notice application for an
order for a delay in the exercise.
(2) If
a notice of appeal includes such an application, the exercise shall not take
effect earlier than the seventh day after the Court determines the application.
(3) The
Court shall consider the application as a matter of urgency.
(4) The
Court may grant the application if it considers that there are, prima facie,
reasonable grounds for the appeal and that the balance of convenience in the
case lies in favour of ordering the delay.
(5) The
Court may order that the delay shall cease to have effect at a time after the
date of its order and specified (whether by reference to the date when the
Court determines the appeal or to any other date, event or formula) in its
order.
(6) If
the Court’s determination is to refuse the application, the exercise
shall take effect on the later of the following days –
(a) the
seventh day after the determination;
(b) the
date on which the exercise was to have taken effect according to the notices
given by the Authority about the exercise,
unless the Court decides to allow the appeal against the exercise
before the later of those days.
(7) [20]
PART 5
AUTHORITY AS REGULATOR AND FACILITATOR
14 Power
to grant licence
(1) The
Authority may grant a licence for the running of any telecommunication system
specified in the licence.
(2) The
Authority may refuse a licence on such ground as the Authority sees fit.
(3) The
Authority may refuse a licence in respect of a person, or in respect of a class
of persons that includes a person, if the person has, within the previous 5
years –
(a) failed
to comply with a direction under Article 19 in respect of any licence; or
(b) committed
an offence against Article 54 in relation to any application made by that person
under this Law (including an application on behalf of a class that
includes that person).
(4) The
Authority may refuse a licence if –
(a) such
reasonable fee as the Authority determines has not been paid in respect of an
application for the licence;
(b) such
information as the Authority requires has not been furnished in respect of an
application for the licence; and
(c) such
other requirements as, in the opinion of the Authority, are appropriate
(including, if the Authority so requires, satisfying a third person with
respect to any matter) have not been met in respect of an application for the
licence.
(5) Paragraphs (3)
and (4) do not limit the operation of paragraph (2).
15 Nature
of licence
(1) A
licence may be unconditional or subject to such conditions as are contained in
it.
(2) A
licence shall be in writing, and shall, unless previously revoked, continue in
force for the period specified in the licence.
(3) A
licence containing a condition that designates the system to which the licence
relates as a public telecommunication system may authorize the relevant
licensee to exercise any power contained in Article 26 and specified in
the licence.
(4) A
licence may be granted to a person named in the licence, or to persons (whether
or not named in the licence) of a class that is specified in the licence, but a
licence containing a condition that designates the system to which the licence
relates as a public telecommunication system may only be granted to a person
named in the licence.
16 Licence
conditions
(1) A
licence may contain conditions –
(a) that,
in the opinion of the Authority, are necessary or desirable, including (but not
limited to) conditions relating to, or imposing requirements for, any one or
more of the following –
(i) the
provision by a system of any telecommunication service authorized by the
licence,
(ii) the
provision of a universal service, a social service or any form of cross-subsidized
service,
(iii) standards
of performance,
(iv) mechanisms
for receiving and resolving complaints against the licensee by users within
Jersey of the services provided under the licence and complaints against the
licensee by persons to whom the licensee has refused to provide services under
the licence,
(v) the exercise of the
powers contained in Part 6 that are authorized by the licence;
(b) that,
in the opinion of the Authority, are necessary or desirable, including (but not
limited to) conditions prohibiting, regulating, or requiring, any one or more
of the following –
(i) the
provision by the system that is the subject of the licence of any
telecommunication service or a telecommunication service of any description,
(ii) the
connection to the system that is the subject of the licence of any apparatus or
apparatus of any description,
(iii) the
connection to the system that is the subject of the licence of any other
telecommunication system or of a telecommunication system of any description;
(c) regulating
the terms and conditions that are included in, or requiring that specified
terms and conditions be included in, any contract between the licensee and any,
or any class of –
(i) user
within Jersey of telecommunication services provided under the licence, or
(ii) provider
of telecommunication services;
(d) requiring
a payment to the Authority on the grant of the licence or several payments
during the period when the licence is in force;
(e) requiring
a person to notify the Authority if the person intends to run, or runs, a
telecommunication system under a class licence for which the person makes no
application;
(f) requiring
the licensee to provide to the Authority, in the form and at the times required
by it, such documents, accounts, estimates, returns or other information
relating to activities conducted by the licensee under a licence as the
Authority may specify;
(g) requiring
the licensee to make what, in the opinion of the Authority, is a fair
contribution to the costs of another licensee incurred because the latter is
required to provide a universal service, social service or any form of cross-subsidized
service or to provide a service at uniform tariffs or at tariffs that are cross-subsidized
by other tariffs;
(h) for
the implementation of any direction given to the Authority under Article 8,
or of any measures that the Authority is required to take under an Order under Article 56,
if, in the opinion of the Authority, the direction or measure needs to be
implemented by, or with the participation of, the licensee;
(i) for
the prevention or reduction of anti-competitive behaviour;
(j) that
shall be satisfied before, during or after the exercise of powers under Part 6;
(k) requiring
that it is only approved persons who carry out specified operations (or
operations of a specified class) with respect to the systems that the licence
relates to; or
(l) requiring
that it is only approved apparatus that, in specified circumstances or in all
circumstances, is connected to the systems that the licence relates to.
(2) Conditions
contained in a licence may require the licensee –
(a) not
to do, not to continue to do or not to cease to do anything under the licence
without the prior consent of the Authority;
(b) to
refer for determination by the Authority any specified question, or any
specified class of questions, and to act on such a determination; or
(c) to
comply with any direction given by the Authority in respect of anything to
which the licence relates.[21]
(3) The
Authority has power to –
(a) give,
refuse or revoke its consent as referred to in paragraph (2)(a);
(b) to
make or revoke a determination referred to in paragraph (2)(b); and
(c) to
give or revoke a direction referred to in paragraph (2)(c).[22]
(4) Conditions
contained in a licence may relate to, or impose requirements about –
(a) competition
in relation to telecommunication services, telecommunication systems, apparatus
and telecommunication equipment;
(b) use
and allocation of the electromagnetic spectrum;
(c) numbering
schemes, capacity and allocation, customer databases and the sharing of such
databases;
(d) interconnection
among telecommunication systems, apparatus and telecommunication equipment and
their interoperability and technical standards;
(e) providing
telecommunication services for or on behalf of other providers of
telecommunication services, whether the latter run telecommunication systems or
not;
(f) co-location
and sharing of, and access to, facilities, telecommunication systems, apparatus
and telecommunication services; or
(g) a licensee’s
allowing the use of an intellectual property right held by the licensee.
(5) A
licence may contain conditions –
(a) in
the interests of the security of Jersey or in the interests of encouraging or
maintaining Jersey’s relations with a country or territory; or
(b) in order
to facilitate –
(i) the
discharge of an international obligation, or
(ii) the
attainment of any other object that the Minister has by Order prescribed under Article 56.[23]
(6) A
licence may contain a condition by which the telecommunication system to which
it relates is designated as a public telecommunication system.
17 Licence
fees
(1) Any
payment, or fee, required under this Law to be paid to the Authority in respect
of a licence (including any application fee) may be fixed from time to time at
such amount as is necessary to enable the Authority to recover its costs of
establishment, its short-term costs, and its long-term costs (whether those
costs are actual or projected or direct or apportioned) so far as the costs are
referable to the performance of the functions of the
Authority under this Law, other than its functions under Part 5A.[24]
(2) Such
a fee may be fixed as a percentage of the turnover or profit of a licensee or
members of a class of licensees, or on the basis of some other formula relating
to a licensee or members of a class of licensees, or on any other basis.
(3) Such
a fee shall be recoverable as a civil debt due to the Authority.
18 Modification
of licence conditions
(1) The
Authority may, of its own motion or on the application of any person, modify
any condition contained in a licence by virtue of Article 16.
(2) The
Authority may refuse to modify any condition so contained on such ground as the
Authority sees fit.
(3) The
power to modify a condition contained in a licence includes the power to insert
a new condition or amend or delete an existing condition but any new condition,
or condition as amended –
(a) may
only be a condition that a licence may contain by virtue of Article 16;
and
(b) shall
be taken, as from the date when the modification takes effect, to be a
condition contained in the licence by virtue of that Article. [25]
19 Direction
to comply with licence conditions
(1) Where,
in the opinion of the Authority, a licensee is in contravention of a condition
contained in a licence, the Authority shall give a direction to the licensee to
take steps, or specified steps, to ensure compliance with that condition.
(2) Before
giving a direction under paragraph (1) the Authority shall give
notification to the licensee which –
(a) sets
out the direction which the Authority proposes to give to the licensee under
paragraph (3);
(b) specifies
the period during which the licensee has an opportunity to –
(i) make
representations about the matters notified,
(ii) comply
with any conditions referred to in the notification in respect of which the
licensee remains in contravention, or
(iii) remedy
the consequences of any contraventions referred to in the notification.[26]
(2A) Subject to paragraphs (2B) and (2C), the period
specified in the notification under paragraph (2A)(b)
shall be the period of 28 days beginning with the day after the one on
which notification was given.[27]
(2B) The period specified in the
notification may be shorter if –
(a) the
Authority has reasonable grounds for believing that the contravention in
respect of which it is proposing to make a determination is a repeated
contravention; and
(b) the
Authority has determined that, in those circumstances, a shorter period would
be appropriate.[28]
(2C) The Authority may specify a longer
period than 28 days, or extend the period specified in the notification if
it thinks it appropriate to do so.[29]
(2D) A notification under this
Article –
(a) must
be in writing;
(b) may
be given in respect of more than one contravention; and
(c) if it
is in respect of a continuing contravention, may be given in respect of any
period during which the contravention has continued.[30]
(2E) For the purposes of paragraph (2B)(a), a repeated contravention is a contravention of the
same condition in respect of which the Authority has given a notification or
direction under this Article less than 12 months earlier than the
notification now being given.[31]
(2F) The Authority shall not give a
direction or a notification under this Article if it is satisfied that its
duties under Article 7 preclude the giving of a direction.[32]
(2G) The Authority shall not give a
direction under this Article if it is satisfied that –
(a) the
contravention of the condition is trivial; or
(b) the
licensee is taking reasonable steps to comply with the condition and to remedy
the effects of the contravention.[33]
(3) A
direction shall –
(a) specify
the licence to which it relates;
(b) name
the licensee or specify the class of persons to whom the licence has been granted;
and
(c) specify
the condition contravened.
(4) A
direction –
(a) shall
require the licensee to act or not to act, according to the nature of the
condition and the contravention, in a manner specified in the direction;
(b) may
require the licensee to take steps, or specified steps, to remedy the effects
of the contravention; and
(c) may
be modified at any time by the Authority, but only by giving a new direction in
accordance with this Article.
(5) The
obligation to comply with a direction is a duty owed to any person who may be
affected by the failure to comply with the direction.
(6) Where
a duty is owed under paragraph (5) to any person –
(a) any
breach of the duty causing loss or damage to that person shall be actionable by
that person; and
(b) any
act that, by inducing a breach of that duty or interfering with its
performance, causes loss or damage to that person and that is done wholly or
partly in order to cause the loss or damage to that person shall be actionable
by that person.
(7) In
any proceedings brought against any person under paragraph (6)(a) it shall
be a defence for the person to prove that the person took all reasonable steps
and exercised all due diligence to ensure compliance with the direction.
(8) In
addition to the right of any person to bring civil proceedings as referred to
in paragraph (6), the Authority may bring civil proceedings, for an
injunction or other appropriate relief, to compel compliance with the
direction.
19A Authority may
impose financial penalty[34]
(1) This
Article applies where on a date after the commencement of this Article a
licensee has contravened or is contravening a condition contained in a licence.
(2) The
Authority may, in addition to, or in place of –
(a) giving
a direction under Article 19(1); or
(b) bringing
civil proceedings under Article 19(8) for an injunction or other
appropriate relief to compel compliance with such a direction,
make an order imposing a financial penalty on the licensee for the
contravention.
(3) If,
after the imposition of a financial penalty on a licensee, the licensee
continues to fail to comply with the condition the Authority may impose a
further financial penalty on the licensee.
(4) A
financial penalty imposed on a licensee or, if more than one financial penalty
is imposed, the total of those penalties, must not exceed 10% of the turnover
of the licensee during the period that the licensee was in contravention of the
condition contained in the licence, to a maximum period of 3 years.
(5) The
Minister may by Order prescribe the manner in which the turnover of a licensee
is to be calculated for the purposes of paragraph (4).
(6) A
financial penalty imposed under this Article is recoverable as a civil debt due
to the Authority.
(7) Before
making an order under paragraph (2) the Authority shall give notification
to the licensee which –
(a) sets
out the order which the Authority proposes to make; and
(b) specifies
the period during which the licensee has an opportunity to make representations
about the proposed order.
(8) Subject
to paragraphs (9) and (10), the period specified in the notification under
paragraph (7) must be the period of 28 days beginning with the day
after the one on which notification was given.
(9) The
period specified in the notification may be shorter if –
(a) the
Authority has reasonable grounds for believing that the contravention in
respect of which it is proposing to make the order is a repeated contravention;
and
(b) the
Authority has determined that, in those circumstances, a shorter period would
be appropriate.
(10) The
Authority may specify a longer period than 28 days, or extend the period
specified in the notification if it thinks it appropriate to do so.
(11) A
notification under this Article –
(a) must
be in writing;
(b) may
be given in respect of more than one contravention; and
(c) if it
is in respect of a continuing contravention, may be given in respect of any
period during which the contravention has continued.
(12) For
the purposes of paragraph (9)(a), a repeated contravention is a contravention
of the same condition in respect of which the Authority has given a
notification or direction under Article 19, or imposed a financial penalty
under this Article, less than 12 months earlier than the notification now
being given.
(13) The
Authority shall not make an order under this Article if it is satisfied
that –
(a) the
contravention of the condition is trivial; or
(b) the
licensee is taking reasonable steps to comply with the condition and to remedy
the effects of the contravention.
20 Revocation
of licence
(1) The
Authority may revoke a licence held by a person, or revoke the operation of a
licence in respect of a person who is a member of a class of persons to whom a
licence has been granted, if the person has failed to comply with a direction
given under Article 19 in respect of that or any other licence held by the
person.
(2) A
licence ceases to be in force in respect of a person when it, or its operation
in respect of the person, is revoked under this Article.
21 Approval
of apparatus and contractors
(1) The
Authority may approve apparatus and persons where approval is required as a
condition of a licence, whether or not application is made to the Authority for
the approval.
(2) The
Authority may refuse an approval on such ground as the Authority sees fit.
(3) The
Authority may refuse an approval if –
(a) such
reasonable fee as the Authority determines has not been paid in respect of an
application for the approval;
(b) such
information as the Authority requires has not been furnished in respect of the
application; or
(c) such
other requirements as, in the opinion of the Authority, are appropriate
(including, if the Authority so requires, satisfying a third person with
respect to any matter) have not been met.
(4) Paragraph (3)
does not limit the operation of paragraph (2).
(5) An
approval may be confined to a specified telecommunication system or to a
telecommunication system that falls within a specified class, and
may –
(a) apply
to specified apparatus or apparatus of a specified class; or
(b) authorize
a particular person, or persons of a specified class, to carry out a specified
function or functions of a specified class.
(6) If
it is so expressed, an approval is of no effect unless the conditions contained
in it are complied with.
(7) An
approval may contain such conditions as the Authority sees fit to impose on it,
and they may include a condition that –
(a) a person
shall comply with any direction of the Authority on any matter or class of
matters specified or described in the approval as subject to that direction;
(b) a person
shall not do, not continue to do, or not cease to do, anything under the
approval without the prior consent of the Authority;
(c) a third
person shall be satisfied as to any matter;
(d) a person
shall refer for determination by the Authority any specified question or
specified class of questions; or
(e) a person
shall act on such a determination.
(8) The
approval of apparatus, or of a person, by a person other than the Authority is,
if the Authority so determines, taken to be an approval by the Authority for
the purposes of this Article.
(9) The
Authority has power to grant, refuse or revoke an approval, direction or
consent, or make or revoke a determination, under this Article whenever it sees
fit.
22 General
role of Authority
(1) In
respect of the following matters, the Authority may conduct research, act as
facilitator, co-operate with regulators or providers of telecommunication
services, provide advice, assistance and services and establish or approve
schemes, standards and arrangements –
(a) the
matters listed in Article 16(4)(a) – (g);
(aa) the security of
public electronic communications networks and public electronic communications services
(as defined in Article 24A(1)); and
(b) the
manufacture, sale and use of apparatus.[35]
(2) The
Authority may do those things anywhere and with or for any person anywhere,
whether in Jersey or elsewhere.
(3) The
Authority may require reasonable fees for the provision of any service under
this Article.
(4) Such
a fee shall be recoverable as a civil debt due to the Authority.
23 Power
to require information
(1) The
Authority may, for any purpose connected with the investigation of an offence
under this Law or under Regulations made under this Law or with proceedings for
such an offence or with the exercise of the functions of the Authority under
this Part, by notice in writing –
(a) require
any person to produce to the Authority, or any person appointed by it for that
purpose, any documents specified or described in the notice that are in the
custody, or under the control, of the first-mentioned person and specify the
time, manner and form in which those documents are to be furnished; or
(b) require
any person carrying on any business to furnish to the Authority, and have
verified, any estimates, returns or other information specified or described in
the notice and specify the time, manner and form in which those estimates,
returns or information are to be furnished and verified.
(2) The
Authority may –
(a) keep
a document produced under paragraph (1)(a) for a reasonable time; and
(b) take
copies of such a document.
(3) No
person shall be compelled for any purpose referred to in paragraph (1) to
produce any document that the person cannot be compelled to produce in
proceedings before the Court or, in complying with any requirement to furnish
information, to give any information that the person could not be compelled to
give in evidence in those proceedings.
(4) Any
person who refuses or, without reasonable excuse, fails to comply with the
requirements of a notice under paragraph (1) shall be guilty of an offence
and liable to a fine.[36]
(5) A
person who intentionally alters, suppresses or destroys a document that is the
subject of a notice under paragraph (1) shall be guilty of an offence and
liable to imprisonment for a term not exceeding 5 years or to a fine, or both.
