To what extent is it possible to contract out of provisions (other than the right to assign, upgrade or share use) of the Electronic Communications Code?

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Produced in partnership with Nic Taggart & Myriam Stacey of Landmark Chambers

Published on: 10 October 2018

The stated objective

The government’s stated objective was that the New Code (Part 1 of Schedule 3A to the Communications Act 2003 (CA 2003)) should not be contracted out of at all. The Department for Culture Media and Sport Department for Culture Media and Sport: A New Electronic Communications Code in its White Paper, May 2016) said this, ‘the Government considers that any attempts by one or more parties to gain advantage by circumventing the new Code’s provisions must be prohibited if the Code is to be truly effective. We will therefore make provision in the revised Code to prohibit the ability to contract out and stop parties making private agreements capable of excluding Code provisions’.

However, that objective was not fully followed through into the New Code.

The contracting out provision

The contracting out provision is contained in paragraph 100 of the New Code. It provides:

Jurisdiction(s):

United Kingdom

Key definition:

Electronic Communications Code definition

What does Electronic Communications Code mean?

The Electronic Communications Code, inserted into the communications act 2003, Schedule 3A, by the Digital Economy act 2017. A code right is granted in relation to an operator and any land, for the statutory purposes of providing an operator's network/infrastructure system, and for activities set out in the code.

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