HomeInsightsNeed to Know – 22.02.16

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General

High Court finds time bar clause in sub-contract for building works unenforceable.

Technology

CAP Compliance team launches sector-compliance project in computing sector.

PhonepayPlus publishes consultation on five pieces of Guidance for providers of Premium Rate Services.

European Commission launches Online Dispute Resolution platform.

Government publishes consultation on requiring age verification for pornographic content online.

PhonepayPlus seeks suggestions for new name and new statement of purpose.

Data Protection

Law Society welcomes recognition of right to confidential legal advice by Joint Committee on draft Investigatory Powers Bill.

Information Commissioner’s Office fines two companies for nuisance phone calls.

Council of European Union (Economic and Financial Affairs) adopts political agreement on text of General Data Protection Regulation and on Data Protection Directive.

Article 29 Data Protection Working Party publishes Statement on its 2016 action plan for implementation of General Data Protection Regulation (GDPR).

European Data Protection Supervisor welcomes EU-US Umbrella Agreement, but stresses need for effective safeguards.

Science and Technology Select Committee publishes report on big data.

Music

UK Music and Featured Artists Coalition welcome Government clarification on tax relief for recording artist advances.

Publishing

High Court grants interim injunction from harassment to two residents of USA.

News Media Association seeks protection for journalistic material in miscarriage of justice investigations.

Gambling & Betting

Council of Europe and ESSA (Sports Betting Integrity) announce international project to “Kick Crime Out Of Sport”.

Upper Tribunal finds Gambling Commission acted within its powers when it refused to grant Greene King a bingo operating licence to provide commercial bingo in its pubs.

Advertising

Committees for Advertising Practice publish guidance note on “native” advertising.

General

High Court finds time bar clause in sub-contract for building works unenforceable.

The High Court has ruled, albeit obiter, that a clause in a sub-contractor’s terms and conditions, which required notification of any claim within 28 days of any alleged defect or in any event within a year of completion of the sub-contracted works, failed the test of reasonableness under the Unfair Contract Terms Act 1977 and was therefore unenforceable.

The dispute concerned allegedly defective ground compaction work at a development in Kent.  Clause 12(b) of the sub-contractor’s standard terms and conditions required the notification of any claim to be made in writing within 28 days of the appearance of any alleged defect, or of the occurrence of the event complained of, and in any event to be “so notified within one calendar year” of the date of completion of the works.

Mr Justice Edwards-Stuart accepted that commercial parties are generally entitled to allocate the risk as they think fit, but held that the clause failed the reasonableness test under UCTA.  In particular, the judge held that it was not reasonable to expect, at the time when the sub-contract was made, that compliance with the 28 day time limit and the requirement to make a claim within a year would be achievable, let alone practical, save in rare cases.  In practical terms the only operative trigger which would start the running of the 28-day time period under clause 12(d) was the appearance of any alleged defect since any defect in the ground compaction work would never be visible itself because it would be concealed by the structure above it.  There would therefore often be a substantial lapse of time between the carrying out of the work and the chance of any visible distress to the structure of the building and an even longer lapse of time until the likely cause of that distress was established as a defect in the works carried out by sub-contractor (Commercial Managements (Investments) Ltd v Mitchell Design and Construct Ltd [2016] EWHC 76 (TCC) (20 January 2016) – to read the judgment in full, click here).

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Technology

CAP Compliance team launches sector-compliance project in computing sector.

Following proactive monitoring and a recent increase in complaints, CAP says it is now working with eBay to communicate and enforce a 2010 ASA ruling (against Central Computers Corporation (UK) Ltd) which essentially prohibits advertisers from combining the speeds of two or more individual PC processors to give an overall speed.  In that case, an ad for a computer on an internet auction site was headlined “DUAL CORE 4.4GHZ”.  Text below stated “CPU Speed 2200mHz x2 (2.2Ghz x2) Older P4 Equal To A Powerful 8GHZ!”.  The ASA upheld a complaint that the ad was misleading because it was inaccurate to combine the speeds of two independent cores of a dual core computer to give an overall speed.  The ASA noted that the two processors within the computer worked independently of one another and although they enabled the computer to multi-task more efficiently, the overall speed of the product was not calculated on the accumulation of those two processors’ individual speeds.