(6) Where
a person fails to comply with the requirements of a notice under paragraph (1)
the Court may, on application by the Authority, make an order requiring
compliance, and the order may provide that the costs of, and incidental to, the
application shall be paid by the person who failed to comply with the notice.
24 Register
(1) The
Authority shall keep a register in which it shall enter details of the
following –
(a) every
licence;
(b) every
exercise of a specified regulatory function (within the meaning of Part 4)
and every notice in respect of that exercise;
(c) every
direction given under Article 19;
(d) every
financial penalty imposed under Article 19A;
(e) every
approval.[37]
(2) In
the case of an approval taken to be an approval by the Authority for the
purposes of Article 21, it shall be sufficient to include in the register
a reference to the approval by citation or brief description or by reference to
the class of approvals in which the approval falls.
(3) The
register shall be open for inspection by the public during the hours determined
by the Authority.
(4) The
Authority shall supply copies or extracts from the register on payment of such
fee as the Authority determines.
PART 5A[38]
SECURITY OF PUBLIC ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES
Division 1 – interpretation
24A Interpretation of
this Part
(1) In this Part (including
Schedules 1, 2 and 3) –
“associated facility”
means a facility, element or service that is available for use, or has the
potential to be used, in association with the use of an electronic
communications network or electronic communications service (whether or not a
network or service provided by the person making the facility, element or
service available) for the purpose of –
(a) making
possible the provision of that network or service;
(b) making
possible the provision of other services provided by means of that network or
service; or
(c) supporting
the provision of those other services;
“communications provider”
means –
(a) a
provider of an electronic communications network; or
(b) a
provider of an electronic communications service;
“content service”
means so much of any service as consists in one or both of the
following –
(a) the
provision of material with a view to its being comprised in signals conveyed by
means of an electronic communications network;
(b) the
exercise of editorial control over the contents of signals conveyed by means of
such a network;
“designated vendor”
means a person designated by a designation notice;
“designated vendor direction”
has the meaning given in Article 24D(1);
“designation notice”
has the meaning given in Article 24B(1);
“electronic
communications network” means –
(a) a
transmission system for the conveyance, by the use of electrical, magnetic or
electro-magnetic energy, of signals of any description (and a
“transmission system” includes a transmission system consisting of
no more than a transmitter used for the conveyance of signals); and
(b) any
of the following as are used, by the person providing the system and in
association with it, for the conveyance of the signals –
(i) apparatus
comprised in the system,
(ii) apparatus
used for the switching or routing of the signals,
(iii) software
and stored data,
(iv) other
resources, including network elements that are not active;
“electronic communications
service” means a service of any of
the following types provided by means of an electronic communications network,
except so far as it is a content service –
(a) an
internet access service;
(b) a
number-based interpersonal communications service;
(c) any
other service consisting in, or having as its principal feature, the conveyance
of signals, such as a transmission service used for machine-to-machine
services;
“internet access service”
means a service that provides access to the internet and thereby connectivity to
virtually all end points of the internet, irrespective of the network
technology and terminal equipment used;
“interpersonal communications
service” means a service that enables direct interpersonal and
interactive exchange of information by means of electronic communications
networks between a finite number of persons, where the persons initiating or
participating in the communication determine its recipient;
“number-based interpersonal
communications service” means an interpersonal communications
service that –
(a) connects
with publicly assigned numbering resources, namely a number or numbers in a
national or international numbering plan; or
(b) enables
communication with a number or numbers in a national or international numbering
plan;
“public
communications provider” means –
(a) a
provider of a public electronic communications network;
(b) a
provider of a public electronic communications service; or
(c) a person who makes available facilities that are
associated facilities by reference to a public electronic communications
network or a public electronic communications service;
“public electronic
communications network” means an
electronic communications network provided wholly or mainly for the purpose of
making electronic communications services available to members of the public;
“public electronic
communications service” means an
electronic communications service that is provided so as to be available for
use by members of the public.
(1A) For the purposes of the definitions
“public electronic communications network” and “public
electronic communications service” in paragraph (1), a service is
made available to members of the public if members of the public are customers,
in respect of that service, of the provider of that service.[39]
(2) In this
Part –
(a) reference to the
provision of an electronic communications network includes reference to its
establishment, maintenance or operation;
(b) if one or more persons
are employed or engaged to provide a network or service under the direction or
control of another person, then a reference to the person by whom an electronic
communications network or electronic communications service is provided is to
be construed as a reference to that other person only;
(c) if one or more persons
are employed or engaged to make facilities available under the direction or
control of another person, then a reference to the person by whom associated
facilities are made available is to be construed as a reference to that other
person only.
Division 2 – Designated vendor directions
24B Designation
notices
(1) The
Minister may issue a notice (a “designation notice”) designating
one or more persons for the purposes of Article 24D.
(2) The
Minister may issue a designation notice only if the Minister considers that the
notice is necessary in the interests of the security of Jersey.
(3) In
considering whether to designate a person under paragraph (1), the matters
to which the Minister may have regard include –
(a) the
nature of the goods, services or facilities that are or might be supplied,
provided or made available by the person;
(b) the
quality, reliability and security of those goods, services or facilities or any
component of them (including the quality, reliability and security of their
development or production, or of the manner in which they are supplied,
provided or made available);
(c) the
reliability of the supply of those goods, services or facilities;
(d) the
quality and reliability of the provision of maintenance or support for those
goods, services or facilities;
(e) the
extent to which and the manner in which goods, services or facilities supplied,
provided or made available by the person are or might be used in Jersey;
(f) the
extent to which and the manner in which goods, services or facilities supplied,
provided or made available by the person are or might be used in other
countries or territories;
(g) the
identity of the persons concerned with –
(i) the
development or production of goods, services or facilities supplied, provided
or made available by the person, or any component of those goods, services or
facilities,
(ii) supplying
or providing those goods or services or making those facilities available,
(iii) providing
maintenance or support for those goods, services or facilities;
(h) the
identity of the persons who own or control, or are associated with –
(i) the
person being considered for designation,
(ii) a
person described in sub-paragraph (g);
(i) the
country or territory in which the registered office or anything similar, or any
place of business, of any of the following is situated –
(i) the
person being considered for designation,
(ii) any
of the persons described in sub-paragraph (g) or (h);
(j) the
conduct of any of the persons described in sub-paragraph (i) as it affects or might affect the national security of
any country or territory;
(k) any
other connection between a country or territory and any of the persons
described in sub-paragraph (g), (h) or (i);
(l) the
degree to which any of the persons described in sub-paragraph (g), (h) or (i) might be susceptible to being influenced or required to
act contrary to the interests of the security of Jersey.
(4) Before
issuing a designation notice, the Minister must, so far as it is reasonably
practicable to do so, consult every person proposed to be designated in the
notice.
(5) A
designation notice must specify the reasons for the designation.
(6) The
requirements in paragraphs (4) and (5) do not apply if or to the extent
that the Minister considers that carrying out the consultation, or specifying
reasons in the notice, would be contrary to the interests of the security of
Jersey.
(7) If
a designation notice is issued the Minister must, if or to the extent that it
is reasonably practicable to do so, send a copy to every person designated in
the notice.
(8) A
reference in this Article to a facility includes a reference to a facility,
element or service that is an associated facility.
24C Review,
variation and revocation of designation notices
(1) The
Minister must review a designation notice from time to time.
(2) The
Minister may (whether or not as a result of a review under paragraph (1)) –
(a) vary
a designation notice;
(b) revoke
a designation notice either wholly or in part.
(3) The
Minister may vary a designation notice only if the Minister considers that the
designation notice as varied is necessary in the interests of the security of
Jersey.
(4) Before
varying a designation notice, the Minister must, so far as it is reasonably
practicable to do so, consult every person proposed to be designated in the
notice as varied.
(5) If
the Minister varies a designation notice, the Minister must, if or to the
extent that it is reasonably practicable to do so, give notice of the variation
to –
(a) every
person designated by the designation notice as it had effect before the
variation; and
(b) every
person designated by the designation notice as varied.
(6) A
notice given under paragraph (5) must specify –
(a) how
the designation notice is varied;
(b) the
reasons for the variation; and
(c) when the
variation, or each of them, comes into force.
(7) The
requirements in paragraphs (4) and (6)(b) do not apply if or to the extent
that the Minister considers that carrying out the consultation, or specifying
reasons in the notice, would be contrary to the interests of the security of
Jersey.
(8) If
the Minister revokes a designation notice, the Minister must, if or to the
extent that it is reasonably practicable to do so, give notice of the
revocation to every person designated by the designation notice as it had effect
before the revocation.
(9) A
notice given under paragraph (8) must specify –
(a) when
the revocation comes into force; and
(b) if
the designation notice is partly revoked, what part of the notice is revoked.
(10) If
the Minister varies or revokes a designation notice, the Minister must review
any designated vendor direction relating to a person designated in the
designation notice before the revocation or variation.
24D Designated vendor
directions
(1) The
Minister may give a direction (a “designated vendor direction”) to
a public communications provider imposing requirements on the provider with
respect to the use, in connection with a purpose mentioned in paragraph (6),
of goods, services or facilities supplied, provided or made available by a
designated vendor.
(2) The
Minister may give a designated vendor direction only if
the Minister considers that –
(a) the
direction is necessary in the interests of the security of Jersey; and
(b) the
requirements imposed by the direction are proportionate to what is sought to be
achieved by the direction.
(3) A
designated vendor direction must specify –
(a) the
designated vendor to which it relates;
(b) the
public communications provider or providers to which the designated vendor
direction is given;
(c) the
reasons for the designated vendor direction; and
(d) when
the designated vendor direction comes into force.
(4) Before
giving a designated vendor direction the Minister must, so far as it is
reasonably practicable to do so, consult –
(a) the
public communications provider or providers to which the proposed designated
vendor direction would be given; and
(b) any
person who would be specified as a designated vendor in the proposed designated
vendor direction.
(5) The
requirements in paragraphs (3)(c) and (4) do not apply if or to the extent
that the Minister considers that specifying reasons in the designated vendor
direction, or carrying out a consultation, would be contrary to the interests
of the security of Jersey.
(6) The
purposes referred to in paragraph (1) are –
(a) in
the case of a provider of a public electronic communications network, the
provision of that network;
(b) in
the case of a provider of a public electronic communications service, the
provision of that service;
(c) in
the case of a person who makes available facilities that are associated
facilities by reference to a public electronic communications network or public
electronic communications service, the making available of those facilities; or
(d) in
the case of a provider of a public electronic communications network or public
electronic communications service, enabling persons to make use of that network
or service.
(7) A
designated vendor direction –
(a) may impose
requirements that apply generally, or in specified circumstances;
(b) may provide
for exceptions to a requirement; and
(c) if it
imposes a requirement to do a thing, must specify the period within which the
thing must be done, which must be a period that appears to the Minister to be
reasonable.
(8) The
requirements that may be imposed by a designated vendor direction include
requirements –
(a) prohibiting
or restricting the use of goods, services or facilities supplied, provided or
made available by a designated vendor specified in the direction;
(b) prohibiting
the installation of those goods or the taking up of those services or
facilities;
(c) about
removing, disabling or modifying those goods or facilities;
(d) about
modifying those services;
(e) about
the manner in which those goods, services or facilities may be used.
(9) A
requirement imposed by a designated vendor direction may, among other things –
(a) relate
to the use of goods, services or facilities in connection with a specified
function of –
(i) the
public electronic communications network provided by the provider,
(ii) the
public electronic communications service provided by the provider, or
(iii) an
associated facility made available by the provider that is an associated
facility by reference to such a network or service;
(b) relate
to the use of goods, services or facilities in a specified part of –
(i) the
public electronic communications network provided by the provider,
(ii) the
public electronic communications service provided by the provider, or
(iii) an
associated facility made available by the provider that is an associated
facility by reference to such a network or service.
(10) A
requirement imposed by a designated vendor direction may make provision by
reference to, among other matters –
(a) the
source of goods, services or facilities that are supplied, provided or made
available by a designated vendor specified in the direction;
(b) when
goods, services or facilities were developed or produced (which may be before
the coming into force of this Article);
(c) when goods,
services or facilities were procured by, or supplied, provided or made
available to, the public communications provider (which may be before the coming
into force of this Article).
(11) A
public communications provider to which a designated vendor direction is given
must comply with the direction.
(12) In
this Article –
(a) reference
to a facility includes reference to a facility, element or service that is an
associated facility;
(b) “specified”
means specified in a designated vendor direction.
24E Review, variation
and revocation of designated vendor directions
(1) The
Minister must review a designated vendor direction from time to time.
(2) The
Minister may (whether or not as a result of a review
under paragraph (1) or a review under Article 24C(10)) –
(a) vary
a designated vendor direction;
(b) revoke
a designated vendor direction, whether wholly or in part.
(3) The
Minister may vary a designated vendor direction only if the Minister
considers that –
(a) the
direction as varied is necessary in the interests of the security of Jersey;
and
(b) the
requirements imposed by the direction as varied are proportionate to what is
sought to be achieved by the direction.
(4) Before
varying a designated vendor direction the Minister must, so far as it is
reasonably practicable to do so, consult –
(a) the
public communications provider or providers that would be subject to the
direction as proposed to be varied; and
(b) every
person who would be affected, as a designated vendor, by the direction as
proposed to be varied.
(5) If
the Minister varies a designated vendor direction, the Minister must give
notice to every public communications provider subject to the direction as
varied specifying –
(a) how
the designated vendor direction is varied;
(b) the
reasons for the variation; and
(c) when
the variation, or each of them, comes into force.
(6) The
requirements in paragraphs (4) and (5)(b) do not apply if or to the extent
that the Minister considers that carrying out a consultation, or specifying
reasons in the notice of variation, would be contrary to the interests of the
security of Jersey.
(7) If
the Minister revokes a designated vendor direction, the Minister must give
notice of the revocation to every public communications provider that was subject
to the direction as it had effect before the revocation,
specifying –
(a) when
the revocation comes into force; and
(b) if
the designated vendor direction is partly revoked, what part of the direction
is revoked.
24F Designated vendor
directions: notification to designated vendor
(1) The
Minister must, if or to the extent that it is reasonably practicable to do so –
(a) if a
designated vendor direction is given, send a copy of the direction to every designated
vendor specified in the direction;
(b) if
notice of the variation of a designated vendor direction is given, send a copy
of the notice to every designated vendor specified in the direction as varied;
(c) if a
notice of the revocation of a designated vendor direction is given, send a copy
of the notice to every designated vendor specified in the direction as it had
effect before the revocation.
(2) The
requirements in paragraph (1) do not apply in the case of a designated
vendor if the Minister considers that sending a copy of the direction, notice
of variation, or notice of revocation to that designated vendor would be
contrary to the interests of the security of Jersey.
(3) The
Minister may exclude from the copy of a direction or notice sent under
paragraph (1) anything the disclosure of which the Minister considers –
(a) would,
or would be likely to, prejudice to an unreasonable degree the commercial
interests of any person; or
(b) would
be contrary to the interests of the security of Jersey.
24G Laying before States Assembly
(1) The
Minister must lay a copy of the following before the States Assembly –
(a) a
designated vendor direction;
(b) a
designation notice;
(c) a
notice of the variation or revocation of a designated vendor direction;
(d) a
notice of the variation or revocation of a designation notice.
(2) The
requirement in paragraph (1) does not apply if the Minister considers that
laying a copy of the direction or notice before the States Assembly would be
contrary to the interests of the security of Jersey.
(3) The
Minister may exclude from what is laid before the States Assembly anything that
the Minister considers if published –
(a) would,
or would be likely to, prejudice to an unreasonable degree the commercial interests
of any person; or
(b) would
be contrary to the interests of the security of Jersey.
24H Compliance with and enforcement of provisions relating
to designated vendor directions
Schedule 1 contains compliance and enforcement provisions in
relation to designated vendor directions, including in relation to Articles 24I and 24J.
24I Requirement not to disclose
(1) The
Minister may require a person listed in column 1 of the following table
not to disclose a matter listed in the corresponding row of column 2 of
the table to any other person without the permission of the Minister.
|
|
A public communications provider that
has been given a designated vendor direction
|
The contents of the designated
vendor direction, or of a part of the designated vendor direction specified
by the Minister
|
A designated vendor that has been
sent a copy of a designated vendor direction under Article 24F
|
The contents of the designated
vendor direction, or of a part of the designated vendor direction specified
by the Minister
|
A designated vendor
|
The contents of the designation
notice, or of a part of the designation notice specified by the Minister
|
A public communications provider that
has been given a notification of contravention under paragraph 5 or 11
of Schedule 1
|
The existence or contents of the notification
of contravention, or of a part of the notification of contravention specified
by the Minister
|
A public communications provider that
has been given a confirmation decision under paragraph 6 or 12 of
Schedule 1
|
The existence or contents of the confirmation
decision, or of a part of the confirmation decision specified by the Minister
|
A person who has been given an
urgent enforcement direction under paragraph 15 of Schedule 1
|
The existence or contents of the
urgent enforcement direction, or of a part of the urgent enforcement
direction specified by the Minister
|
A person who has been given a
notice under paragraph 16(4)(a) or (7) of Schedule 1 in relation to the
confirmation of an urgent enforcement direction
|
The existence or contents of the
notice, or of a part of the notice specified by the Minister
|
A person consulted under Article 24B(4), 24C(4), 24D(4) or 24E(4)
|
The existence of the consultation
and any information disclosed to the person in the consultation, or of a part
of the consultation specified by the Minister and any information disclosed
to the person in that part of the consultation
|
(2) The
Minister may impose a requirement under
paragraph (1) not to disclose a matter only if the Minister considers
that it would be contrary to the interests of the security of Jersey for the
matter to be disclosed except as permitted by the Minister.
(3) If
a person (“P”) is subject to a requirement under paragraph (1)
not to disclose a matter, disclosure of that matter by an employee of P or a
person engaged in P’s business is to be regarded as a disclosure by P,
unless P can show that they took all reasonable steps to prevent that
disclosure.
24J Power of
Minister to require information etc.
(1) The
Minister may require a person falling within paragraph (3) to provide the
Minister with any information that the Minister may reasonably require for the purpose of exercising the Minister’s
functions under Articles 24B to
24G and 24I, and Schedule 1.
