I know it's dead boring but it's important that those of us that distribute content via mobile on or behalf of others know the score from May 26th:
here is an outline:
The Regulations provide three tiers of protection for consumers by prohibiting:
1. practices which “are contrary to the requirements of professional diligence”
2. misleading practices (actions and omissions) and aggressive practices
3. 31 specific practices which are banned under all circumstances
“Professional diligence” means the standard of special skill and care which a trader may
reasonably be expected to exercise towards consumers which is commensurate with
either:
• honest market practice in the trader’s field of activity, or
• the general principle of good faith in the trader’s field of activity.
A practice will not be unfair unless it has, or is likely to have, an adverse impact on the
economic behaviour of the average consumer.
This is explained through the
transactional decision test – that it ‘causes or is likely to cause the average consumer to
take a transactional decision he would not have taken otherwise’.
“Average consumer” means:
• an average member of a particular group of consumers to whom the commercial
practice is directed; or
• average member of a clearly identifiable group of consumers whom the trader
could reasonably be expected to foresee would be particularly vulnerable to the
commercial practice or the underlying product because of their mental or physical
infirmity, age or credulity
“Transactional decision” is a very wide concept that covers any decision before, during
or after the purchase (in relation to the product), and includes the decision not to buy or
act (e.g. to exercise a contractual right)
2. Misleading and aggressive practices
A “misleading commercial practice” is one that:
• contains false information and is therefore untruthful in relation to any of the
specified matters, or if it or its overall presentation in any way deceives or is likely
to deceive the average consumer in relation to any of the specified matters, even
if the information is factually correct; and
• causes or is likely to cause the average consumer to take a transactional
decision he would not have taken otherwise.
The definition of ‘misleading actions’ also covers confusion with trade names/trade
marks, “passing off”, and infringement of a commercial practice that a trader indicates he
is bound by.
As well as creating some new concepts with statutory force in the definition of the word
‘misleading’, the Regulations outlaw ‘misleading omissions’. These are practices that
omit or hide material information, or provide material information in a manner which is
unclear, unintelligible, ambiguous or untimely.
A material omission also covers the
situation where the practice fails to identify its commercial intent, unless this is already
apparent from the context. As in all cases of unfair practice, this is explained through the
transactional decision test.
Aggressive commercial practices, which are also outlawed by the Regulations, cover the
concept of impairing the consumer’s freedom of choice/conduct through the use of
‘harassment, coercion or undue influence’ – all of which are terms that are more fully
defined in the Regulations.
3. Specific practices that are banned
There is a new range of practices that is now outlawed by Schedule 1 to the
Regulations. We identify below a limited number which service providers and others
ought to be specifically aware are:
• Not being true to the terms of the endorsement: Claiming that a trader
(including his commercial practices) or a product has been approved, endorsed
or authorised by a public or private body or making such a claim without
complying with the terms of the approval, endorsement or authorisation.
• Limited time only: Falsely stating that a product will only be available for a very
limited time, or that it will only be available on particular terms for a very limited
time, in order to elicit an immediate decision and deprive consumers of sufficient
opportunity or time to make an informed choice.
• Forcing the deal: Including in marketing material an invoice or similar document
seeking payment which gives the consumer the impression that he/she has
already ordered the marketed product.
• Advertising to children: Including in an advertisement a direct exhortation to
children to buy advertised products or persuade their parents or other adults to
buy advertised products for them.
• You can't promise a win: Claiming that products are able to facilitate winning in
games of chance.
• Winner takes nothing: Claiming in a commercial practice to offer a competition
or prize promotion without awarding the prizes described or a reasonable
equivalent.
• Use of the word “Free”: Describing a product as 'gratis', 'free', 'without charge'
or similar if the consumer has to pay anything other than:
o the unavoidable cost of responding to the commercial practice
o collecting or paying for delivery of the item.
• No win situations: Creating the false impression that the consumer has already
won or will win a prize or other equivalent benefit, when in fact either:
o There is no prize or other equivalent benefit, or
o Taking any action in relation to claiming the prize or other equivalent
benefit is subject to the consumer paying money or incurring a cost.
• Pestering the consumer: Making persistent and unwanted solicitations by
telephone, fax, e-mail or other remote media except in circumstances and to the
extent justified under national law to enforce a contractual obligation.
For more detailed information contact the Compliance Team:
By email: compliance@phonepayplus.org.uk
Recent Comments