CAP now expects affected advertisers to take immediate action to ensure their listings, websites and other ads are compliant.  The Compliance team will closely monitor listings in this sector from 21 March 2016, with a view to taking enforcement action against non-compliant advertisers from that date.  To read the CAP press release “A process of Compliance: Multi-core processor speeds” (18 February 2016) and for a link to the ASA Ruling on Central Computers Corporation (UK) Ltd (7 July 2010), click here.

PhonepayPlus publishes consultation on five pieces of Guidance for providers of Premium Rate Services.

PhonepayPlus has published a public consultation on five pieces of Guidance that have been amended or developed afresh.  The regulator says that it is “seeking to offer clear and accessible Guidance to PRS providers and other stakeholders”.

The consultation comes after PhonepayPlus undertook a widespread review into its current Guidance.  The “Guidance Development Project” considered each piece of Guidance and whether it required amendment.  PhonepayPlus says that scoping activities during the review included close dialogue with industry representatives to test the regulator’s own analysis.

The five pieces of Guidance that have been amended or developed afresh relate to:

  • advice services;
  • digital marketing and promotions;
  • enabling consumer spend control;
  • method of exit from a service; and
  • subscription services.

PhonepayPlus has also published a summary assessment of all the Guidance in question.

Guidance on addressing vulnerability was considered as part of the review.  Following initial consultation with industry and other stakeholders PhonepayPlus has decided to consult separately on this issue in the Spring.

The consultation runs until 11 April 2016.  To access the consultation and for details on how to respond, click here.

European Commission launches Online Dispute Resolution platform.

The Commission says that the Online Dispute Resolution (ODR) platform offers a single point of entry that allows EU consumers and traders to settle their disputes in relation to both domestic and cross-border online purchases.  This will be achieved by directing disputes to national Alternative Dispute Resolution (ADR) bodies that are connected to the platform and have been selected by Member States according to qualifying criteria and notified to the Commission.

Key features of the platform include:

  • it is user-friendly and accessible on all types of devices. Consumers can fill out the complaint form on the platform in three simple steps;
  • it gives users the opportunity to conduct the entire dispute resolution procedure online; and
  • it is multilingual, with a translation service being available on the platform to assist disputes involving parties based in different European countries.

Around 117 ADR bodies from 17 Member States are connected to the ODR platform.  The Commission says that it is working with Member States to achieve full coverage of all Member States and sectors as soon as possible.

The Commission says that ADR offers a quick and inexpensive way to solve disputes.  On average, it takes a maximum of 90 days for cases to be solved.  The experience of European consumers who have used ADR tends to be positive: 70% were satisfied by the way their complaint was handled through this procedure.  The ODR platform does not replace the possibility of going to court, which is however more costly and takes longer (only 45% of consumers are satisfied by the way a court handled their complaint according to the Commission).

Traders will also benefit from the new platform, the Commission says, as ADR procedures will help them avoid costly litigation fees and maintain good customer relations.

Now that the ODR platform is live, obligations under the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 will now apply.  To read the Commission’s press release in full, click here.

Government publishes consultation on requiring age verification for pornographic content online.

The Government has confirmed that all pornographic websites will require some form of age verification in the future, preventing vulnerable children from accessing potentially damaging material.

A consultation has been launched outlining the Government’s preferred approach, which, the Government says, “puts responsibility squarely on the shoulders of companies who create and profit from online pornography”.

Alongside the legal requirement for companies to put in place age verification technology, the Government says that it will also establish a new regulatory framework to monitor and enforce compliance, with the ability to impose civil sanctions where breaches are identified.

Publication of the consultation follows discussions with a range of stakeholders, including internet providers, social media and search companies, charities, academics and others.  This has, the Government says, allowed it to formulate its preferred approach, which it is now consulting on and seeking views.

Under the proposals set out in the consultation, the Government will:

  • establish a new requirement in law for commercial providers to have in place robust age verification controls for online pornographic content in the UK;
  • legislate to establish a new regulatory framework, underpinned by civil sanctions. Such regulatory framework and civil regime will:
    • involve giving a regulator or regulators powers to enforce the new law, supported by a sufficiently flexible enforcement regime;
    • monitor compliance with the new law by commercial pornography providers;
    • enable those that support the business model of pornographic content providers (such as payment providers, advertisers and other ancillary services) to withdraw services from commercial providers in breach of the law;
    • impose sanctions where breaches have been identified and providers remain non-compliant; and
    • give the regulator discretion to set and monitor standards for age verification controls.

