Communications Act 2003, section 104

Civil liability for breach of conditions or confirmation decision

Part 2 Networks, services and the radio spectrum

(1)The obligation of a person to comply with—

(a)the conditions set under section 45 which apply to him,

[F403 (aa)the person’s commitments that are made binding by a commitments decision,F403]

(b)F404requirements imposed on him by an enforcement notification under section 95, ...

[F405 (ba)requirements imposed on the person by a notification under section 96A and a confirmation decision under section 96C; andF405]

(c)the conditions imposed by a direction under section 98 [F406, 100 or 100AF406] ,

shall be a duty owed to every person who may be affected by a contravention of the condition [F407, commitmentF407] or requirement.

(2)Where a duty is owed by virtue of this section to a person—

(a)a breach of the duty that causes that person to sustain loss or damage, and

(b)an act which—

(i)by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and

(ii)is done wholly or partly for achieving that result,

shall be actionable at the suit or instance of that person.

(3)In proceedings brought against a person by virtue of subsection (2)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition [F408, commitmentF408] or requirement in question.

(4)The consent of OFCOM is required for the bringing of proceedings by virtue of subsection (1)(a) [F409or (aa)F409] .

(5)Where OFCOM give a consent for the purposes of subsection (4) subject to conditions relating to the conduct of the proceedings, the proceedings are not to be carried on by that person except in compliance with those conditions.

Definitions used in section 104 3

commitments decision

(9) A decision under subsection (8) (referred to in this Chapter as a “commitments decision”) takes effect on being notified by OFCOM to the dominant provider and published by OFCOM.

Defined in s.93A(9) · see it in the full Act

“commitments decision” means a decision under section 93A(8);

Defined in s.151(1) · see it in the full Act
contravention

“contravention” includes a failure to comply, and cognate expressions are to be construed accordingly;

Defined in s.405(1) · see it in the full Act
OFCOM

“OFCOM” means the Office of Communications;

Defined in s.405(1) · see it in the full Act

Cases considering section 104 4

British Telecommunications plc v Office Of Communications (OFCOM) & Ors

[2017] EWCA Civ 330 · 4 May 2017Defines

A breach of an SMP condition may give rise to a private law action, subject to the statutory requirements. (see paras [31], [47] and [60]) The obligation to comply with a condition is a duty owed to persons affected by its contravention. (see para [31]) Loss or damage caused by breach of the duty is actionable by the person to whom the duty is owed. (see paras [31] and [47]) The provision supplies a defence where the obligee took all reasonable steps and exercised due diligence to avoid contravention. (see para [31]) A private action for breach requires Ofcom’s consent. (see para [31])

Edge Telecommunications Limited v Ofcom

[2025] EWHC 2758 (KB) · 30 October 2025

Confirms by contrast that Parliament expressly provided a damages remedy for specified breaches of the Communications Act, whereas it made no equivalent provision for section 8(4) of the Wireless Telegraphy Act 2006. This supported the conclusion that no private damages action was intended (see paras [55], [66]-[68]).

Frontier Systems Ltd (t/a Voiceflex) v Frip Finishing Ltd

[2014] EWHC 1907 (TCC) · 10 June 2014Interprets

Section 104 was interpreted as enabling proceedings for breach of applicable conditions, subject to the statutory consent requirement, but not preventing a defendant from relying on breach of a condition defensively. The provision therefore operated as a sword rather than a shield. (see paras [52]-[56])

What each judgment says about section 104 is in the case-law panel in the full Act.

Explanatory note

251.This section provides that the obligation of a person to comply with any applicable conditions under section 45, or the conditions imposed by a direction under section 98 or 100, or any requirements imposed by an enforcement notification under section 95, is a duty owed to every person who may be affected by the contravention of the condition or requirement. Where a person sustains loss or damage as a result of a breach of that duty or of an act which induces a breach of the duty or interfering with its performance, that person may bring civil proceedings against the provider or supplier concerned. OFCOM’s consent is required before proceedings can be brought in respect of a breach of condition under section 45. In any such proceedings, a person may defend himself by demonstrating that he did everything reasonable and exercised all due diligence to avoid breaching the condition or requirement in question.

All the explanatory notes for the Act

Amendments and notes

11 notes from legislation.gov.uk

Amendments

  1. F402Words in s. 104 heading substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(c) (with Sch. 3 paras. 2, 13)
  2. F403S. 104(1)(aa) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 52(2)(a)
  3. F404Word in s. 104(1)(b) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(a) (with Sch. 3 paras. 2, 13)
  4. F405S. 104(1)(ba) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(a) (with Sch. 3 paras. 2, 13)
  5. F406Words in s. 104(1)(c) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(b) (with Sch. 3 paras. 2, 13)
  6. F407Word in s. 104(1) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 52(2)(b)
  7. F408Word in s. 104(3) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 52(3)
  8. F409Words in s. 104(4) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 52(4)

Modifications

  1. C23S. 104 applied (6.4.2023) by The Trade (Mobile Roaming) Regulations 2023 (S.I. 2023/214), regs. 1(b), 7(2)

Commencement

  1. I185S. 104 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) text for certain specified purposes only, see the commentary.
  2. I186S. 104 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)