(2) The
Minister may require a person falling within paragraph (3) –
(a) to
produce, generate or obtain information for the purpose of providing it under
paragraph (1);
(b) to collect
or retain information that the person would not otherwise collect or retain for
the purpose of providing it under paragraph (1);
(c) to
process, collate or analyse any information held by the person (including
information the person has been required to collect or retain) for the purpose
of producing or generating information to be provided under paragraph (1).
(3) The
persons falling within this paragraph are –
(a) a person
who is or has been a public communications provider;
(b) a
person not falling within paragraph (a) who appears to the Minister to
have information relevant to the exercise of the Minister’s functions
under Articles 24B to 24G
and 24I, and Schedule 1.
(4) The
information that may be required under paragraph (1) includes, in particular,
information about –
(a) the
use, or proposed use, of goods, services or facilities supplied, provided or
made available by a particular person or a particular description of person;
(b) goods,
services or facilities proposed to be supplied, provided or made available by a
particular person or a particular description of person;
(c) goods,
services or facilities proposed to be supplied, provided or made available by a
person who has not, or has not recently, supplied, provided or made available
for use in Jersey –
(i) goods,
services or facilities of that description, or
(ii) any
goods, services or facilities;
(d) the
manner in which –
(i) a
public electronic communications network or a public electronic communications
service is, or is proposed to be, provided, or
(ii) facilities
that are associated facilities by reference to such a network or service are,
or are proposed to be, made available;
(e) future
developments of a public electronic communications network or a public
electronic communications service or associated facilities.
(5) The
Minister may require a person to provide information under this Article only by
serving a notice on the person that –
(a) describes
the required information; and
(b) sets
out the Minister’s reasons for requiring it.
(6) The
Minister may impose a requirement on a person under paragraph (2) only by
serving a notice on the person that –
(a) sets
out the requirement; and
(b) sets
out the Minister’s reasons for imposing it.
(7) The
requirements in paragraphs (5)(b) and (6)(b) do not apply if or to the
extent that the Minister considers that setting out reasons in the notice would
be contrary to the interests of the security of Jersey.
(8) The
Minister must not require the provision of information under this Article unless
the making of a demand for the information is proportionate to the use to which
the information is to be put in the carrying out of the Minister’s
functions under Articles 24B to 24G and 24I, and Schedule 1.
(9) The
Minister must not impose a requirement on a person under paragraph (2) unless
the imposition of the requirement is proportionate to the use to which the
information required to be produced, generated, obtained, collected or retained
(including information required to be produced or generated by processing,
collating or analysing) is to be put in the carrying out of the Minister’s
functions under Articles 24B to 24G and 24I, and Schedule 1.
(10) The
Minister may require a person to provide information under this Article at the
times or in the circumstances specified by the Minister.
(11) A
person must comply with a requirement imposed under this Article in the manner
and within a reasonable period specified by the Minister.
(12) A
requirement to provide information under this Article does not require a person
to disclose information in respect of which a claim to legal professional
privilege could be maintained in legal proceedings.
(13) In
this Article –
(a) a
reference to a facility includes a reference to a facility, element or service
that is an associated facility;
(b) “specified”
means specified in a notice given by the Minister under this Article.
Division 3 – security duties on providers of public electronic
communications networks and services
[not
in force]
Division 4 – appeals
24ZA Right of appeal
(1) A
person affected by a decision of the Authority under this Part, other
than a decision mentioned in paragraph (2), may appeal against
that decision to the Court.
(2) The
decisions in this paragraph are decisions –
(a) to
initiate, bring or carry on civil proceedings;
(b) to
take preliminary steps for the purpose of enabling criminal or civil
proceedings to be initiated;
(c) [not in force]
(d) [not in force]
(e) relating
to the making or revision of a statement of policy under Article 24ZE;
(f) to
require information for the purpose of preparing a report under paragraph 2
of Schedule 1;
(g) to
impose a duty by an inspection notice under paragraph 4 of Schedule 1;
(h) [not in force]
(3) A
person who is required, by a confirmation decision given under
paragraph 12 of Schedule 1, to pay a penalty, may appeal to the Court
against the Minister’s decision to impose that penalty.
(4) An
appeal under this Article must be made by sending the Court a notice of
appeal –
(a) in
accordance with Rules of Court; and
(b) no
later than 28 days after the day on which the decision is made.
(5) A
notice of appeal must set out –
(a) the
provision under which the decision appealed against was taken; and
(b) the
grounds of appeal, which must be set out in sufficient detail to
indicate –
(i) to
what extent (if any) the appellant contends that the decision appealed against
was based on an error of fact or was wrong in law or both, and
(ii) to
what extent (if any) the appellant is appealing against the exercise of a
discretion by the Authority.
(6) When
it determines an appeal under this Article, the Court may –
(a) confirm
the decision appealed against;
(b) quash
the decision appealed against in whole or in part;
(c) if
it quashes the whole or part of the decision –
(i) remit
the matter back to the decision-maker with a direction to reconsider and make a
new decision in accordance with the ruling of the Court, or
(ii) substitute
for the decision any decision the decision-maker could have made.
(7) The
Court may make any orders that it thinks appropriate, including ancillary
orders and orders as to costs.
(8) The
power of the Court to make Rules of Court under Article 13 of the Royal Court (Jersey) Law
1948 includes power to make rules dealing generally with all matters of
procedure and incidental matters arising in relation to appeals under this
Article.
Division 5 – Fees, information and Advice, disclosure,
directions and orders in relation to this Part
24ZB Power to amend this Part by Regulations to provide for Authority to
require payment of fees
(1) The
States may by Regulations amend this Part to provide for the Authority to
require public communications providers to pay fees to the Authority.
(2) Regulations
under paragraph (1) may in particular amend this Law to –
(a) provide
for the Minister by Order to specify –
(i) the
total amount of fees that may be required by the Authority from public
communications providers in a specified period,
(ii) that
the total amount of fees payable by public communications providers must be
calculated by reference to the Authority’s costs of performing its
functions under this Part in relation to a specified period (whether those
costs are actual, projected, direct or apportioned),
(iii) the
amount of a fee to be paid by a public communications provider,
(iv) how
the amount of a fee to be paid by a public communications provider must be
calculated;
(b) specify
the public communications providers, or class of public communications
provider, that may be required to pay fees;
(c) specify
the times at which and the manner in which a fee must be paid;
(d) provide
that a fee required to be paid is recoverable as a civil debt due to the
Authority.
24ZC Power of Authority to require
information
(1) The
Authority may require a person falling within paragraph (3) to provide it
with any information that it reasonably requires for the purposes of carrying
out its functions under this Part including, in particular, information it
requires –
(a) for
the purposes of establishing whether a person, other than the Authority or the
Minister, has breached a requirement under this Part;
(b) for
the purposes of assessing the risk of a security compromise occurring in relation
to a public electronic communications network or a public electronic
communications service;
(c) [not in force]
(d) [not in force]
(e) [not in force]
(f) for
the purposes of carrying out its functions under paragraph 2 or 4 of
Schedule 1;
(g) [not in force]
(h) [not in force]
(2) The
Authority may require a person falling within paragraph (3) –
(a) to
produce, generate or obtain information for the purpose of providing it under
paragraph (1);
(b) to
collect or retain information that the person would not otherwise collect or
retain for the purpose of providing it under paragraph (1);
(c) to
process, collate or analyse any information held by the person (including
information the person has been required to collect or retain) for the purpose
of producing or generating information to be provided under paragraph (1).
(3) The
persons falling within this paragraph are –
(a) a person who is or has been a public communications
provider;
(b) a
person who supplies, or has supplied, electronic communication apparatus;
(c) a
person who makes, or has made, any associated facilities available to others;
(d) a
person not falling within paragraph (a), (b) or (c) who appears to the
Authority to have information relevant to the exercise of its functions under
this Part.
(4) The
information that may be required under paragraph (1) includes, in
particular, information about –
(a) the
use, or proposed use, of goods, services or facilities supplied, provided or
made available by a particular person or a particular description of person;
(b) goods,
services or facilities proposed to be supplied, provided or made available by a
particular person or a particular description of person;
(c) goods,
services or facilities proposed to be supplied, provided or made available by a
person who has not, or has not recently, supplied, provided or made available
for use in Jersey –
(i) goods,
services or facilities of that description, or
(ii) any
goods, services or facilities;
(d) the
manner in which a public electronic communications network or a public
electronic communications service is, or is proposed to be, provided or
facilities that are associated facilities by reference to such a network or
service are, or are proposed to be, made available;
(e) future developments of a public electronic communications
network or a public electronic communications service or associated facilities that
could have an impact on the security of the network or service.
(5) The
Authority may require a person to provide information under this Article only
by serving a notice on the person that –
(a) describes
the required information; and
(b) sets
out the Authority’s reasons for requiring it.
(6) The
Authority may impose a requirement on a person under paragraph (2) only by
serving a notice on the person that –
(a) sets
out the requirement; and
(b) sets
out the Authority’s reasons for imposing it.
(7) The
requirements in paragraphs (5)(b) and (6)(b) do not apply if or to the extent
that the Authority considers that setting out reasons in the notice would be
contrary to the interests of the security of Jersey.
(8) The
Authority must not require the provision of information under this Article
unless the making of a demand for the information is proportionate to the use
to which the information is to be put in the carrying out of its functions
under this Part.
(9) The
Authority must not impose a requirement on a person under paragraph (2) unless
the imposition of the requirement is proportionate to the use to which the
information required to be produced, generated, obtained, collected or retained
(including information required to be produced or generated by processing,
collating or analysing) is to be put in the carrying out of its functions under
this Part.
(10) The
Authority may require a person to provide information under this Article at the
times or in the circumstances as it may specify.
(11) A
person must comply with a requirement imposed under this Article in the manner
and within the reasonable period that the Authority specifies.
(12) A
requirement to provide information under this Article does not require a person
to disclose information in respect of which a claim to legal professional
privilege could be maintained in legal proceedings.
(13) In
this Article –
(a) a
reference to a facility includes a reference to a facility, element or service
that is an associated facility;
(b) “specified”
means specified in a notice given by the Authority under this Article.
24ZD Power of Authority to require information: compliance
and enforcement
Schedule 3 contains compliance and enforcement provisions in
relation to the power of the Authority to require information under
Article 24ZC.
24ZE Power of Authority to require information: statement of policy
(1) The
Authority must prepare and publish a statement of its general policy with
respect to the exercise of its functions under Article 24ZC
and Schedule 3, and may from time to time revise that statement as it
thinks fit.
(2) If
the Authority makes or revises its statement of policy, it must publish that
statement or revised statement in a manner that the
Authority considers appropriate for bringing it to the attention of the persons
who, in the opinion of the Authority, are likely to be affected by it.
(3) The
Authority must have regard to the statement of policy for the time being in
force under paragraph (1) when exercising its functions under Article 24ZC and Schedule 3.
24ZF Information and advice in relation to this Part
(1) The
Authority may publish any information and advice in relation to this Part as it
considers expedient for –
(a) public communications providers;
(b) users
of public electronic communications networks and public electronic
communications services.
(2) Paragraph (1)
does not affect the requirement to publish a statement of policy
under –
(a) [not in force]
(b) Article
24ZE.
(3) Publication
under paragraph (1) may be in such manner as the Authority considers
appropriate.
24ZG Power of Minister and Authority to disclose documents and
information obtained under this Part
(1) The
Minister may, for the purpose of the Minister’s functions under this
Part, disclose any document or information obtained in the exercise of the
Minister’s functions under this Part –
(a) to
the Attorney General;
(b) to a
member of the States of Jersey Police Force or the Honorary Police;
(c) to
the Authority;
(d) to a
law officer of the Crown for Guernsey or of the Crown for the Isle of Man;
(e) to a department of the Government of the United Kingdom or
the Government of any other country or territory;
(f) to
OFCOM;
(g) with
a view to instituting, or otherwise for the purposes of, proceedings for an
offence under this Law; or
(h) with
the consent of a person who, in their own right, is entitled to the information
or to possession of the document, copy or extract, to a third party.[40]
(2) The Authority may, for the purpose of its functions under
this Part, disclose any document or information obtained in the exercise of its
functions under this Part –
(a) to
the Minister;
(b) to a
member of the States of Jersey Police Force or the Honorary Police;
(c) to a department
of the Government of the United Kingdom or the Government of any other country
or territory;
(d) to a
public authority, within the meaning given in Article 1(1) of the Data Protection (Jersey)
Law 2018, not falling within sub-paragraph (a) or (b);
(e) to
OFCOM, and to any other regulator in any other country or territory that
appears to the Authority to perform a similar function;
(f) with
a view to instituting, or otherwise for the purposes of, proceedings for an
offence under this Law; or
(g) with
the consent of a person who, in their own right, is entitled to the information
or to possession of the document, copy or extract, to a third party.
(3) But
the Minister and the Authority may only disclose information under
paragraph (1) or (2) if –
(a) the
person disclosing the information considers the disclosure is
necessary –
(i) in
the interests of the security of Jersey, or
(ii) for
purposes related to the prevention or detection of crime, the investigation of
an offence, or the conduct of a prosecution; and
(b) the
disclosure is relevant and proportionate for the purposes of sub-paragraph (a).
(4) Disclosure
under this Article is not to be treated as a breach of any restriction imposed
by contract, enactment or otherwise.
(5) However,
nothing in this Article authorises disclosure that –
(a) contravenes
the Data Protection
(Jersey) Law 2018; or
(b) is
prohibited by Part 2 of the Regulation of
Investigatory Powers (Jersey) Law 2005.
24ZH Power of Minister to give directions in relation to this Part
(1) The
Minister may give written directions to the Authority in relation to the
performance by the Authority of its functions under this Part.
(2) The
Minister must not give a direction under paragraph (1) unless the Minister
considers that –
(a) the
direction is necessary in the interests of the security of Jersey; and
(b) the
requirements imposed by the direction are proportionate to what is sought to be
achieved by the direction.
(3) The
Authority must comply with a direction given under paragraph (1).
24ZI Orders in relation to calculation of maximum amount of
penalty under this Part
(1) The
Minister may by Order specify the manner in which the turnover of a
person’s business is to be calculated for the purposes of determining the
maximum amount of penalty that may be specified in a notification of
contravention given under –
(a) paragraphs
5 and 11 of Schedule 1;
(b) [not in force]
(c) paragraph
1 of Schedule 3.
(2) An
Order under paragraph (1) may specify any matter the Minister considers
appropriate, including –
(a) the
business by reference to which the turnover is to be calculated; and
(b) the
time at which, or the period for which, the turnover is to be calculated.
PART 6
POWERS RELATING TO LAND
25 Interpretation
(1) In
this Part, “road” means a road, bridge, viaduct or subway that is
repairable at the expense of the States or any parish, and includes a
carriageway, footpath, verge and any other part of such a road, bridge, viaduct
or subway.
(2) Nothing
in or under this Part, except Article 29, confers a right of entry.
25A Relationship with
other enactments[41]
Nothing in or done under this Part shall relieve any person from an
obligation to obtain any permit, consent, permission or authorization required
under the Road Works
and Events (Jersey) Law 2016 or any other enactment.
26 Installation
of apparatus on roads
(1) A
public telecommunications operator may (to the extent that its licence
specifies, and subject to the conditions that it specifies) –
(a) install,
maintain, do work on, remove or operate any apparatus below, on or above any
road; or
(b) break
up and open any road for that purpose.
(2) [42]
27 Removal
of apparatus to allow building
(1) Where
the Board has, before this Article comes into force, installed any apparatus below,
on or above any land or any road adjoining or near any land, and any person
having an interest in that land intends to build upon or enclose it, or in any
manner to improve or alter it or to use it in some manner in which it was not
used when the apparatus was installed and with which the apparatus would
interfere, then that person may by notice advise the company of the nature of
the intended building, enclosure, improvement, alteration or other use of the
land and require the company to remove or alter the apparatus so as to avoid
that interference.
(2) The
company, if satisfied as referred to in paragraph (1) that the apparatus
would cause interference, shall, within 3 months after receiving the notice,
take the action necessary to comply with the requirement.
(3) Nothing
in this Article shall empower any person to obtain the removal or alteration of
any apparatus contrary to the terms of any grant or consent in writing made or
given by the person, or by any person through whom the person takes the estate
or interest.
28 Trimming
trees
Where
the branches of any tree overhang and obstruct or interfere with the
satisfactory operation of any apparatus installed in pursuance of and in
accordance with the Telecommunications (Jersey) Law 1972 and connected to
a public telecommunication system operated by the company, the company may, so
far as possible without injuring the growth of the tree, lop the branches so as
to prevent the obstruction or interference.
29 Power
of entry in relation to existing installations
(1) Where,
in order to perform its functions under Article 27(2) or 28, or to carry
out any work on apparatus installed in pursuance of and in accordance with the Telecommunications
(Jersey) Law 1972, it is necessary for the company to enter any land, an
employee of the company may do so, but only if –
(a) in
every case –
(i) the
employee produces written evidence of the employee’s appointment as such
employee, if so required by a person on the land, and
(ii) the
entry takes place at a reasonable time; and
(b) in
the case of land that is for the time being occupied – not less than 7
days before the day on which entry is made, the occupier has been notified of
the intended entry and the purpose for which entry will be made.
(2) An
employee of the company who enters land in accordance with this Article in order
to perform a function or work as referred to in paragraph (1) may be
accompanied by such persons and equipment as may be necessary for the
performance of the function or work and may leave the equipment on the land
until the function has been performed or the work has been completed.
30 Minister
may acquire land for telecommunications
(1) If
it appears to the Minister that any land should be acquired on behalf of the
public of Jersey for the purposes of facilitating the provision of
telecommunication services by one or more licensees, and the Authority supports
such an acquisition, it shall be lawful for the States to acquire such land by
compulsory purchase on behalf of the public in accordance with the Compulsory Purchase of
Land (Procedure) (Jersey) Law 1961.
(2) For
the purposes of that Law, the Minister shall be the acquiring authority in
relation to the acquisition of any land.
(3) In
assessing the amount of compensation payable to any person in relation to such
a compulsory purchase, the Board of Arbitrators, in addition to acting in
accordance with the Rules set out in Article 10 of that Law, shall, if
satisfied that the value of the land to be acquired has been or will be
enhanced by reason of the expenditure of public money, set off against the
value used to assess the compensation any increase in the value attributable to
the expenditure.