The Government says that the move to make age-verification a legal requirement forms part of a broader commitment by the Government to make the internet a safer place for young people.  The Government says that it will build on existing measures by tackling these issues further, addressing cyber bullying, sexualised content, self-harm and suicide sites, extremism content, and child sexual abuse online.

The consultation runs until 12 April 2016.  To read the Government’s press release in full and for a link to the consultation, click here.

PhonepayPlus seeks suggestions for new name and new statement of purpose.

After conversations with industry and others, PhonepayPlus has decided to change its name.  It says that it wants to develop a name that will explain its role more clearly for consumers and stakeholders and reflect and support competition, innovation and investment in the market that it regulates.

It will not be hiring consultants or spending lots of money to choose a new name and statement of purpose for PhonepayPlus, instead it is asking for suggestions from stakeholders and staff.

For the next four weeks and, PhonepayPlus says, “in the spirit of being an open and collaborative regulator”, it will be taking suggestions for a new name and a new statement of purpose, a short phrase or sentence explaining the organisation’s role.  There will be a modest prize for the best contribution, donated by Chairman David Edmonds.

PhonepayPlus says that it is looking for a name and a statement of purpose that will “make clear to all what the organisation is and does”, that it regulates payments charged to a phone bill and that it wants to “support a healthy market and to promote good outcomes for consumers”.  Its Communications Team will also be having wider conversations with industry members who are interested in contributing to this work.

The new name and statement of purpose will be announced in early summer and implemented later in the year.

In short, the regulator wants the new name to be:

  • short and snappy;
  • clear and not too complicated;
  • straightforward and plain that it is a regulator and what it regulates.

For further information and details of how to take put forward suggestions, click here.

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Data Protection

Law Society welcomes recognition of right to confidential legal advice by Joint Committee on draft Investigatory Powers Bill.

As reported last week in N2K, the Joint Select Committee published its report on the draft Investigatory Powers Bill finding that important clarity was lacking in a number of areas.

The Joint Committee made 86 detailed recommendations aimed at ensuring that the powers within the Bill are workable, can be clearly understood by those affected by them and have proper safeguards.  The Law Society has welcomed the Joint Committee’s call for protection for legal professional privilege to be included on the face of the Bill and not solely in a Code of Practice.  It also welcomed the Joint Committee’s recommendation that the Home Office review its proposals in the light of the European Convention on Human Rights and relevant case law.

In December 2015, the Law Society called for explicit statutory protection for legal professional privilege in its evidence to the Joint Committee on the Bill.

Law Society president Jonathan Smithers said: “Legal professional privilege is vital to the administration of justice.  It protects a client’s fundamental right to be candid with their legal adviser without fear that someone is listening in.  The Law Society has long called for appropriate statutory protection for legal professional privilege to be included as an explicit part of intrusive surveillance legislation.  As recommended by the committee, we will be happy to work with the Home Office and others to determine how this can best be achieved”.  To read the Law Society’s press release in full, click here.

Information Commissioner’s Office fines two companies for nuisance phone calls.

Direct Security Marketing Ltd, based in Dudley, which made thousands of nuisance phone calls in the middle of the night, has been fined £70,000 by the ICO, whilst a Manchester company, MyIML, has been fined £80,000 for cold calling people registered with the Telephone Preference Service (TPS).

Direct Security Marketing made nearly 40,000 automated calls in just one day in an attempt to sell burglar alarms.  Of these, 9,775 were made between 1am and 6am.

Andy Curry, the ICO’s Group Enforcement Manager, said: “Elderly people were among those who were left distressed after being woken up in the night by the automated calls.  It’s natural when the phone rings in the early hours to fear it’s bad news and perhaps a relative is seriously ill, and that’s what people who received these calls told us they thought.  Automated calls at any time can leave people feeling unsettled but to receive a call trying to sell you a burglar alarm in the middle of the night must have been very frightening”.

The automated calls, made from a withheld number, were received by residents early on 24 August 2015 and invited them to purchase a security system.

The ICO began an investigation into Direct Security Marketing after receiving complaints.  The company admitted that it did not have consent from the individuals they had called.

