CA-2024-002837 - [2025] EWCA Civ 1118

Section 32(2) and (2A) of the 2003 Act provide as follows:

s.32(2): “In this Act ‘electronic communications service’ means a service of any of the types specified in subsection (2A) provided by means of an electronic communications network, except so far as it is a content service.”

s.32(2A): “Those types of service are‒

(a)

an internet access service;

(b)

a number-based interpersonal communications service; and

(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 or for broadcasting.”

(It is (c) alone that is relevant here.)

A “content service” is defined by s.32(7) as follows:

“a ‘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.”

An ‘electronic communications network’ (“ECN”) is defined by s.32(1) as follows:

“(a)

a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

(b)

such 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; and

(iv)

(except for the purposes of sections 125 to 127) other resources, including network elements which are not active.”

The short question of construction is whether, in determining whether the Sky Pay TV Service consists of or has as its principal feature the conveyance of signals within the meaning of s.32(2)&(2A), it is necessary to disregard such part of the Sky Pay TV Service that consists of content services. Ofcom contends it should be disregarded. Sky contends it should not.

The true construction of s.32 is important in this case because Ofcom’s power to set a condition that applies generally applies only to a person that provides an ECN or an ECS: see s.45(1) and (2)(a) and s.46(2) of the 2003 Act. The requirement to provide an EoCN to customers derives from s.51(1)(a) of the 2003 Act which specifies that “conditions making such provision as OFCOM consider appropriate for protecting the interests of the end-users of public electronic communications services” are among those that can be set as general conditions.