(4) The
power to acquire land by compulsory purchase referred to in paragraph (1)
shall include the power to –
(a) acquire
any interest in land or a servitude or other right in, on or over land by the
creation of a new interest, servitude or right; and
(b) extinguish
or modify any interest in land or a servitude or other right in, on or over
land.
(5) The
States have, in addition to the power under Article 21 of the Compulsory Purchase of
Land (Procedure) (Jersey) Law 1961 to sell any land so acquired, the
power to transfer any interest in such land for the purposes of facilitating
the provision of telecommunication services by licensees.
31 Regulations
about apparatus on land
(1) The
States may make Regulations –
(a) prohibiting,
regulating or facilitating the installation, removal, or maintenance, of
apparatus below, on or above any land;
(b) prohibiting,
regulating or facilitating the doing of work on apparatus below, on or above
any land;
(c) prohibiting
interference with apparatus below, on or above any land; or
(d) for
or with respect to the resolution of disputes concerning the exercise of powers
under this Part, other than the powers under Article 30.
(2) A
reference in this Article to apparatus includes a reference to apparatus
already installed below, on or above land before this Article comes into force
or before any Regulations made under this Article come into force.
PART 7
THE COMPANY
32 Nature
of company
(1) The
States may, in Regulations made under Article 37 or 38, prescribe one or
more companies to which assets, rights and liabilities shall be transferred as
referred to in those Articles.
(2) The
Regulations may prescribe different companies in respect of different assets,
rights or liabilities, but they shall not prescribe any company unless it is,
at the transfer date (within the meaning of Part 8) for those assets,
rights or liabilities –
(a) a
company limited by shares, incorporated under the Companies (Jersey)
Law 1991 and having each of its shares held by the States or held by
one or more nominees on behalf of the States; or
(b) a
subsidiary of such a company.
(3) The
Minister for Treasury and Resources may from time to time appoint such
nominees, but cannot be such a nominee.
(4) Such
a nominee shall hold and deal with securities in a principal company only on
such terms and in such manner as the States direct.
(5) The
Minister for Treasury and Resources may exercise the powers of the States in
their capacity as holder of securities in a principal company (or in any other
capacity regarding a principal company), but not the following powers (which
may be exercised only by the States) –
(a) the
power to dispose of the shares or share rights in a principal company, or
create or dispose of security interests over those shares or share rights or
otherwise charge those shares or share rights;
(b) the
power to authorize the issue of shares or share rights in a principal company
to any person other than the States;
(c) the
power to vote on a resolution to wind up a principal company;
(d) such
other powers as the States have prescribed by Regulations.
(6) In
that exercise of powers, the Minister for Treasury and Resources shall act in
the interests of the States as holder of securities in a principal company.
(7) Nothing
in this Article is to be taken to imply that any liability of the States
because of their interest in a principal company is greater than they have (or
would have) by virtue of being a holder of securities in that company.
(8) In
this Article, “share rights” means, in relation to any shares,
rights to subscribe for, or to acquire, the shares and any other rights in
connection with the shares.
33 States’
holding in company
(1) Where
any assets, rights or liabilities of the Board (within the meaning of Part 8)
are transferred to the company under Part 8, the company –
(a) if a
principal company – shall issue to the States any securities of the
company that the States by Regulations require to be issued; or
(b) if a
subsidiary – shall issue to the principal company any securities of the
subsidiary that the States by Regulations require to be issued.
(2) Such
of those securities as are shares shall be of the nominal value prescribed by
the States by Regulations and shall be issued as fully paid up, partly paid up
or not paid up and treated for the purposes of the Companies (Jersey)
Law 1991 as if any amount paid on them was constituted by the payment
to the issuing company of a corresponding value in cash.
(3) The
States may prescribe classes of those securities and the terms and conditions
to which those securities are subject.
34 Loans
(1) The
States may make loans to a principal company or any of its subsidiaries, subject
to any conditions as to repayment, security or otherwise, including the use to
which the loans may be put, as the States think fit.
(2) The
States may guarantee loans made to a principal company or any of its
subsidiaries by any person.
(3) The
Minister for Treasury and Resources may, out of the income of the States, make
loans to a principal company, subject to any conditions as to repayment,
security or otherwise, including the use to which the company may put the
loans.
(4) The
Minister for Treasury and Resources may, against the income of the States,
guarantee loans made to a principal company by any person.
(5) The
Minister for Treasury and Resources shall not exercise the power under paragraph (3)
or (4) in respect of a principal company unless he or she has reasonable
grounds to believe that, at the moment immediately after that exercise, the sum
of the following totals would not exceed the sum of the gross revenues of the
principal company and its subsidiaries for the year in which that exercise
occurs, as estimated at that moment –
(a) the
total amount outstanding at that moment of loans made under this Law to that
company and its subsidiaries; and
(b) the
total amount outstanding at that moment of such loans to that company and its
subsidiaries as are guaranteed (but not made) under this Law.
PART 8
TRANSFER OF TELECOMMUNICATION ASSETS,
LIABILITIES AND STAFF
35 Interpretation
(1) In
this Part –
“assets” means any
interest in immovable property or movable property of any description, and
includes securities, choses in action and documents;
“employee of the Board”
is defined in paragraph (5);
“liabilities”
means any liabilities, debts or obligations (whether present or future and
whether vested or contingent);
“representative body”
includes a trade union and any other association of employees formed for the
purpose of representing those employees in their relationship with their
employers;
“rights” means any
rights, powers, privileges or immunities (whether present or future and whether
vested or contingent);
“transfer date”
means the day or days prescribed by Regulations under Article 36;
“transferee” means
the person or persons to whom any assets, rights or liabilities are transferred
under this Part;
“transferor” means
the person or persons from whom any assets, rights or liabilities are
transferred under this Part.
(2) For
the purposes of this Part, it makes no difference whether the assets,
liabilities and rights to which it refers are situated in Jersey or in the
United Kingdom or in any other country or in any territory, or arise or subsist
under the Law of Jersey or of the United Kingdom or of any other country or in
any territory.
(3) For
the purposes of this Part, an asset or right of the Board includes an asset or
right of the public (or of the States), being an asset or right to the use or
enjoyment of which the Board is entitled.
(4) For
the purposes of this Part, a liability of the Board includes a liability to
which the public (or the States) is subject (but arising from a benefit or
interest to the use or enjoyment of which the Board is entitled).
(5) For
the purposes of this Part, “employee of the Board”
means –
(a) a person
employed by the Board;
(b) a person
employed by the Policy and Resources Committee, but engaged in the performance
of the functions of the Board; or
(c) such
other person, or person belonging to such class, as the States may prescribe by
Regulations.
(6) For
the purposes of this Part –
(a) an
asset of the Board does not include an asset to the extent that it is used or
enjoyed in the performance of the functions of the Board under Article 5
of the Telecommunications (Jersey) Law 1972;
(b) a
right or liability of the Board does not include a right or liability of the Board
that has arisen in the performance of the functions of the Board under Article 5
of the Telecommunications (Jersey) Law 1972; and
(c) an
employee of the Board does not include an employee who is engaged in the
performance of the functions of the Board under Article 5 of the Telecommunications
(Jersey) Law 1972.
(7) For
the purposes of this Part, to the extent that a contract, or other instrument,
that creates or passes an asset, right or liability of the Board specifies that
it is incapable of transfer or assignment, the instrument is of no effect.
36 Transfer
date
(1) The
States may by Regulations prescribe one or more transfer dates for the purposes
of the provisions of this Law.
(2) A
date prescribed under this Article shall not be a day earlier than the day on
which the Regulations prescribing the day come into force.
37 Transfer
of movables
(1) This
Article does not apply to interests in immovable property.
(2) On
the transfer date, the assets, rights and liabilities of the Board shall be
transferred to the company in accordance with Regulations made by the States.
(3) Such
a transfer may be made on such terms and conditions as are prescribed by the Regulations
and may (as prescribed in the Regulations) consist of the transfer of a
liability, or transfer of an interest in an asset or right, that is less than
the entire liability, or entire interest in the asset or right, of the Board
(or of the public or the States).
(4) The
States may, by Regulations, prescribe any asset, right or liability not subject
to transfer, and an asset, right or liability that is so prescribed is not
transferred under this Article, but this does not prevent its transfer
otherwise than under this Article.
(5) If
it appears to the States expedient so to do for the purpose of removing any
difficulties or uncertainties arising out of the operation of this Article,
they may by Regulations direct that such assets, rights, or liabilities, of the
Board as may be specified in the Regulations –
(a) are
not transferred under this Article or shall be taken not to have been so
transferred; or
(b) are
transferred under this Article or shall be taken to have been so transferred.
(6) Regulations
made under paragraph (5) shall have effect on a date or on dates specified
in the Regulations, but not before the earliest transfer date prescribed for
the purposes of this Article nor more than 12 months after that date.
(7) The
States cannot make Regulations under paragraph (5) more than 12 months
after that transfer date.
38 Transfer
of immovables
(1) On
the transfer date, such assets of the Board as are interests in immovable property
and are prescribed by Regulations made by the States shall be transferred to
the company.
(2) Such
a transfer may be made on such terms and conditions as are prescribed in the Regulations
and may (as prescribed in the Regulations) consist of the transfer of an
interest in property that is less than the entire interest of the Board (or of
the public or the States) in the property.
39 Asset
and liability adjustment
(1) The
States may, for the purposes of ensuring that the financial position of the
company (and of the public, or the States, with respect to the company) is
optimized at the time when Regulations are made under this Article, by Regulations –
(a) cause
to be transferred to the company specified assets, rights or liabilities of the
public (or of the States) other than assets, rights, or liabilities, of the Board;
(b) cause
to be transferred from the company to the public (or the States) specified
assets, rights, or liabilities, of the company;
(c) create,
and cause to be transferred to the company, an asset, right, or liability, of
the public (or of the States); or
(d) create,
and cause to be transferred to the public (or the States), an asset, right, or
liability, of the company.
(2) A
reference in paragraph (1) to a liability includes any liability that
relates to all 3 of the following matters –
(a) the
employment of a person by the States (or by a public authority) at any time
before the person becomes an employee of the company by virtue of this Part;
(b) the person’s
membership of a scheme under the Public Employees
(Retirement) (Jersey) Law 1967; and
(c) the
capital value of any debt relating to the accrual of benefits to the person
under that scheme because of that employment.
(3) Regulations
made under paragraph (1) shall have effect on a date or on dates specified
in the Regulations, but not before the earliest transfer date prescribed for
the purposes of Article 37 nor more than 12 months after that
transfer date.
(4) The
States cannot make such Regulations more than 12 months after that
transfer date.
40 Vesting
in transferee
(1) When
any assets, rights or liabilities are transferred under this Part (including
under Regulations made under Article 39), the following provisions have
effect –
(a) except
to the extent provided in Article 41(3), the assets of the transferor vest
in the transferee by virtue of this Article and without the need for any
further conveyance, transfer, assignment or assurance;
(b) the
rights or liabilities of the transferor become by virtue of this Article the
rights or liabilities of the transferee;
(c) all
proceedings relating to the assets, rights or liabilities commenced before the
transfer by or against the transferor or a predecessor of the transferor and
pending immediately before the transfer are taken to be proceedings pending by
or against the transferee;
(d) any
act, matter or thing done or omitted to be done in relation to the assets,
rights or liabilities before the transfer by, to or in respect of the
transferor or a predecessor of the transferor is (to the extent to which that
act, matter or thing has any force or effect) taken to have been done or
omitted by, to or in respect of the transferee;
(e) a
reference in any enactment, in any instrument made under any enactment or in
any document of any kind to the transferor or a predecessor of the transferor
is (to the extent to which it relates to those assets, rights or liabilities)
taken to include a reference to the transferee.
(2) The
operation of this Article or of Article 37, 38, 39 or 41 (or of any Regulations
made under any of those Articles) is not to be regarded –
(a) as a
breach of contract or confidence or otherwise as a civil wrong;
(b) as a
breach of any contractual provision prohibiting, restricting or regulating the
assignment or transfer of assets, rights or liabilities; or
(c) as
giving rise to any remedy by a party to an instrument, or as causing or
permitting the termination of any instrument, obligation or relationship,
because of a change in the beneficial or legal ownership of any asset, right or
liability.
(3) The
operation of this Article or of Article 37, 38, 39 or 41 (or of any Regulations
made under any of those Articles) is not to be regarded as an event of default
under any contract or other instrument.
(4) No
attornment to the transferee by a lessee from the transferor is required.
(5) A
transfer is subject to any terms and conditions that the States prescribe by Regulations.
(6) No
compensation is payable to any person or body in connection with a transfer to
which Article 37, 38 or 39 applies except to the extent (if any) to which
the Regulations made under that Article so provide.
41 Evidence,
registration and treatment of transfer
(1) The
production of a copy of any Regulations made under Article 37 (or Regulations
relating to movable property made under Article 39) and signed by the Greffier of the States shall, for all purposes, be
conclusive evidence of the transfer to and vesting in, the transferee of any
assets, rights or liabilities to which those Regulations apply.
(2) Nothing
in paragraph (1) affects the value of any other evidence of a transfer
that may be adduced.
(3) Regulations
made under Article 38 or 39 that specify any interest in immovable
property situated in Jersey and are signed by the Greffier
of the States shall be registered in the Public Registry of Contracts and that
registration shall have the like effect as a contract passed before the Royal
Court and the title to any interest in such immovable property specified in
those Regulations shall vest in, belong to and be held by the transferee on and
after the day of that registration.
(4) The
States may, by Regulations, make provision with respect to the values to be
assigned to the assets, rights and liabilities of the Board, and the treatment
of any transfer of them under this Part, in accounts.[43]
(5) The
States may, by Regulations, make provision for the purposes of the values to be
assigned to the assets, rights and liabilities of the Board, and the treatment
of any transfer of them under this Part, as far as they are relevant
to –
(a) the
determination of premiums for the purposes of Article 39 of the Companies (Jersey)
Law 1991;
(b) distributions
for the purposes of Article 114 of the Companies (Jersey)
Law 1991; or
(c) any
other matter under the Companies
(Jersey) Law 1991.
(6) The
States may, by Regulations, make provision for or with respect to any matter
that is consequential, incidental or ancillary to the matters referred to in paragraphs (4)
and (5).
(7) Regulations
may make different provision under paragraphs (4), (5) and (6) for
different purposes, even in respect of the same assets, rights or liabilities
or the same transfer.
42 Stamp
duty
Stamp
duty is not chargeable for or in respect of –
(a) a
transfer that is effected under this Part or, if otherwise effected, that is
prescribed for the purposes of this Article by Regulations made by the States;
or
(b) anything
prescribed by Regulations made by the States as something done in consequence
of such a transfer.
43 Transfer
of staff
(1) If,
immediately before the transfer date, a person is an employee of the Board, on
the transfer date the person shall be transferred to the company and on and
from that date –
(a) the person
shall be an employee of the company;
(b) the person’s
contract of employment shall have effect as if it had originally been made
between the person and the company at the date when it was actually made;
(c) all
rights, powers, duties and liabilities under or in connection with the contract
shall be enforceable or exercisable as if the contract had been originally made
between the employee and the company;
(d) any
collective agreement made by the Board (or otherwise on behalf of the States)
with a representative body recognized by the Board (or recognized otherwise on
behalf of the States), being an agreement that still has effect in respect of
the employee immediately before the transfer, shall continue to have effect in
respect of the employee as if it had been originally made by or on behalf of
the company with that representative body; and
(e) anything
done before the transfer date by or in relation to the Board (or otherwise on
behalf of the States) under or in respect of the contract or the agreement or
in respect of the employee shall be taken to have been done by or in relation
to the company at the time when it was actually done.
(2) However
if, immediately before the transfer date, a person is an employee of the Board,
and at any time before the transfer date, the person has served notice in
writing on the Board that the person refuses to be employed by the company,
then, on the transfer date, unless the person has revoked that
notice –
(a) the person
shall not become an employee of the company; and
(b) the person
shall be taken to have served notice of resignation from his or her employment
as an employee of the Board on the preceding day, and, on the expiry of the
period of notice that applied to that employment on that day, the person’s
employment shall terminate.
44 Collective
agreements about new staff
Any
collective agreement made by the Board (or otherwise on behalf of the States)
with a representative body recognized by the Board (or otherwise on behalf of
the States), being an agreement that is expressed to have effect in respect of
the employment of persons by the company who were not immediately before the
transfer date employees of the Board shall have effect from the transfer date
as if it had been originally made by or on behalf of the company with that
representative body.
45 Saving
of rights under retirement schemes
If
a person was, immediately before becoming an employee of the company by virtue
of this Part, a member of any scheme made under the Public Employees
(Retirement) (Jersey) Law 1967 or any other retirement scheme, then,
on so becoming such an employee –
(a) except
to the extent provided in sub-paragraph (b), the terms of the person’s
membership of the scheme, and the rights and liabilities under that scheme, are
unaffected by the person becoming such an employee; and
(b) notwithstanding
anything in that Law or any other enactment or in any other document or under
any arrangement, the company shall, by the operation of this Article, become the
person’s employer for the purposes of that scheme.
46 New
employees to join retirement scheme
(1) A
principal company shall not employ any person who does not participate in a
scheme under the Public
Employees (Retirement) (Jersey) Law 1967 or the Public Employees
(Pensions) (Jersey) Law 2014.[44]
(2) A
subsidiary of a principal company shall not employ any person who does not
participate in a scheme under the Public Employees
(Retirement) (Jersey) Law 1967 or the Public Employees
(Pensions) (Jersey) Law 2014.[45]
(3) However,
a company is not required to comply with paragraph (1) or (2) if at least
0% of the total number of eligible persons from time to time in the employment
of all principal companies and their subsidiaries participate in one or other
scheme under the Public
Employees (Retirement) (Jersey) Law 1967 or the Public Employees
(Pensions) (Jersey) Law 2014.[46]
(4) For
the purposes of paragraph (3), the actual percentage shall be determined
by –
(a) finding
the sum of the total numbers of persons who are in the employment of the
principal companies and their subsidiaries and, because of that employment,
participate in one or other scheme under the Public Employees
(Retirement) (Jersey) Law 1967 or the Public Employees
(Pensions) (Jersey) Law 2014;
(b) dividing
that sum by the sum of the total numbers of persons who are in such employment
and, because of that employment, are eligible so to participate; and
(c) multiplying
the quotient by 100.[47]
(5) The
States may, by Regulations –
(a) replace
the percentage prescribed by paragraph (3) with any percentage (including
0 or 100); or
(b) amend
any reference to subsidiaries in this Article so that the reference is only to
subsidiaries prescribed by the Regulations or subsidiaries of a class so
prescribed, or to no subsidiaries.