During the course of the investigation, the ICO had discovered that Direct Security Marketing had not notified the ICO that it was processing personal data and it was prosecuted at Dudley Magistrates’ Court for this offence.  The company pleaded guilty and last November was fined £650, ordered to pay costs of £492.78 and a £65 victim surcharge.  The company’s director, Antonio Pardo, was also prosecuted over the offence.  He pleaded guilty and was fined £534, ordered to pay £489.08 costs and £53 victim surcharge.

As for MyIML, the company had telephoned people, many of whom were registered with the TPS, to try and sell solar panels and other green energy saving equipment.

The ICO began making enquiries into MyIML’s practices after receiving a large number of complaints about the firm in 2013.

MyIML told the ICO that it had purchased the data it used to make the calls from a third party.  The ICO told the company this was no excuse for making calls to TPS subscribers and ordered the company to improve its compliance with the law.

However, the ICO continued to receive complaints about MyIML from individuals registered with the TPS.  As a result, the ICO decided to fine the firm for breaking the rules on marketing calls.  To read the ICO’s press release in full and for links to the penalty notices issued, click here.

Council of European Union (Economic and Financial Affairs) adopts political agreement on text of General Data Protection Regulation and on Data Protection Directive.

On 18 December 2015, the Permanent Representatives Committee confirmed the compromise texts agreed with the European Parliament on data protection reform.

After a legal-linguistic review of the texts, they will be submitted for adoption by the Council and, subsequently, by the European Parliament.

The Regulation and the Directive are likely to enter into force in Spring 2016 and will be applicable as of Spring 2018.  For further information, see Outcome of the 3445th Council Meeting — Economic and Financial Affairs (12 February 2016), which can be accessed here.

Article 29 Data Protection Working Party publishes Statement on its 2016 action plan for implementation of General Data Protection Regulation (GDPR).

The Statement notes that, as the GDPR is close to adoption, the Article 29 Data Protection Working Party must develop guidelines, tools and procedures so that the new legal framework will be effective as soon as it comes into force in 2018.

Accordingly, the Working Party has developed an action plan for 2016 that sets out the priorities for the Working Party in preparing the transition to the new legal framework, in particular the establishment of the new European Data Protection Board (EDPB), which will replace the Working Party.

The Working Party’s action plan is based on four key areas:

  1. setting up the EDPB structure in terms of administration (e.g. IT, human resources, service level agreements and budget): a task force has been set up with the Chair, Vice-Chairs and the European Data Protection Supervisor as the secretariat that will be safeguarded by the EDPS under the instructions of the Chair of the EDBP.  A key element will be the development of an IT system for the EDPB in the context of the one-stop-shop.  The task force will also work on human resources, budget implications and the future rules of procedure of the EDPB;
  2. setting up the one-stop-shop and the EDPB consistency mechanism: this will require the development of several building blocks of the GDPR, such as, designation of a lead data protection authority, the one-stop-shop on enforcement cooperation and the EDPB consistency mechanism;
  • issuing guidance for controllers and processors: priority subject areas have been chosen by the Working Party on which guidelines will be produced to help data controllers and processors prepare for when the legislation enters into force:
    1. the new portability right;
    2. the concept of “high risk” and Data Protection Impact Assessments;
    3. certification; and
    4. data protection officers.
  1. communication around the EDPB/GDPR: this new legal body of the EU must be visible and identifiable as a key player whose legitimacy stems from the DPAs. This will involve:
    1. creation of an online communication tool;
    2. strengthening relationships with EU institutions, agencies or other supervision groups;
    3. participation in external events to promote the new governance model.

The Working Party says that this action plan will be reviewed periodically and will be complemented in 2017 with new objectives and deliverables.

The Working Party will also regularly consult relevant stakeholders in order to exchange views on implementation of the GPDR.

The Working Party has also published its Work Programme for 2016 to 2018.  To read the Statement in full and to access the Work Programme, click here.

European Data Protection Supervisor welcomes EU-US Umbrella Agreement, but stresses need for effective safeguards.

In his Opinion, published on 12 February 2016, the European Data Protection Supervisor expressed his support for the EU-US Umbrella Agreement initiative.  He recommended three essential improvements in the arrangement designed to set a global precedent for the sustainable sharing and transfer of personal data for law enforcement purposes, and to increase trust between the two countries.  He also encouraged other clarifications before the Agreement is signed.

