February saw some interesting developments in the commercial arena. There were tantrums following a toddler hack and a marketing company was fined for disturbing the slumbers of innocent people.
Here is a round-up of our Top 5 developments:
Consumer protection: Throwing the toys out the pram—manufacturer liability for unfair terms
Electronic toy manufacturer, Vtech, was recently criticised for reportedly changing its terms and conditions in response to a hack to try and absolve itself of responsibility.
Calum Murray, Partner and Emily Featherstone, Associate at Kemp Little say that when drafting consumer-facing terms, commercial lawyers should keep in mind the guidance that is available from the CMA and other regulators, such as the Information Commissioner. They should also maintain the right balance of power between trader and consumer. Terms which fail to do so are most likely to be challenged, and ultimately may fail to protect the trader in any way if set aside by a court.
Data protection: ICO issues fine of £70,000 for nuisance calls
The Information Commissioner’s Office (ICO) has issued marketing company Direct Security Market Ltd with a monetary penalty of £70,000 after the firm was found to have made nearly 40,000 nuisance phone calls, many of which were made in the middle of the night.
The penalty notice features details of the type of complaints the ICO received in relation to the company, among which was that of a 72-year-old complainant with a heart condition who received a call while sleeping.
The ICO, acting within its mandate as provided by the Data Protection Act 1998 (DPA 1998), s 55A, is entitled to serve a person/company with a monetary penalty if it is satisfied that there has been a serious contravention of the requirements of the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426. The Regulations prohibit transmitting or instigating communications comprising recorded matter for direct marketing purposes by means of an automated calling system.
The monetary penalty comes the same week as another company was issued with a monetary penalty notice of £80,000 by the ICO for cold calling people registered with the Telephone Preference Service. Fines of this sort are becoming more prevalent and organisations need to ensure that they are not making nuisance calls in breach of the legislation.
Public procurement: Crown Commercial Service issues PPN on boycotts
The Crown Commercial Service has issued a Procurement Policy Note (PPN) which makes clear that procurement boycotts by public authorities are inappropriate, except where government has put in place formal legal sanctions, embargoes and restrictions. Any public body found to be in breach of new regulations could be subject to penalties.
The PPN affects all contracting authorities, including central government, executive agencies, non-departmental public bodies, the wider public sector, local authorities and NHS bodies. It sets out the international obligations of contacting authorities when letting public contracts.
The World Trade Organisation Government Procurement Agreement requires signatories to treat suppliers equally. The agreement includes the EU and Israel so any discrimination against Israeli suppliers involving procurements would therefore be in breach of the Agreement. Existing government guidance advises UK businesses to consider any potential legal and economic risks of trading or investing overseas (including with Israel).
The PPN is in line with existing government policy, which requires clear and transparent labelling of settlement products to ensure individual consumers are able to make informed choices before they buy.
Modern Slavery Act: reminder
Organisations and lawyers advising them should keep in mind that the Modern Slavery Act came into force in October 2015.
Section 54 of the Act requires organisations that fall within the Act’s criteria to publish an annual slavery and human trafficking statement. If your client or organisation’s financial year ends before 31 March 2016 you do not need to publish a statement for the current financial year, but will need to do so for the following financial year. If your organisation or client’s financial year ends on or after 31 March 2016 you do need to prepare a statement, and publish this as soon as reasonably practicable after, and at the very latest within six months of year end.
If Section 54 does not apply to your client, they may still wish to consider introducing some or all of its requirements to prevent modern slavery in their organisation and supply chains.
Supply of goods and services: Government proposes changes to Enterprise Bill
The Government is planning a package of measures on Sunday trading that will be brought forward in the draft Enterprise Bill.
New powers to devolve Sunday trading laws to local authorities will allow councils to ‘zone’ any relaxation so they will be able to prioritise high streets and city centres. This will mean councils can help drive footfall to struggling high streets by allowing them to open longer.
The measures also include greater freedoms for shop workers in England, Scotland and Wales to opt-out of working Sundays if they choose to, for example because they object on religious grounds or for family reasons. Shop workers will now be able to give one month’s notice to large shops that they no longer want to work Sundays, down from the previous three months, and will have a new right to opt-out of working additional hours. The government will also strengthen the duty on employers to notify employees of their rights about working on Sundays.
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