(6) The
requirements of this Article are in addition to any requirement (under any
enactment) relating to the participation of employees in, or withdrawal of
employees from, any scheme under the Public Employees
(Retirement) (Jersey) Law 1967 or the Public Employees
(Pensions) (Jersey) Law 2014.[48]
Part 8A[49]
Functions of authority and OFCOM in relation to telephone numbers
46A Interpretation and operation of this Part
(1) In
this Part –
“Communications Act”
means the Communications Act 2003 of the United Kingdom;
“National Telephone Numbering
Plan” has the meaning given in section 56 of the
Communications Act;
“telephone number”
has the meaning given in section 56(5) of the Communications Act.
(2) This
Part gives functions to OFCOM in relation to telephone numbers in Jersey in
accordance with section 1(2) of the Communications Act.
46B Allocation of telephone numbers by OFCOM
(1) OFCOM
may –
(a) allocate
telephone numbers in Jersey in accordance with the National Telephone Numbering
Plan;
(b) take
the steps it considers necessary or expedient to manage telephone numbers in
Jersey; and
(c) withdraw
the allocation of telephone numbers in Jersey.
(2) The
Authority and OFCOM must together determine procedures relating to telephone
numbers in Jersey, including but not limited to the allocation, management and
withdrawal of telephone numbers.
(3) The
Authority and OFCOM must submit the procedures determined under
paragraph (2) to the Minister for approval.
(4) The
Authority and OFCOM must –
(a) publish
the procedures approved by the Minister; and
(b) exercise
their functions in relation to telephone numbers in Jersey in accordance with
the published procedures.
46C Conditions
binding non-providers
(1) The
Authority may impose the conditions described in paragraph (2) on a person
who –
(a) is
not a communications provider (within the meaning given in Article 24A(1)); and
(b) applies for the allocation of a telephone number, or is
allocated a telephone number.
(2) The
conditions are the conditions that OFCOM may impose in the United Kingdom under
section 59(1) and (2) of the Communications Act.
(3) A
person on whom a condition is imposed under paragraph (1) must comply with
that condition.
(4) The
Authority may enforce the duty under paragraph (3) in civil proceedings –
(a) for
an injunction; or
(b) for
any other appropriate remedy or relief.
(5) But
paragraph (4) does not apply in the case of a person against whom the
obligations contained in a condition are enforceable under Article 19, 19A or 20 by virtue of the person having become a
communications provider.
46D Power to amend this Part by Regulations
The States may by Regulations amend this Part to make further or
different provision about the functions of the Authority and OFCOM in relation
to telephone numbers in Jersey.
PART 9
OFFENCES
47 Damage
to public telecommunication system
(1) Any
person who –
(a) removes,
damages or interferes with apparatus that is installed in a public
telecommunication system;
(b) places
in, against or near apparatus so installed any fire, or explosive (or other
substance) likely to damage or interfere with it; or
(c) does
any act likely to damage or interfere with apparatus so installed,
shall be guilty of an offence and liable to imprisonment for a term of
2 years and a fine.[50]
(2) Nothing
in this Article affects any right of a public telecommunications operator to
recover compensation for any damage, interference or consequential loss.
(3) This
Article is subject to Article 30(12) of the Road Works and Events
(Jersey) Law 2016.[51]
48 Obstruction
of public telecommunications staff
(1) Any
person who obstructs an employee of a public telecommunications operator, being
an employee engaged in installing, maintaining, removing or running a public
telecommunication system, shall be guilty of an offence and liable to
imprisonment for a term of 6 months and to a fine.[52]
(2) Any
person who refuses to leave any premises that are part of or on which is
located a public telecommunication system when required to do so by an employee
of the public telecommunications operator who runs the system, or a person acting
on the operator’s behalf, shall be guilty of an offence and liable to
imprisonment for a term not exceeding 3 months or to a fine not exceeding level
2 on the standard scale, or both.
(3) An
employee of a public telecommunications operator, or a person acting on the
operator’s behalf, may remove from those premises a person who refuses to
leave (as referred to in paragraph (2)), and a police officer shall, on
demand by such an employee or person acting on the operator’s behalf,
remove or assist in removing the person who refuses to leave, and reasonable
force may be exercised to effect that removal.
(4) In
this Article “police officer” means a member of the States of
Jersey Police or of the Honorary Police.
49 Fraudulent
use of telecommunication system
Any
person who dishonestly obtains a telecommunication service provided by means of
a telecommunication system with intent to avoid payment for that service shall
be guilty of an offence and liable to imprisonment for a term not exceeding 2
years or to a fine, or both.
50 Device
for fraudulent purpose
(1) Any
person who has in his or her custody or under his or her control anything that
may be used to obtain, or for a purpose connected with the obtaining of, a
telecommunication service provided by means of a telecommunication system, and
has it in his or her custody or under his or her control with intent to use it
or allow it to be used –
(a) to
obtain the service dishonestly; or
(b) for a
purpose connected with the dishonest obtaining of the service,
shall be guilty of an offence and liable to imprisonment for a term
not exceeding 2 years or to a fine, or both.
(2) Any
person who supplies or offers to supply anything that may be used to obtain, or
for a purpose connected with the obtaining of, a telecommunication service
provided by means of a telecommunication system knowing or believing that the person
to whom it is supplied or offered intends to use it or allow it to be
used –
(a) to
obtain the service dishonestly; or
(b) for a
purpose connected with the dishonest obtaining of the service,
shall be guilty of an offence and liable to imprisonment for a term
not exceeding 2 years or to a fine, or both.
(3) Where
anything referred to in paragraph (1) or (2) may be used to record data, a
reference in that paragraph to the use of the thing includes the use of data
recorded by the thing.
51 Improper
use of telecommunications system[53]
(1) A
person (the “sender”) who, by means of a telecommunication system,
sends a message or other matter that is (or conveys anything that is) grossly
offensive or of an indecent, obscene or menacing character, is guilty of an
offence if either paragraph (2) or (3) applies.
(2) This
paragraph applies if the sender knew or intended the message to be grossly
offensive or of an indecent, obscene or menacing character.
(3) This
paragraph applies if the sender was aware, at the time of sending the message,
of the risk that it would be viewed as grossly offensive or of an indecent,
obscene or menacing character by any reasonable member of the public.
(4) A
person who, for the purpose of causing annoyance, inconvenience or needless
anxiety to another –
(a) sends,
by means of a telecommunication system, a message that the person knows to be
false; or
(b) persistently
makes use of a telecommunication system,
is guilty of an offence.
(5) In
paragraphs (2) to (4), “message” includes a message or other
matter, and anything conveyed by the message.
(6) The
States may make Regulations amending this Article if it is considered necessary
to do so to take account of changes in technology, and such Regulations may
contain –
(a) provision
consequentially amending or modifying, for the purposes of this Article, an
expression used or defined in this Law; and
(b) incidental,
supplemental or consequential provision.
(7) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term of 2 years and to a fine.
52 Interference
with public telecommunication messages
(1) Any
person engaged in the running of a public telecommunication system, who
otherwise than in the course of the person’s duty
intentionally –
(a) discloses
to any person the contents of any message conveyed by means of the system
(where the latter person is not the intended recipient of the message);
(b) discloses
any information concerning the use made of a telecommunication service provided
by means of that system to any person other than the person who actually made
that use; or
(c) modifies,
or interferes with the contents of, a message conveyed by means of the system,
shall be guilty of an offence and liable to imprisonment for a term of
12 months and to a fine.[54]
(2) Paragraph (1)
shall not apply to any disclosure made –
(a) in
accordance with the order of any court or for the purposes of any criminal
proceedings;
(b) in
accordance with any warrant, authorization or notice issued, granted or given
under any provision of the Regulation of
Investigatory Powers (Jersey) Law 2005;
(c) in
compliance with any requirement imposed (apart from that Law) in consequence of
the exercise by any person of any power conferred by or under any enactment
exercisable by that person for the purpose of obtaining any document or other
information; or
(d) in
pursuance of any duty under the Regulation of
Investigatory Powers (Jersey) Law 2005 or under Part 11 of the Police Procedures and
Criminal Evidence (Jersey) Law 2003 to provide information or produce
any document to the Investigatory Powers Commissioner appointed or the
Investigatory Powers Commissioner established under the Regulation of
Investigatory Powers (Jersey) Law 2005.[55]
53 Defacing
public telecommunication system
Any
person who without lawful authority affixes any placard, advertisement, notice,
list, document, board or other thing in or on, or paints or tars, any telephone
kiosk, telegraph post or any other property belonging to or used by or on
behalf of a public telecommunications operator for the purposes of providing a
telecommunication service or in any way disfigures any such kiosk, post or
other property shall be guilty of an offence and liable to imprisonment for a
term not exceeding 6 months or to a fine not exceeding level 3 on the
standard scale, or both.
54 False
information
(1) Any
person who knowingly or recklessly provides the Authority, the Minister, or any
other person entitled to information under this Law, or under Regulations or an
Order made under this Law, with information that is false or misleading in a
material particular shall be guilty of an offence if the information is
provided –
(a) in
purported compliance with a requirement imposed under this Law or under Regulations
or an Order made under this Law; or
(b) otherwise
than as mentioned in sub-paragraph (a) but in circumstances in which the person
providing the information intends, or could reasonably be expected to know,
that the information would be used by the Authority or the Minister for the
purpose of carrying out their functions under this Law.[56]
(2) Any
person who knowingly or recklessly provides the Authority, the Minister, or any
other person entitled to information under this Law, with information that is
false or misleading in a material particular shall be guilty of an offence if
the information is provided in connection with an application under this Law.[57]
(3) A
person who is guilty of an offence against this Article shall be liable to
imprisonment for a term not exceeding 5 years or a fine, or both.
55 General
provisions as to offences
(1) Where
an offence under this Law, or under Regulations or an Order made under this Law,
committed by a limited liability partnership or body corporate is proved to
have been committed with the consent or connivance of, or to be attributable to
any neglect on the part of –
(a) a person
who is a partner of the partnership, or director, manager, secretary or other
similar officer of the body corporate; or
(b) any person
purporting to act in any such capacity,
the person shall also be guilty of the offence and liable in the
same manner as the partnership or body corporate to the penalty provided for
that offence.
(2) Where
the affairs of a body corporate are managed by its members, paragraph (1)
shall apply in relation to acts and defaults of a member in connection with the
member’s functions of management as if the member were a director of the
body corporate.
(3) Any
person who aids, abets, counsels or procures the commission of an offence under
this Law shall also be guilty of the offence and liable in the same manner as a
principal offender to the penalty provided for that offence.
(4) An
offence may be committed under this Law whether or not the act or omission that
constitutes the offence, or is an ingredient of the offence, causes any
interruption to, or prevention of, the provision of a telecommunication service
by means of a telecommunication system.
PART 10
MISCELLANEOUS
56 Orders
in interests of security etc.
(1) The
Minister may make Orders with respect to the functions of the Authority if he
or she considers it necessary or expedient to do so –
(a) in
the interests of the security of Jersey or in the interests of encouraging or
maintaining Jersey’s relations with a country or territory; or
(b) in order –
(i) to
discharge, or facilitate the discharge of, an international obligation,
(ii) to
attain, or facilitate the attainment of, any other object that the Minister
considers it necessary or expedient to attain in view of Jersey’s being a
member of an international organization or a party to an international
agreement, or
(iii) to
enable Jersey to become a member of such an organization or a party to such an
agreement.[58]
(2) An
Order under this Article may, in particular, require the Authority –
(a) to do
or not to do a particular thing;
(b) to
ensure that a particular thing is done or not done; or
(c) to
recognize persons or classes of persons (as public telecommunications operators
or otherwise) for any purpose in connection with an international obligation,
international organization or international agreement.
(3) The
Minister shall consult the Authority before making an Order under this Article.[59]
(4) To
the extent of any inconsistency between the functions of the Authority under
the other provisions of this Law and any requirement of an Order under this Article,
the functions are modified so that the Authority shall perform them
consistently with the requirement.
57 Modifications
of Law in interests of security etc.
The
States may, by Regulations, modify the provisions of this Law if the States
consider it necessary or expedient to do so –
(a) in
the interests of the security of Jersey or in the interests of encouraging or
maintaining Jersey’s relations with a country or territory; or
(b) in order –
(i) to
discharge, or facilitate the discharge of, an international obligation,
(ii) to
attain, or facilitate the attainment of, any other object that the States
consider it necessary or expedient to attain in view of Jersey’s being a
member of an international organization or a party to an international
agreement, or
(iii) to
enable Jersey to become a member of such an organization or a party to such an
agreement.
58 Publication,
advice and assistance
(1) The
Authority may publish such information and advice as it considers expedient
to –
(a) providers
of telecommunication services; or
(b) users
of telecommunication services.
(2) The
Authority may also prepare any report that it considers appropriate with
respect to any matter relevant to the functions of the Authority.
(3) If
the Authority considers it expedient to do so or is asked by the Minister to do
so, it shall provide information, advice and help to the Minister regarding any
matter concerning telecommunications.
(4) Publication
under this Article (including the provision of something under paragraph (3))
may be in such form and manner as the Authority considers appropriate.
59 Annual
report of Authority
(1) The
Authority shall, in addition to the report that it is required to prepare under
the Competition
Regulatory Authority (Jersey) Law 2001 or as part of that report,
prepare a report in respect of each of its financial years –
(a) generally
surveying developments that are relevant to its functions under this Law;
(b) reviewing
competition in, and restrictions on, the supply of telecommunication services
in Jersey; and
(c) dealing
with such other matters as the Minister requires.
(2) The
Authority shall provide the Minister with a report prepared under this Article
as soon as practicable after the end of the financial year to which the report
relates, but in no case later than 4 months after the end of that year.
(3) The
Minister shall lay a copy of the report so provided before the States as soon
as practicable after the Minister receives the report.
(4) In
this Article, “financial year” has the same meaning as in the Competition Regulatory
Authority (Jersey) Law 2001.
60 Exclusion
of personal material in publications and annual reports
(1) So
far as practicable the Authority shall ensure the exclusion from anything
published under Article 58 (including anything published by being provided
under Article 58(3)), and any report prepared under Article 59, of
any matter relating to the affairs of a person if the Authority considers that
its publication would or might seriously and prejudicially affect the person’s
interests.
(2) Paragraph (1)
does not apply if –
(a) the person
concerned consents to publication of the matter; or
(b) the
Authority considers that the public interest in the publication of the matter
(whether or not the publication is to a significant portion of the public)
would outweigh the effect of the publication on the interests of the person
concerned.
61 Limit
on disclosure in general
(1) A
person shall not disclose any information with respect to a person or business
during the lifetime of that person or so long as that business continues,
without the consent of that person or the person for the time being carrying on
that business, if the information –
(a) has
been obtained under the provisions of this Law; and
(b) relates
to the private affairs of the person or to the business.
(2) Any
person who discloses information in contravention of this Article shall be guilty
of an offence and liable to imprisonment for a term not exceeding 2 years or to
a fine, or both.
(3) Paragraph (1)
shall not apply to the disclosure of information –
(a) for
the purpose of facilitating the performance by the Minister of his or her functions
under this Law;
(b) for
the purpose of facilitating the performance by the Authority of its functions
under this or any other Law;
(c) to
enable the holder of a licence to run a public telecommunication system to
comply with the licence;
(ca) to enable the
provider of a public electronic communications network or a public electronic
communications service (as defined in Article 24A(1))
to provide that network or service;
(d) in
connection with the investigation of any criminal offence or for the purposes
of criminal proceedings, or generally in the interests of the prevention or
detection of crime, whether in Jersey or elsewhere;
(e) in
connection with the discharge of an international obligation of Jersey;
(f) to
assist any authority that appears to the Authority to exercise, outside Jersey,
functions corresponding to some or all of those of the Authority;
(g) for
the purposes of civil proceedings arising under this Law;
(h) to
comply with a direction of the Court;
(i) for
the purpose of enabling or assisting the Jersey Financial Services Commission
or the Minister for Treasury and Resources to exercise any powers relating to
companies or financial services of any kind, being powers conferred by any
enactment;
(j) for
the purpose of enabling or assisting an inspector appointed under the Companies (Jersey)
Law 1991 to carry out the inspector’s functions;
(k) for
the purpose of enabling or assisting the Viscount to carry out the
Viscount’s functions under the Bankruptcy (Désastre) (Jersey) Law 1990;
(l) for
the purpose of facilitating the carrying out by any person of the person’s
functions under the Health
and Safety at Work (Jersey) Law 1989; or
(m) for such
other purposes as the States may by Regulations prescribe.[60]
(4) The
States may, by Regulations, modify paragraph (3)(a) – (l).
(5) This
Article does not apply in relation to disclosure by the Minister or the
Authority of any document or information obtained in the exercise of their
functions under Part 5A.[61]
62 Entry
and search of premises
(1) If,
on application made by a police officer supported by information on oath, the
Bailiff, a Jurat or a magistrate is satisfied that there are reasonable grounds
for believing that an offence under Article 3 has been, or is being,
committed and that there is evidence of the commission of the offence to be
found on premises specified in the application the Bailiff, Jurat or magistrate
may issue a warrant authorizing a police officer to enter and search the
premises within one month of the date of the issue of the warrant.
(2) The
warrant may, but need not, authorize the officer to use such force as is
reasonably necessary to make that entry.
(3) A
police officer who enters premises by authority under this Article –
(a) may,
if so authorized by a warrant under this Article, use such force as is
reasonably necessary to make that entry;
(b) may
take with the police officer such other persons as may be necessary;
(c) shall,
if any person on the premises so requires, show proof of the police officer’s
authority as such an officer and show the warrant authorizing the entry; and
(d) on
leaving any unoccupied premises so entered, shall leave them as effectively
secured against trespassers as the police officer found them.
(4) Any
person who obstructs a police officer in the execution of a warrant issued
under this Article commits an offence and is liable to a term of imprisonment
not exceeding 6 months or a fine, or both.