The EDPS notes that the last round of negotiations on the Umbrella Agreement concluded before recent legal developments (in particular, the political agreement on the EU data protection reform package and the Court of Justice of the European Union’s ruling in the Schrems case).  In the light of this, the EDPS says that some improvements and clarifications necessary to ensure that the proposed Agreement reflects recent developments.

In his Opinion, the EDPS provides constructive and objective advice on the clarifications and improvements necessary to ensure that the proposed Agreement adequately upholds the rights of individuals.  Particular concerns include: (i) the effectiveness of judicial redress; (ii) the prevention of the bulk transfer of sensitive data; and (iii) ensuring that all safeguards will apply to everyone protected by the Charter, not only EU nationals.

By providing a framework for transatlantic data transfers, the EU-US Umbrella Agreement should show how the EU can lead by example in reinforcing the rights to privacy and the protection of personal data.

Giovanni Buttarelli, EDPS, said: “Globalisation means that governments are working harder than ever to combat crime which implies more structured sharing of relevant information.  The EU-US Umbrella Agreement may set a new international standard.  To succeed, we encourage the Parties to carefully consider significant recent developments.  They will help to introduce an arrangement fully compatible with the EU constitutional principles, in particular the EU Charter of Fundamental Rights”.  To read the EDPS press release in full and for a link to the Opinion, click here.

Science and Technology Select Committee publishes report on big data.

The Committee says that 58,000 jobs could be created and £216 billion contributed to the UK economy (2.3% of GDP) over a five-year period.

However, the Committee warns that existing data is nowhere near fully exploited.  Companies are analysing just 12% of their data, and if “data-phobe” businesses made good use of their data they could increase UK productivity by 3%.  The Government can also do more to make its own databases open and share them with businesses, and across Government departments to improve and develop new public services.

A big data revolution will need action, the Committee warns, on digital skills and infrastructure, and also on people being able to give their informed consent for how their personal data is used.

While personal data is only a small proportion of big data, given the scale and pace of data gathering and sharing, distrust arising from concerns about privacy and security is often well founded and must be resolved by industry and Government if the full value of big data is to be realised, the Committee warns.  For further information and for a link to the report, click here.

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Music

UK Music and Featured Artists Coalition welcome Government clarification on tax relief for recording artist advances.

Music trade organisations, UK Music and the Featured Artists Coalition, sought formal clarification from HM Treasury on the ability of creators to average profits in successive years within the existing tax framework, and specifically whether this could be applied directly to artist advances.

In a letter responding to both organisations, David Gauke MP, Financial Secretary to the Treasury said: “I am happy to confirm that the advance of royalties are within the scope of the averaging rules for creators of literary or artistic work. The advance of royalties is exactly the sort of situation these provisions are intended to address for creative artists such as recording artists”.

Mr Gauke also welcomed the industry’s offer of input into how HMRC could better define averaging rules within tax guidelines.

Sandie Shaw, Chair of the FAC said: “Recording artists are prone to fluctuating finances.  A very good year can then often be followed by one which isn’t so profitable.  I am delighted that there is a mechanism in place which can allow Featured Artists Coalition members to not be disadvantaged by the tax system and one that respects the nature of our creative endeavours”.

Jo Dipple, CEO of UK Music said: “I am pleased that Government has clarified that recording artists must be treated by HMRC the same way as other creators with regards the averaging of profits over successive tax years.  I encourage eligible artists to make full use of this clarification”.  To read UK Music’s press release in full, click here.

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Publishing

High Court grants interim injunction from harassment to two residents of USA.

The claimants, Dr and Mrs Weiss, were Americans living in Colorado.  They ran a travel agency called Power Places Tours Inc, which specialised in tours to sacred places.  The defendant, whose name was Mr Free Spirit, booked a holiday with Power Places Tours, which he subsequently had to cancel, but too late to obtain a refund.

Being in dispute with Power Places Tours over the issue of a refund, Free Spirit then proceeded to post a series of lengthy and critical attacks on the Weisses and people associated with them in the business on various consumer review websites.  The postings were put up from various places, probably in the UK and the European Union.  He also made frequent, unwelcome direct contacts with the Weisses by means of emails to their personal address making various threats and demands.