63 Limitation
of civil liability
(1) A
person or body to whom this Article applies shall not be liable in damages for
anything done or omitted in the discharge or purported discharge of any
functions under this Law or under Regulations or an Order made under this Law
unless it is shown that the act or omission was in bad faith.
(2) This
Article applies to –
(a) the
States;
(b)
(c) the
Minister; and
(d) any
person who is, or is acting as, an officer, employee or agent in an
administration of the States for the Minister is assigned responsibility, or
who is performing any duty or exercising any power on behalf of the Minister.[62]
(3) A
person is not entitled to claim or to receive any compensation in respect of
any change in the value of any licence or approval, or of any right arising
under this Law, being a change resulting from the modification of a licence
condition, the revocation of a licence or of an approval or otherwise resulting
directly or indirectly from the exercise of a function under Part 5.
(4) Paragraph (3)
is included for the avoidance of doubt and does not limit the operation of paragraph (1).
64 Service
of notices etc.
(1) A
notice required by this Law to be given to the Authority shall not be regarded
as so given until it is in fact received by the Authority.
(2) A
notice or other document required or authorized under this Law or under Regulations
or an Order made under this Law to be given to the Authority may be given by
facsimile, other electronic transmission, or by any other means by which the
Authority may obtain or recreate the notice or document in a form legible to
the naked eye.
(3) Any
notice, direction or other document required or authorized by or under this Law
or under Regulations or an Order made under this Law to be given to or served
on any person other than the Authority may be given or served on the person in
question –
(a) by
delivering it to the person;
(b) by
leaving it at the person’s proper address;
(c) by
sending it by post to the person at that address; or
(d) by
sending it to the person at that address by facsimile, other electronic
transmission, or by any other means by which the person may obtain or recreate
the notice, direction or document in a form legible to the naked eye.
(4) Any
such notice, direction or other document may –
(a) be
given to or served on a company incorporated in Jersey by being delivered to
the company’s registered office; or
(b) be
given to or served on a partnership, company incorporated outside Jersey, or
unincorporated association –
(i) by
being given to or served (in any case) on a person who is a principal person in
relation to it, or on its secretary, clerk or other similar officer or any person
who purports to act in any such capacity, by whatever name called, or (in the
case of a partnership) on the person having the control or management of the
partnership business, or
(ii) by
being delivered to the registered or administrative office of any such person.
(5) For
the purposes of this Article and of Article 7 of the Interpretation (Jersey)
Law 1954, the proper address of any person to or on whom a document is
to be given or served by post shall be the person’s last known address,
except that –
(a) in
the case of a company (or person referred to in paragraph (4)(b)(i) in relation to a company incorporated outside Jersey) –
it shall be the address of the registered or principal office of the company in
Jersey; and
(b) in
the case of a partnership (or person referred to in paragraph (4)(b)(i), or who is a principal person, in relation to a
partnership) – it shall be the address of the principal office of
the partnership in Jersey.
(6) If
the person to or on whom any notice, direction or other document referred to in
paragraph (3) is to be given or served has notified the Authority of an
address within Jersey, other than the person’s proper address within the
meaning of paragraph (5), as the one at which the person or someone on the
person’s behalf will accept documents of the same description as that
document, that address shall also be treated for the purposes of this Article
and Article 7 of the Interpretation (Jersey)
Law 1954 as the person’s proper address.
(7) If
the name or the address of any owner, lessee or occupier of premises on whom
any notice, direction or other document referred to in paragraph (3) is to
be served cannot after reasonable enquiry be ascertained it may be served
by –
(a) addressing
it to the person on whom it is to be served by the description of
“owner”, “lessee” or “occupier” of the
premises;
(b) specifying
the premises on it; and
(c) delivering
it to some responsible person resident or appearing to be resident on the
premises or, if there is no person to whom it can be delivered, by affixing it,
or a copy of it, to some conspicuous part of the premises.
65 Regulations
and Orders
(1) The
Minister may by Order make provision for the purpose of carrying this Law into
effect and, in particular, but without prejudice to the generality of the
foregoing, for or with respect to any matter that may be prescribed under this Law
by Order of that Minister.
(2) The
States may by Regulations make provision for the purpose of carrying this Law
into effect and, in particular, but without prejudice to the generality of the
foregoing, for or with respect to any matter that may be prescribed under this Law
by Regulations.
(3) An
Order or Regulations made under this Law may –
(a) make
different provision in relation to different cases or circumstances;
(b) apply
in respect of particular persons or particular cases or particular classes of
persons or particular classes of cases, and define a class by reference to any
circumstances whatsoever; or
(c) contain
such transitional, consequential, incidental or supplementary provisions as
appear to the Minister or the States, as the case may be, to be necessary or
expedient for the purposes of the Order or Regulations.
(4) Regulations
made under this Law may create an offence punishable by a fine up to level 3 on
the standard scale.[63]
(5) [64]
66 Savings
and transitional and consequential provisions[65]
Schedule 4
contains savings, transitional and consequential provisions.
67 Citation
This
Law may be cited as the Telecommunications (Jersey) Law 2002.
Schedule 1[66]
(Article 24H)
Compliance
and enforcement in relation to designated vendor directions
Part 1 –
Plans for compliance and monitoring directions
1 Plans for compliance
(1) If the Minister has
given a designated vendor direction to a public communications provider and the
direction has not been revoked, the Minister may from time to time require the
provider –
(a) to
prepare a plan setting out –
(i) the
steps that the public communications provider intends to take to comply with
any requirements imposed by the direction that the Minister specifies, and
(ii) the
timing of those steps;
(b) to
provide the plan to the Minister; and
(c) to
provide the plan to the Authority.
(2) The Minister may
specify the period within which a plan required under sub-paragraph (1) must
be provided to the Minister or the Authority, which must be a period that
appears to the Minister to be reasonable.
(3) A public communications
provider that is required by the Minister to prepare or provide a plan in
accordance with sub-paragraph (1) must comply with the requirement.
2 Monitoring
directions
(1) The Minister may give
the Authority a direction (a “monitoring direction”) requiring
it –
(a) to
obtain information relating to a specified public communications provider’s
compliance with a designated vendor direction;
(b) to
prepare and send a report to the Minister based on that information; and
(c) to
provide to the Minister on request the information on which a report falling
within clause (b) is based.
(2) The Minister may give
the Authority more than one monitoring direction in relation to a designated
vendor direction.
(3) The information that
the Authority may be required to obtain under sub-paragraph (1)(a)
is –
(a) information
that would assist the Minister in determining whether the provider has
complied, is complying or is preparing to comply with –
(i) the
designated vendor direction, or
(ii) a
specified requirement imposed by the designated vendor direction;
(b) information
about a specified matter that is relevant to compliance with a requirement
imposed by the designated vendor direction;
(c) if
the provider has been required to provide a plan under paragraph 1,
information about whether the provider is acting in accordance with the plan.
(4) A monitoring direction
may –
(a) require
the Authority to give the Minister separate reports on different matters;
(b) make
provision about the time or times at which the Authority must report to the
Minister, including provision requiring the Authority to give reports at
specified intervals.
(5) A monitoring direction
may –
(a) make
provision about the form and content of a report; and
(b) in
particular, require a report to include –
(i) the
Authority’s analysis of information gathered by it, and
(ii) an
explanation of that analysis.
(6) The Authority may
exercise its powers to obtain information in a manner that it considers
appropriate for the purposes of preparing a report required by a monitoring
direction.
(7) The Minister may vary
or revoke a monitoring direction.
(8) The Minister must
consult the Authority before giving or varying a monitoring direction.
(9) In this paragraph,
“specified” means specified in a monitoring direction.
3 Reports made under monitoring directions
(1) The Minister may publish
or disclose a report, or any part of a report, made by
the Authority in accordance with a monitoring direction.
(2) In publishing or
disclosing a report under sub-paragraph (1), the Minister must have regard
to the need to exclude from publication or disclosure, so far as is
practicable, any matter that is confidential in accordance with sub-paragraph (3).
(3) A matter is
confidential under this sub-paragraph if –
(a) it
relates to the affairs of a person, and publication or disclosure of the matter
would or might, in the Minister’s opinion, seriously and prejudicially
affect the interests of that person;
(b) it
relates to the private affairs of an individual, and publication or disclosure
of the matter would or might, in the Minister’s opinion, seriously and
prejudicially affect the interests of that individual.
Part 2 –
Inspection notices
4 Power of Authority to give inspection notices
(1) This
paragraph applies if the Minister has given the Authority a monitoring direction
and the monitoring direction has not been revoked.
(2) The
Authority may give a notice to the public communications provider to which the
monitoring direction relates (an “inspection notice”) for the
purpose of obtaining any of the information mentioned in sub-paragraph (3).
(3) The
information referred to in sub-paragraph (2) is information, in any form –
(a) that
would assist the Minister in determining whether the provider has complied or
is complying with –
(i) the
designated vendor direction, or
(ii) a
specified requirement imposed by the designated vendor direction;
(b) about
a specified matter that is relevant to whether the provider has complied or is
complying with a requirement imposed by the designated vendor direction;
(c) that
would assist the Minister in determining whether the provider has complied or
is complying with a plan prepared in accordance with paragraph 1.
(4) An
inspection notice may require the public communications provider to take any of
the following actions –
(a) carry
out surveys of a specified description of –
(i) the
public electronic communications network provided by the provider,
(ii) the
public electronic communications service provided by
the provider, or
(iii) the
associated facilities made available by the provider that are associated
facilities by reference to the public electronic communications network or public
electronic communications service provided by it;
(b) make
arrangements of a specified description for another person to carry out surveys
of a specified description of the network, service or associated facilities;
(c) make
available for interview specified persons or persons of a specified description
who are involved in the provision of the network or service or the making
available of the associated facilities and who are willing to be interviewed;
(d) permit
an authorised person to enter specified premises;
(e) permit
an authorised person to observe any operation taking place on the premises that
relates to the network, service or associated facilities;
(f) direct
an authorised person to equipment or other material on the premises that is of
a specified description;
(g) direct
an authorised person to documents on the premises that are of a specified
description;
(h) assist
an authorised person to view information of a specified description that is
capable of being viewed using equipment on the premises;
(i) comply
with a request from an authorised person for a copy of the documents to which
the person is directed and a copy of the information the person is assisted to
view;
(j) permit
an authorised person to inspect or examine the documents, information,
equipment or material to which the person is directed or that the person is
assisted to view;
(k) provide
an authorised person with an explanation of those documents, information,
equipment or material.
(5) An
inspection notice must not require the public communications
provider –
(a) to
permit an authorised person to enter domestic premises;
(b) to
do anything that would result in –
(i) the
disclosure of documents or information in respect of which a claim to legal
professional privilege could be maintained in legal proceedings, or
(ii) a
disclosure of documents or information that is prohibited under an enactment
mentioned or described in Article 24K(3).
(6) An
inspection notice must –
(a) in
relation to each requirement to take an action imposed by the notice, specify
the time or times at which, or period or periods within which, the action must
be taken;
(b) provide
information about the consequences of failing to comply with a requirement
imposed by the notice.
(7) A
time or period specified under sub-paragraph (6)(a) must not be a time
that falls or a period that begins before the end of the period of 28 days
beginning with the day on which the inspection notice is given.
(8) If
an inspection notice is given to a public communications provider, the provider
must not act in a way that defeats the purpose of the inspection notice.
(9) If
an inspection notice is given to a public communications provider, the provider
must pay the costs reasonably incurred by the Authority in connection with
obtaining information by means of the inspection notice.
(10) Any
costs payable under sub-paragraph (9) are recoverable as a civil debt due
to the Authority.
(11) The Authority
may, by giving a further notice to the public communications
provider –
(a) revoke
an inspection notice;
(b) vary
an inspection notice to make it less onerous.
(12) The
Authority must prepare a report in respect of each of its financial years,
containing a statement of the number of occasions during the financial year to
which the report relates on which premises have been entered in pursuance of a
duty imposed under sub-paragraph (4)(d).
(13) A report
under sub-paragraph (12) must be sent to the Minister as soon as
practicable after the end of the financial year to which it relates and no
later than 4 months after the end of that year.
(14) Sub-paragraphs (12)
and (13) apply in relation to the first report under sub-paragraph (12)
with the modifications that the first report must –
(a) relate
to the financial year in which this paragraph comes into force, and to the
financial year immediately following (“Y2”);
and
(b) be
sent to the Minister as soon as practicable after the end of Y2 and no later than 4 months after the end of Y2.
(15) Paragraph
(14) and this paragraph expire at the end of the financial year immediately
following Y2.
(16) The
Minister must lay a copy of a report under sub-paragraph (12) before the
States Assembly as soon as practicable after the Minister receives the report.
(17) In this paragraph –
“authorised person”
means an employee of, or person authorised by, the Authority;
“domestic premises”
means premises, or a part of premises, used as a dwelling;
“financial year”
has the meaning given in the Competition
Regulatory Authority (Jersey) Law 2001;
“specified” means
specified in an inspection notice.
5 Notifications
of contravention
(1) The Authority may give a
public communications provider a notification (a “notification of
contravention”) if the Authority determines that there are reasonable
grounds for believing that the provider is contravening, or has contravened, a
duty imposed by an inspection notice or a duty imposed under paragraph 4(8).
(2) A notification of
contravention must –
(a) set
out the Authority’s determination;
(b) specify
the duty and contravention in respect of which that determination has been
made;
(c) specify
the period during which the provider has an opportunity to make
representations;
(d) specify
the steps that the Authority considers should be taken by the provider
to –
(i) comply
with the duty,
(ii) remedy
the consequences of the contravention;
(e) specify
any penalty that the Authority is minded to impose;
and
(f) if
the contravention is serious, specify any direction that the Authority is
minded to give under paragraph 9.
(3) A notification of
contravention may be given in respect of more than one contravention.
(4) If a notification of
contravention relates to more than one contravention, a separate penalty may be
specified under sub-paragraph (2)(e) in respect of each contravention.
(5) If a notification of
contravention is given in respect of a continuing contravention, it may be
given in respect of any period during which the contravention has continued.
(6) If a notification of
contravention relates to a continuing contravention, no more than one penalty
may be specified under sub-paragraph (2)(e) in respect of the period of
contravention specified in the notification of contravention.
(7) Despite sub-paragraph (6),
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 paragraph 6(2) that requires
immediate action; or
(b) the
expiry of a period specified in the confirmation decision for complying with a
requirement being contravened.
(8) If a notification of
contravention has been given to a provider in respect of a contravention of a
duty (an “earlier notification”), the Authority may give a further
notification of contravention in respect of the same contravention of that duty
(a “subsequent notification”) only if –
(a) the
contravention occurs after the time the earlier notification is given;
(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 contravention in respect of which the earlier notification
was given.
(9) The amount of a penalty
that may be specified in a notification of contravention is the amount that the
Authority determines to be appropriate and proportionate to the contravention
in respect of which it is imposed, but must not exceed the maximum amount
specified in sub-paragraph (10).
(10) The maximum
amount –
(a) in
the case of a penalty other than one specified in relation to a continuing
contravention under sub-paragraph (7) is 10% of the turnover of the public
communications provider’s business;
(b) in
the case of a penalty specified in relation to a continuing contravention under
sub-paragraph (7) is £10,000 per day.
(11) The States may by Regulations
amend the maximum amounts specified in sub-paragraph (10).
6 Notifications
of contravention: confirmation and enforcement
(1) This paragraph applies if –
(a) a
provider has been given a notification of contravention under paragraph 5;
(b) the
Authority has allowed the provider an opportunity to make representations about
the matters notified; and
(c) the
period allowed for the making of representations has expired.
(2) The Authority
must –
(a) give
the provider a decision confirming the imposition of requirements on the
provider, or the giving of a direction to the person, or both, in accordance
with the notification of contravention (a “confirmation decision”);
or
(b) inform
the provider no further action will be taken in relation to the contravention
specified in the notification of contravention.
(3) The Authority must not
give the provider a confirmation decision unless, after considering any
representations, it is satisfied that the provider has contravened a duty
specified in the notification of contravention in one or more of the ways
specified in the notification of contravention.
(4) A confirmation decision
must be given to the provider without delay and must include reasons for the
Authority’s decision.
(5) A confirmation decision
may –
(a) require
immediate action by the provider –
(i) to
comply with a requirement specified in the notification of contravention, and
(ii) to
remedy the consequences of the contravention; or
(b) specify
a period within which the provider must comply with those requirements and
remedy those consequences.
(6) A confirmation decision
may –
(a) require
the provider to pay –
(i) the
penalty specified in the notification of contravention, or
(ii) a
lesser penalty that the Authority considers appropriate in the light of
representations made by the provider, and steps taken by the provider to comply
with the duty specified in the notification of contravention or to remedy the
consequences of the contravention; and
(b) specify the period
within which the penalty must be paid.
(7) The provider must
comply with a requirement imposed by a confirmation decision.
(8) The Authority may
enforce the provider’s duty under sub-paragraph (7) in civil
proceedings –
(a) for
an injunction;
(b) for
specific performance; or
(c) for
any other appropriate remedy or relief.
(9) If
a sum payable to the Authority as a penalty under this Article is not paid by
the date specified, the Authority may apply to the Court for an order to
enforce payment of the penalty.
(10) The order of the Court may
provide for all of the costs of, or incidental to, the application to be borne
by all or any of the following –
(a) the
provider required to pay the penalty; or
(b) if
the provider is a body corporate, or association with separate legal
personality, a shareholder or officer of the entity whose actions led to the
imposition of the penalty.
7 Directions
in urgent cases
(1) The Authority may give
a direction to a provider if the Authority determines –
(a) that
it is entitled to give a notification of contravention under paragraph 5
to the provider;
(b) that
there are reasonable grounds for suspecting that the case is an urgent case;
and
(c) that
the urgency of the case makes it appropriate for the Authority to take action
under this paragraph.
(2) A case is an urgent
case for the purposes of this paragraph if the contravention has resulted in,
or creates an immediate risk of –
(a) a
serious threat to the safety of the public, to public health or to the security
of Jersey;
(b) serious
economic or operational problems for persons (other than the contravening
provider) who are communications providers or persons who make associated
facilities available; or
(c) serious
economic or operational problems for persons who make use of electronic
communications networks, electronic communications services or associated
facilities.
(3) A direction under
sub-paragraph (1) may –
(a) suspend the provision of electronic communications
networks or electronic communications services, or the making available of associated
facilities, by the provider (either generally or in relation to particular
networks, services or facilities); or
(b) restrict
that provision or making available of associated facilities in the respects set
out in the direction.
(4) A direction under
sub-paragraph (1) –
(a) must
specify the networks, services and facilities to which it relates; and
(b) unless
it provides otherwise, takes effect for an indefinite period beginning when it
is given to the provider.
(5) A direction under
sub-paragraph (1) –
(a) in
providing for the effect of a suspension or restriction to be postponed, may
provide for it to take effect only at a time determined by or in accordance
with the terms of the direction; and
(b) in
connection with the suspension or restriction contained in the direction or
with the postponement of its effect, may impose any conditions on the provider that
appear to the Authority to be appropriate for the purpose of protecting the
provider’s customers.
(6) Conditions imposed
under sub-paragraph (5)(b) may include a condition requiring the making of
payments to the provider’s customers –
(a) by
way of compensation for loss or damage suffered by them as a result of the
direction; or
(b) in
respect of annoyance, inconvenience or anxiety to which they have been put in
consequence of the direction.
(7) The Authority may
revoke a direction under sub-paragraph (1) –
(a) with
effect from the time that the Authority directs;
(b) subject
to compliance with any requirements that the Authority specifies; and
(c) to
the extent and in relation to the networks, services or facilities, or parts of
a network, service or facility, that the Authority determines.
8 Directions
in urgent cases: confirmation
(1) As soon as reasonably
practicable after giving a direction under paragraph 7(1), the Authority
must give the provider –
(a) an
opportunity to make representations about the grounds on which the direction
was given and its effect; and
(b) an
opportunity to propose steps to remedy the situation.
(2) As soon as practicable
after the end of the period allowed by the Authority under sub-paragraph (1)
for making representations has ended, and in any event by no later than the end
of the period mentioned in sub-paragraph (3), the Authority must
determine –
(a) whether
the contravention providing the grounds for the giving of the direction did
occur; and
(b) whether
the circumstances made it an urgent case justifying the giving of the
direction.
(3) The period
is –
(a) the
period of 3 months beginning with the day on which the direction was
given; or
(b) if
the Authority requires a longer period to consider representations received or
decides that it is necessary to obtain additional information from the provider
to make its determination, a longer period, not exceeding 6 months
beginning with the day on which the direction was given, that the Authority
determines.
(4) If the Authority
determines that the contravention did occur and that the direction was
justified, it may confirm the direction.
(5) If the Authority
determines that the direction was not justified, it must revoke the direction.
(6) As soon as reasonably
practicable after making a determination described in sub-paragraph (4) or
(5), the Authority must notify the provider of its determination.
(7) Conditions imposed
under paragraph 7(5)(b) have effect only if the direction is confirmed
under sub-paragraph (4).
9 Directions
suspending or restricting service provision
(1) The Authority may give
a direction to a provider –
(a) suspending
the provision of electronic communications networks or electronic
communications services, or the making available of associated facilities, by
the provider (either generally or in relation to particular networks, services
or facilities); or
(b) restricting
that provision or making available of associated facilities in the respects set
out in the direction.
(2) A direction under
sub-paragraph (1) may only be given if –
(a) either
Condition A or Condition B is satisfied in relation to the provider; and
(b) the
giving of a direction is appropriate and proportionate to the contravention in
respect of which it is imposed.
(3) Condition A is
that –
(a) the
provider is in serious contravention of a duty mentioned in paragraph 5(1);
and
(b) the
proposed direction has been notified to the provider under paragraph 5(2)(f)
and confirmed by a confirmation decision under paragraph 6.
(4) Condition B is
that –
(a) the
provider has repeatedly contravened a duty mentioned in paragraph 5(1);
and
(b) an
attempt by the Authority to secure compliance with that duty, by the imposition
of penalties or the giving of notifications under paragraph 5 and
confirmation decisions under paragraph 6, or both, has failed.
(5) If
Condition A is satisfied, the Authority must give the direction after the
Authority gives the confirmation decision mentioned in sub-paragraph (3)(b).
(6) If Condition B is
satisfied, the Authority must give the direction in accordance with the
procedure set out in sub-paragraphs (7) to (9).
(7) If Condition B is
satisfied and the case is not an urgent case the Authority must not give a
direction under sub-paragraph (1) unless it has –
(a) notified
the provider of the proposed direction and of the conditions (if any) that it
is proposing to impose by that direction;
(b) given
the provider an opportunity to make representations about the proposals and to
propose steps to remedy the situation; and
(c) considered
every representation and proposal made to it during the reasonable period that
the Authority determines to allow for the provider to take advantage of that
opportunity.
(8) In an urgent
case –
(a) as
soon as practicable after giving a direction under sub-paragraph (1) the
Authority must give the provider an opportunity to –
(i) make
representations about the effect of the direction and of any of its conditions,
and
(ii) propose
steps to remedy the situation;
(b) as
soon as practicable after the period allowed by the Authority under clause (a)
for making representations has ended (and in any event within 3 months
beginning with the day on which the direction was given), the Authority must
determine –
(i) whether
the contravention providing the grounds for the giving of the direction did
occur, and
(ii) whether
the circumstances made it an urgent case justifying the giving of the
direction.
(9) The period of 3 months
mentioned in sub-paragraph (8)(b) may be extended by up to 3 months
if the Authority requires additional time to consider representations received
or decides that it is necessary to obtain additional information from the
provider to make a determination under sub-paragraph (8)(b).
(10) A case is an urgent case for
the purposes of this paragraph if the Authority –
(a) considers
that it would be inappropriate to allow time for the making and consideration
of representations, before giving a direction under sub-paragraph (1),
because the contraventions in question have resulted in, or create an immediate
risk of –
(i) a
serious threat to the safety of the public, to public health or to the security
of Jersey,
(ii) serious
economic or operational problems for persons (apart from the contravening
provider or contravening supplier) who are communications providers or persons
who make associated facilities available, or
(iii) serious
economic or operational problems for persons who make use of electronic
communications networks, electronic communications services or associated
facilities; and
(b) decides
for that reason to act in accordance with sub-paragraph (8), instead of
sub-paragraph (7).
(11) A direction under
sub-paragraph (1) –
(a) must
specify the networks, services and facilities to which it relates; and
(b) unless
it provides otherwise, takes effect for an indefinite period beginning when it
is given to the provider.
(12) A direction under
sub-paragraph (1) –
(a) in
providing for the effect of a suspension or restriction to be postponed, may
provide for it to take effect only at a time determined by or in accordance
with the terms of the direction; and
(b) in
connection with the suspension or restriction contained in the direction or
with the postponement of its effect, may impose any conditions on the provider that
appear to the Authority to be appropriate for the purpose of protecting that
provider’s customers.
(13) The conditions mentioned in
sub-paragraph (12)(b) may include a condition requiring the making of
payments –
(a) by
way of compensation for loss or damage suffered by the provider’s
customers as a result of the direction; or
(b) in
respect of annoyance, inconvenience or anxiety to which they have been put in
consequence of the direction.
(14) If the Authority considers it
appropriate to do so (whether or not in consequence of representations or
proposals made to it), it may revoke a direction under this paragraph or modify
its conditions –
(a) with
effect from the time that the Authority directs;
(b) subject
to compliance with any requirements that it specifies; and
(c) to
the extent and in relation to the networks, services or facilities, or parts of
a network, service or facility, that the Authority determines.
(15) For the purposes of this
paragraph there are repeated contraventions by a provider of duties mentioned
in paragraph 5(1) to the extent that –
(a) in the case of a previous notification of contravention
given to that provider under paragraph 5, the Authority has given a
confirmation decision to that person under paragraph 6 in respect of the
contravention;
(b) in
the period of 24 months following the giving of that confirmation
decision, one or more further confirmation decisions have been given to the
provider in respect of contraventions of a duty mentioned in paragraph 5(1);
and
(c) the
previous confirmation decision and the subsequent ones all relate to
contraventions of the same duty (whether the same contravention or different
contraventions).
10 Enforcement
of directions under paragraphs 7 and 9
(1) A person commits an
offence if they provide an electronic communications network or electronic
communications service, or make available any associated facility, in
contravention of a suspension or restriction contained in a direction under
paragraph 7 or 9.
(2) A person guilty of an
offence under sub-paragraph (1) is liable to a fine.
(3) Paragraphs 5 to 8
apply in relation to a contravention of conditions imposed by a direction under
paragraph 7 or 9 as they apply in relation to a contravention of a duty
mentioned in paragraph 5(1).
Part 3 – Designated vendor directions, plans for
compliance, requirement not to disclose, and requirement to provide information
11 Designated vendor directions and plans for compliance:
notifications of contravention
(1) The Minister may give a
public communications provider a notification (a “notification
of contravention”) if the Minister determines that there are
reasonable grounds for believing that the provider is contravening, or has
contravened –
(a) a
requirement imposed by a designated vendor direction; or
(b) a
requirement under paragraph 1.
(2) A notification of
contravention must –
(a) set
out the Minister’s determination;
(b) specify
the requirement and contravention in respect of which the determination is
made;
(c) specify
the period during which the provider has an opportunity to make
representations;
(d) specify
the steps that the Minister considers should be taken by the provider
to –
(i) comply
with the requirement,
(ii) remedy
the consequences of the contravention;
(e) specify
the penalty that the Minister is minded to impose.
(3) A notification of
contravention may be given in respect of more than one contravention.
(4) If a notification of
contravention relates to more than one contravention, a separate penalty may be
specified under sub-paragraph (2)(e) in respect of each contravention.
(5) If a notification of
contravention is given in respect of a continuing contravention, it may be
given in respect of any period during which the contravention has continued.
(6) If a notification of
contravention relates to a continuing contravention, no more than one penalty
may be specified under sub-paragraph (2)(e) in respect of the period of
contravention specified in the notification of contravention.
(7) Despite sub-paragraph (6),
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 that requires immediate action in respect of
that contravention; or
(b) the
expiry of a period specified in the confirmation decision for complying with
the requirement being contravened.
(8) If a notification of
contravention has been given in respect of a contravention of a requirement (an
“earlier notification”), the Minister may give a further
notification of contravention in respect of the same contravention of that
requirement (a “subsequent notification”) only if –
(a) the
contravention occurs after the time the earlier notification is given;
(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 contravention in respect of which the earlier notification
was given.
(9) The amount of a penalty
that may be specified in a notification of
contravention is the amount that the Minister determines to be appropriate
and proportionate to the contravention in respect of which it is imposed, but must
not exceed the maximum amount specified in sub-paragraph (10).
(10) The maximum
amount –
(a) in
the case of a penalty other than one specified in relation to a continuing
contravention under sub-paragraph (7) is 10% of the turnover of the public
communications provider’s business;
(b) in
the case of a penalty specified in relation to a continuing contravention under
sub-paragraph (7) is £10,000 per day.
(11) The
States may by Regulations amend the maximum amounts specified in sub-paragraph (10).
12 Designated vendor directions and plans for compliance:
notifications of contravention: confirmation and enforcement
(1) This paragraph applies if –
(a) a
public communications provider has been given a notification of contravention
under paragraph 11;
(b) the
Minister has allowed the provider an opportunity to make representations about
the matters notified; and
(c) the
period allowed for the making of representations has expired.
(2) The Minister
must –
(a) give
the provider a decision confirming the imposition of requirements on the
provider in accordance with the notification of contravention (a
“confirmation decision”); or
(b) inform
the provider that no further action will be taken in relation to the
contravention specified in the notification of contravention.
(3) The Minister must not
give the provider a confirmation decision unless, after considering any
representations, the Minister is satisfied that the provider has contravened a
requirement specified in the notification of contravention in one or more of
the ways specified in the notification of contravention.
(4) A confirmation decision
must be given to the provider without delay and must include reasons for the
Minister’s decision.
(5) A confirmation decision
may –
(a) require
immediate action by the provider –
(i) to
comply with a requirement specified in the notification of contravention, and
(ii) to
remedy the consequences of the contravention; or
(b) specify
a period within which the provider must comply with that requirement and remedy
those consequences.
(6) A confirmation decision
may –
(a) require the provider to
pay –
(i) the
penalty specified in the notification of contravention, or
(ii) a
lesser penalty that the Minister considers appropriate in the light of representations
made by the provider, and steps taken by the provider to comply
with the requirement specified in the notification of contravention or to
remedy the consequences of the contravention; and
(b) specify
the period within which the penalty must be paid.
(7) The provider must
comply with a requirement imposed by a confirmation decision.
(8) The Minister may
enforce a provider’s duty under sub-paragraph (7) in civil
proceedings –
(a) for
an injunction;
(b) for
specific performance; or
(c) for
any other appropriate remedy or relief.
(9) If a sum payable to the
Minister as a penalty under this paragraph is not paid by the date specified,
the Minister may apply to the Court for an order to enforce payment of the
penalty.
(10) The order of the Court may
provide for all of the costs of, or incidental to, the application to be borne
by all or any of the following –
(a) the
provider required to pay the penalty; or
(b) if the provider is a
body corporate, or association with separate legal personality, a shareholder
or officer of the entity whose actions led to the imposition of the penalty.
13 Requirement
not to disclose under Article 24I
(1) Paragraphs 11 and 12
apply in relation to a contravention by a person of a requirement under Article 24I not to disclose a matter as they apply in relation to a
contravention by a public communications provider of a requirement imposed by a
designated vendor direction or a requirement under paragraph 1, but with
the modifications set out in sub-paragraphs (2) and (3).
(2) Paragraph 11 applies as
if –
(a) for
the text in sub-paragraph (2)(d)(i) there were
substituted “bring the contravention to an end,”; and
(b) for
the text in sub-paragraph (2)(d)(ii) there were substituted “limit
the consequences of the contravention;”.
(3) Paragraph 12 applies
as if –
(a) in
sub-paragraph (5) –
(i) for the text in clause (a)(i) there were substituted “to bring the
contravention to an end, and”,
(ii) for
the text in clause (a)(ii) there were substituted “to limit the consequences
of the contravention;”,
(iii) for
the text in clause (b) there were substituted “specify a period
within which the provider must bring that contravention to an end and limit
those consequences”,
(iv) in
the words following clause (b) for “comply with that requirement or
remedy” there were substituted “bring that contravention to an end
or limit”;
(b) in
sub-paragraph (6)(a)(ii), for “comply with the requirement specified
in the notification of contravention or to remedy” there were substituted
“bring the contravention to an end or to limit”.
14 Requirement
to provide information under Article 24J
Paragraphs 11 and
12 apply in relation to a contravention by a person of a requirement under
Article 24J as they apply in relation to a
contravention by a public communications provider of a requirement imposed by a
designated vendor direction or a requirement under paragraph 1.
15 Urgent enforcement directions
(1) The Minister may give a
direction under this paragraph (an “urgent enforcement direction”)
to a person if the Minister determines that –
(a) there
are reasonable grounds for believing that the person is contravening, or has
contravened –
(i) a
requirement imposed by a designated vendor direction, or
(ii) a
requirement not to disclose imposed under Article 24I;
(b) there
are reasonable grounds for suspecting that the case is an urgent case; and
(c) the
urgency of the case makes it appropriate for the Minister to take action under
this paragraph.
(2) A case is an urgent
case for the purposes of this paragraph if the contravention has resulted in,
or creates an immediate risk of –
(a) a
serious threat to the security of Jersey; or
(b) significant
harm to the security of a public electronic communications network, a public
electronic communications service or a facility that is an associated facility
by reference to such a network or service.
(3) An urgent enforcement
direction must –
(a) specify
the requirement and contravention in respect of which it is given;
(b) require
the person to take any steps falling within sub-paragraph (4) that are
specified in the direction;
(c) specify
a period within which those steps must be taken; and
(d) specify
the Minister’s reasons for giving the direction.
(4) The steps falling
within this sub-paragraph are the steps that the Minister has determined are
appropriate –
(a) to
comply with the requirement; or
(b) to
remedy the consequences of the contravention.
(5) The requirement in
sub-paragraph (3)(d) does not apply if or to the extent that the Minister
considers that specifying reasons in the direction would be contrary to the
interests of the security of Jersey.
16 Urgent enforcement directions: confirmation and
enforcement
(1) As soon as reasonably
practicable after giving an urgent enforcement direction under paragraph 15,
the Minister must –
(a) confirm
the direction; or
(b) revoke
the direction.
(2) The Minister may
confirm an urgent enforcement direction with or without modifications.
(3) The Minister may
confirm an urgent enforcement direction only if the Minister has determined
that –
(a) the
person is contravening, or has contravened –
(i) a
requirement imposed by a designated vendor direction, or
(ii) a
requirement not to disclose imposed under Article 24I;
(b) the
contravention has resulted in, or creates an immediate risk of, a threat or
harm described in paragraph 15(2)(a) or (b); and
(c) it
is appropriate to confirm the urgent enforcement direction, with any
modifications, to prevent, reduce or remove that threat or harm or immediate
risk.
(4) Before confirming an
urgent enforcement direction, the Minister must –
(a) give
notice to the person to whom the direction was given that the Minister proposes
to confirm the direction; and
(b) give
the person –
(i) an
opportunity to make representations about the grounds on which the direction
was given and its effect, and
(ii) an
opportunity to propose steps to remedy the situation.
(5) The notice under
sub-paragraph (4)(a) must –
(a) state
that the Minister proposes to confirm the direction;
(b) specify
any proposed modifications of the direction;
(c) specify
the Minister’s reasons for confirming the direction and for any
modifications; and
(d) specify
a reasonable period for making representations.
(6) The requirement in
sub-paragraph (5)(c) does not apply if or to the extent that the Minister
considers that specifying reasons in the notice would be contrary to the
interests of the security of Jersey.
(7) As soon as reasonably
practicable after determining whether to confirm the direction, the Minister
must give notice of that determination to the person to
whom the direction was given.
(8) A person who is given
an urgent enforcement direction that has not been revoked must comply with it,
whether or not it has been confirmed.
(9) The duty in
sub-paragraph (8) is enforceable in civil proceedings by the
Minister –
(a) for
an injunction;
(b) for
specific performance; or
(c) for
any other appropriate remedy or relief.
Schedule 2
[not
in force]
Schedule 3[67]
(Article 24ZD)
Compliance and enforcement in relation to the
power of the authority to require information under Article 24ZC
1 Notifications of contravention
(1) The Authority may give a
person a notification (a “notification of contravention”) if the
Authority determines that there are reasonable grounds for believing that the person
is contravening, or has contravened, a requirement imposed
under Article 24ZC.
(2) A notification of
contravention must –
(a) set
out the Authority’s determination;
(b) specify
the requirement and contravention in respect of which that determination has
been made;
(c) specify
the period during which the person has an opportunity to make representations;
(d) specify
the steps that the Authority considers should be taken by the person to comply with the requirement;
(e) specify any penalty that the Authority is minded to
impose; and
(f) if
the contravention is serious, specify any direction that the Authority is
minded to give under paragraph 5.
(3) A notification of contravention
may be given in respect of more than one contravention.
(4) If a notification of
contravention relates to more than one contravention, a separate penalty may be
specified under sub-paragraph (2)(e) in respect of each contravention.
(5) If a notification of
contravention is given in respect of a continuing contravention, it may be
given in respect of any period during which the contravention has continued.
(6) If a notification of
contravention relates to a continuing contravention, no more than one penalty
may be specified under sub-paragraph (2)(e) in respect of the period of
contravention specified in the notification of contravention.
(7) Despite sub-paragraph (6),
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 paragraph 2(2) that requires
immediate action under paragraph 2(5)(a); or
(b) the
expiry of a period specified in the confirmation decision for complying with a
requirement being contravened.
(8) If a notification of
contravention has been given to a person in respect of a contravention of a
requirement imposed under Article 24ZC (an
“earlier notification”), the Authority may give a further notification
of contravention in respect of the same contravention of that requirement (a
“subsequent notification”) only if –
(a) the
contravention occurs after the time the earlier notification is given;
(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 contravention in respect of which the earlier notification
was given.
(9) The amount of a penalty
that may be specified in a notification of contravention is the amount that the
Authority determines to be appropriate and proportionate to the contravention
in respect of which it is imposed, but must not exceed the maximum amount
specified in sub-paragraph (10).
(10) The maximum
amount –
(a) in
the case of a penalty other than one specified in relation to a continuing
contravention under sub-paragraph (7) is 10% of the turnover of the person’s
business;
(b) in
the case of a penalty specified in relation to a continuing contravention under
sub-paragraph (7) is £10,000 per day.
(11) The States may by Regulations
amend the maximum amounts specified in sub-paragraph (10).
2 Notifications
of contravention: confirmation and enforcement
(1) This paragraph applies if –
(a) a
person has been given a notification of contravention under paragraph 1;
(b) the
Authority has 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) The Authority
must –
(a) give
the person a decision confirming the imposition of requirements on the person,
or the giving of a direction to the person, or both, in accordance with the
notification of contravention (a “confirmation decision”); or
(b) inform
the person no further action will be taken in relation to the contravention
specified in the notification of contravention.
(3) The Authority must not
give the person a confirmation decision unless, after considering any
representations, it is satisfied that the person has contravened a requirement
specified in the notification of contravention in one or more of the ways
specified in the notification of contravention.
(4) A confirmation decision
must be given to the person without delay and must include reasons for the
Authority’s decision.
(5) A confirmation decision
may –
(a) require
immediate action by the person to comply with a
requirement specified in the notification of contravention; or
(b) specify
a period within which the person must comply with a requirement.
(6) A confirmation decision
may –
(a) require
the person to pay –
(i) the
penalty specified in the notification of contravention, or
(ii) a
lesser penalty that the Authority considers appropriate in the light of
representations made by the person, and steps taken by the person to comply
with the requirement specified in the notification of contravention; and
(b) specify
the period within which the penalty must be paid.
(7) The person must comply
with any requirement imposed by a confirmation decision.
(8) The Authority may
enforce the person’s duty under sub-paragraph (7) in civil
proceedings –
(a) for
an injunction;
(b) for
specific performance; or
(c) for
any other appropriate remedy or relief.
(9) If a sum payable to the
Authority as a penalty under this Article is not paid by the date specified,
the Authority may apply to the Court for an order to enforce payment of the
penalty.
(10) The order of the Court may
provide for all of the costs of, or incidental to, the application to be borne
by all or any of the following –
(a) the
person required to pay the penalty; or
(b) if
the person is a body corporate, or association with separate legal personality,
a shareholder or officer of the entity whose actions led to the imposition of
the penalty.
3 Directions
in urgent cases
(1) The Authority may give
a direction to a person if the Authority determines –
(a) that
it is entitled to give a notification of contravention under paragraph 1
to the person;
(b) that
there are reasonable grounds for suspecting that the case is an urgent case;
and
(c) that
the urgency of the case makes it appropriate for the Authority to take action
under this paragraph.
(2) A case is an urgent
case for the purposes of this paragraph if the contravention has resulted in,
or creates an immediate risk of –
(a) a
serious threat to the safety of the public, to public health or to the security
of Jersey;
(b) serious
economic or operational problems for persons (other than the contravening person)
who are communications providers or persons who make associated facilities
available; or
(c) serious
economic or operational problems for persons who make use of electronic
communications networks, electronic communications services or associated
facilities.
(3) A direction under
sub-paragraph (1) may –
(a) suspend
the provision of electronic communications networks or electronic
communications services, or the making available of associated facilities, by
the person (either generally or in relation to particular networks, services or
facilities); or
(b) restrict
that provision or making available of associated facilities in the respects set
out in the direction.
(4) A direction under
sub-paragraph (1) –
(a) must
specify the networks, services and facilities to which it relates; and
(b) unless
it provides otherwise, takes effect for an indefinite period beginning when it
is given to the person.
(5) A direction under
sub-paragraph (1) –
(a) in
providing for the effect of a suspension or restriction to be postponed, may
provide for it to take effect only at a time determined by or in accordance
with the terms of the direction; and
(b) in
connection with the suspension or restriction contained in the direction or
with the postponement of its effect, may impose any conditions on the person that
appear to the Authority to be appropriate for the purpose of protecting the person’s
customers.
(6) Conditions imposed under
sub-paragraph (5)(b) may include a condition requiring the making of
payments to the person’s customers –
(a) by
way of compensation for loss or damage suffered by them as a result of the
direction; or
(b) in
respect of annoyance, inconvenience or anxiety to which they have been put in
consequence of the direction.
(7) The Authority may
revoke a direction under sub-paragraph (1) –
(a) with
effect from the time that the Authority directs;
(b) subject
to compliance with any requirements that the Authority specifies; and
(c) to
the extent and in relation to the networks, services or facilities, or parts of
a network, service or facility, that the Authority determines.
4 Directions
in urgent cases: confirmation
(1) As soon as reasonably
practicable after giving a person a direction under paragraph 3(1), the
Authority must give the person –
(a) an
opportunity to make representations about the grounds on which the direction
was given and its effect; and
(b) an
opportunity to propose steps to remedy the situation.
(2) As soon as practicable
after the end of the period allowed by the Authority under sub-paragraph (1)
for making representations has ended, and in any event by no later than the end
of the period mentioned in sub-paragraph (3), the Authority must
determine –
(a) whether
the contravention providing the grounds for the giving of the direction did
occur; and
(b) whether
the circumstances made it an urgent case justifying the giving of the
direction.
(3) The period
is –
(a) the
period of 3 months beginning with the day on which the direction was
given; or
(b) if
the Authority requires a longer period to consider representations received or
decides that it is necessary to obtain additional information from the person
to make its determination, a longer period, not exceeding 6 months
beginning with the day on which the direction was given, that the Authority
determines.
(4) If the Authority
determines that the contravention did occur and that the direction was
justified, it may confirm the direction.
(5) If the Authority
determines that the direction was not justified, it must revoke the direction.
(6) As soon as reasonably
practicable after making a determination described in sub-paragraph (4) or
(5), the Authority must notify the person of its determination.
(7) Conditions imposed
under paragraph 3(5)(b) have effect only if the direction is confirmed
under sub-paragraph (4).
5 Directions
suspending or restricting service provision
(1) The Authority may give
a direction to a person who is a communications provider or who makes
associated facilities available –
(a) suspending
the provision of electronic communications networks or electronic
communications services, or the making available of associated facilities, by
the person (either generally or in relation to particular networks, services or
facilities); or
(b) restricting
that provision or making available of associated facilities in the respects set
out in the direction.
(2) A direction under
sub-paragraph (1) may only be given if the Authority is
satisfied –
(a) that
the person is or has been in serious or repeated contravention of requirements
imposed under Article 24ZC;
(b) in
the case of a repeated contravention, that an attempt by the Authority to
secure compliance with the contravened requirements, by the imposition of
penalties or the giving of notifications under paragraph 1 and
confirmation decisions under paragraph 2, or both, has failed.
(c) the
giving of a direction is appropriate and proportionate to the contravention in
respect of which it is given.
(3) If the case is not an
urgent case, the Authority must not give a direction under sub-paragraph (1)
unless it has –
(a) notified
the person of the proposed direction and of the conditions (if any) that it is
proposing to impose by that direction;
(b) given
the person an opportunity to make representations about the proposals and to
propose steps to remedy the situation; and
(c) considered
every representation and proposal made to it during the reasonable period that
the Authority determines to allow for the person to take advantage of that
opportunity.
(4) In an urgent
case –
(a) as
soon as practicable after giving a direction under sub-paragraph (1) the
Authority must give the person an opportunity to –
(i) make
representations about the effect of the direction and of any of its conditions,
and
(ii) propose
steps to remedy the situation;
(b) as
soon as practicable after the period allowed by the Authority under clause (a)
for making representations has ended (and in any event within 3 months
beginning with the day on which the direction was given), the Authority must
determine –
(i) whether
the contravention providing the grounds for the giving of the direction did
occur, and
(ii) whether
the circumstances made it an urgent case justifying the giving of the
direction.
(5) The period of 3 months
mentioned in sub-paragraph (4)(b) may be extended by up to 3 months
if the Authority requires additional time to consider representations received
or decides that it is necessary to obtain additional information from the
person to make a determination under sub-paragraph (4)(b).
(6) A case is an urgent
case for the purposes of this paragraph if the Authority –
(a) considers
that it would be inappropriate to allow time for the making and consideration
of representations, before giving a direction under sub-paragraph (1),
because the contraventions in question have resulted in, or create an immediate
risk of –
(i) a
serious threat to the safety of the public, to public health or to the security
of Jersey,
(ii) serious
economic or operational problems for persons (other than the contravening person)
who are communications providers or persons who make associated facilities
available, or
(iii) serious
economic or operational problems for persons who make use of electronic
communications networks, electronic communications services or associated
facilities; and
(b) decides
for that reason to act in accordance with sub-paragraph (4), instead of
sub-paragraph (3).
(7) A direction under sub-paragraph (1) –
(a) must
specify the networks, services and facilities to which it relates; and
(b) unless
it provides otherwise, takes effect for an indefinite period beginning when it
is given to the person.
(8) A direction under
sub-paragraph (1) –
(a) in
providing for the effect of a suspension or restriction to be postponed, may
provide for it to take effect only at a time determined by or in accordance
with the terms of the direction; and
(b) in
connection with the suspension or restriction contained in the direction or
with the postponement of its effect, may impose any conditions on the person that
appear to the Authority to be appropriate for the purpose of protecting that person’s
customers.
(9) The conditions
mentioned in sub-paragraph (8)(b) may include a condition requiring the
making of payments –
(a) by
way of compensation for loss or damage suffered by the person’s customers
as a result of the direction; or
(b) in
respect of annoyance, inconvenience or anxiety to which those customers have
been put in consequence of the direction.
(10) If the Authority considers it
appropriate to do so (whether or not in consequence of representations or
proposals made to it), it may revoke a direction under this paragraph or modify
its conditions –
(a) with
effect from the time that the Authority directs;
(b) subject
to compliance with any requirements that it specifies; and
(c) to
the extent and in relation to the networks, services or facilities, or parts of
a network, service or facility, that it determines.
(11) For the purposes of this
paragraph there are repeated contraventions by a person of
requirements imposed under Article 24ZC to the extent that –
(a) in
the case of a previous notification of contravention given to that person under
paragraph 1, the Authority has given a confirmation decision to that
person under paragraph 2 in respect of the contravention;
(b) in
the period of 24 months following the giving of that confirmation
decision, one or more further confirmation decisions have been given to the person
in respect of contravention of a requirement imposed under Article 24ZC; and
(c) the
previous confirmation decision and the subsequent ones all relate to
contraventions of requirements imposed under Article 24ZC,
whether or not the same contravention of the same requirement.
6 Enforcement
of directions under paragraph 5
(1) A person commits an
offence if they provide an electronic communications network or electronic
communications service, or make available any associated facility, in contravention
of a suspension or restriction contained in a direction under paragraph 5.
(2) A person guilty of an
offence under sub-paragraph (1) is liable to a fine.
(3) Paragraphs 1 to 4
apply in relation to a contravention of conditions imposed by a direction under
paragraph 5 as they apply in relation to a contravention of a requirement
under Article 24ZC.
Schedule 4[68]
Savings and transitional and consequential provisions
(Article 66)
1 No
exclusive privilege
(1) On and from the
commencement of Article 2 of this Law, there shall be no exclusive
privilege within the meaning of Article 2 of the Telecommunications
(Jersey) Law 1972.
(2) Sub-paragraph (1)
is included only for the avoidance of doubt.
2 Continuation
of licences
A licence in force under Article 5 of the Telecommunications
(Jersey) Law 1972 immediately before the repeal of that Law
shall –
(a) continue
in force for as long as it would have if that Law had not been repealed, unless
revoked under this Law; and
(b) be
subject to this Law as if it had been granted under Part 5 of this Law at
the time when it was in fact granted.
3 Continuation
of Orders and authorities
Anything done by the Board under the Radio Equipment (Jersey)
Law 1997 (including the making of any Order or the giving of any
authority) before the amendment of that Law by this Law shall, on the date of
that amendment, be taken to have been done by the Economic Development Committee
and shall not be affected by that amendment.
4 References
to Board
(1) A
reference in any enactment, agreement or other document to the Board in any
capacity shall, on and from the day on which the function of the Board implied
in that capacity is transferred –
(a) become
a reference to the Committee, in the case where the function is to make an Order
or to give any authority or permit;
(b) become
a reference to the Authority, in the case where the function is to grant any
licence;
(c) become
a reference to the company, in the case where the function is to run any
telecommunication system; or
(d) in
any case (including any of the cases set out in clauses (a) – (c)),
become such reference as the States may by Regulations otherwise prescribe.
(1A) Despite sub-paragraph (1)(a),
a reference in any enactment, agreement or other document to the Board in any
capacity shall, on and from the day on which Regulation 37(16) of the
States of Jersey (Amendments and Construction Provisions No. 4) (Jersey)
Regulations 2005 comes into force, become a reference to the Minister, in
the case where the function is to make an Order or to give any authority or
permit.[69]
(2) Accordingly,
any application made to the Board, any proceedings commenced with the Board as
party, or anything else involving the Board, being an application, proceedings
or thing that has not been finally determined, or finished, when the Board is
dissolved may be determined or continued by the person to whom, according to sub-paragraph (1)
or (1A), reference is made in relation to the
appropriate capacity.
(3) Furthermore,
any record or requirement made by, any information given to, any document
deposited with, any record kept by, or any statement made to, the Board in the
exercise of any of its functions before it is dissolved shall be taken to have
been made by, given to, deposited with, kept by or made to, the person to whom,
according to sub-paragraph (1) or (1A),
reference is made in relation to the appropriate capacity.
(4) Sub-paragraph (1)(a) to (c)
is subject, in its application to any enactment, agreement or other document,
to any express provision, or implication, to the contrary respectively in that
or any other enactment, agreement or other document (including any Regulation
to the contrary under sub-paragraph (1)(d)).
(5) Sub-paragraph (1A) is subject, in its application to any enactment,
agreement or other document, to any express provision, or implication, to the
contrary respectively in that or any other enactment, agreement or other
document (including any Regulation to the contrary under the States of Jersey Law 2005).[70]
5 References
to infrastructure
(1) A
reference in any enactment, agreement, or other document, in force immediately
before the day when this Schedule comes into force, to telegraphy or telephony
shall, on and from that day, become –
(a) a
reference to telecommunications; or
(b) such
reference as the States may by Regulations otherwise prescribe.
(2) This
paragraph is subject to any express provision, or implication, to the contrary
in the enactment, agreement or other document.
6 General
saving
(1) Any
Order made, or other thing done, by any person under any provision of the Telecommunications
(Jersey) Law 1972 that still had force or effect immediately before the
repeal of that provision by this Law shall, if there is a provision that gives
power to do that thing under this Law, be taken to have been done under the
latter provision and by the person who has, under the latter provision, the
function of doing that thing.
(2) Sub-paragraph (1)
is subject to any express provision, or implication, to the contrary in this Law
or in the Regulations made under this Law.
7 Regulations
may make savings or transitional provisions or consequential changes
(1) Regulations
made under this Law may contain provisions of a saving or transitional nature
consequent on the enactment of this Law, and (without affecting the generality
of the preceding words) on the dissolution of the Board or on the taking up of
functions of the Board by the company, the Authority, a Committee of the States
or a Minister.
(2) Regulations
made under this Law may contain provisions modifying any enactment in
consequence of the enactment of this Law.
(3) Any
provision referred to in sub-paragraph (1) or (2) may, if the Regulations
so provide, come into force –
(a) in
the case of a provision that does not concern the taking up of functions by a
Minister, on the day on which this Schedule comes into force or on a later day;
or
(b) in
the case of a provision that concerns the taking up of functions by a Minister,
on the day on which Regulation 37(17) of the States of Jersey (Amendments
and Construction Provisions No. 4) (Jersey) Regulations 2005 comes
into force or on a later day.
(4) To
the extent to which any such provision comes into force on a date that is
earlier than the date of its promulgation, the provision does not operate so
as –
(a) to
affect, in a manner prejudicial to any person (other than the States or an
authority of the States), the rights of that person existing before the date of
its promulgation; or
(b) to
impose liabilities on any person (other than the States or an authority of the
States) in respect of anything done or omitted to be done before the date of
its promulgation.