The Weisses issued proceedings against Free Spirit for harassment under the Protection from Harassment Act 1997 and sought interim injunctive relief.

His Honour Judge Moloney QC found that if the Weisses had been English residents the elements of harassment under the 1997 Act would be made out, since the emails showed that there had been conduct of a protracted nature on many separate occasions such that the statutory requirement of a “course of conduct” had been clearly made out.  Further, the emails were calculated to cause alarm and distress and the conduct did not appear to be reasonable or justifiable or done for one of the protected purposes referred to in the 1997 Act.  The basic elements of a good, strong harassment claim were therefore present.

Given, however, that the Weisses were American residents with no special connection to the UK, there was a potential issue as to whether English law was applicable, HHJ Moloney QC said.  The USA was the place where the harm had been suffered, meaning that the court might be persuaded to apply the law of Colorado.  Alternatively, the question might be whether the choice of law should be based on the jurisdiction from which Free Spirit had committed the alleged tort by sending his email messages.  On the facts, it was not yet clear whether that was the UK or somewhere within the EU.  Therefore, HHJ Moloney QC said, if the matter were to go to trial, it might be that English law would not be held to be applicable meaning that the relief sought might be refused.  Subject only to that reservation, however, HHJ Moloney QC considered it likely that, notwithstanding his Article 10 rights, Free Spirit would be restrained on harassment grounds from making direct communication with the Weisses.

HHJ Moloney QC concluded that, given that Free Spirit appeared to be a UK citizen and had submitted to UK jurisdiction in a previous action with the Weisses, it was more likely than not that the applicable law would be found to be UK law and that it was likely that Free Spirit would be restrained under the 1997 Act.  The order sought by the Weisses was plainly justified on the basis of the balance of convenience and justice, HHJ Moloney QC said, and appeared to satisfy the requirements of s 12 of the Human Rights Act 1998.  He therefore granted the interim injunctive relief requested.

News Media Association seeks protection for journalistic material in miscarriage of justice investigations.

The News Media Association says that a Bill to give the Criminal Cases Review Commission (CCRC) new powers to order the disclosure of information from journalists, media organisations and their lawyers when investigating miscarriage of justice “must contain better journalistic safeguards”.

The NMA explains that the CCRC, which investigates potential miscarriages of justice on behalf of defendants, currently has the power to apply to the Crown Court for an order that requires a public body to disclose information that will help the CCRC with an investigation.

A private members Bill, The Criminal Cases Review Commission (Information) Bill, seeks to extend this power to all private bodies and organisations, and during the third reading of the Bill in the House of Commons, news agencies and their legal departments were specifically identified as falling within the remit of the power, the NMA says.

According to the NMA, William Wragg MP, who introduced the Bill, specifically said that it was intended to bring “news agencies” within the scope of the CCRC, and Christina Rees MP emphasised this point by saying that the Bill would cover “journalists and legal departments of newspapers”.

In giving the Government’s support of the Bill, the Parliamentary Under-Secretary for Justice, Dominic Raab did acknowledge the importance of journalists’ sources, the NMA says, though he did not say what formal protection they would receive.

Mr Raab said: “The involvement of the court is an important safeguard in the process. The individual or the company from which any material is requested will be able to put their case to the court if they think that the information either needs to be maintained for confidentiality or should not be disclosed.

“There are safeguards for documents that are, for example, commercially sensitive or subject to legal privilege. Clinics may want to safeguard personal medical records whose disclosure could be detrimental to the patient or patients concerned, and journalists want to protect their sources. All such things can be catered for in the process”.

The NMA has written to the Minister that introduced the Bill highlighting the need for formal protections for journalistic material that are at least as strong as the provisions in PACE regarding journalistic material.

The Bill is currently making its way through the Lords, and will have its second reading on 26 February.  To read the NMA’s press release in full, click here.

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Gambling & Betting

Council of Europe and ESSA (Sports Betting Integrity) announce international project to “Kick Crime Out Of Sport”.

An international project to address match-fixing in sport kicked off today with ESSA (Sports Betting Integrity), the representative body of regulated betting firms, amongst the key stakeholders participating in the EU funded initiative that is being led by the Council of Europe.  Other key parties involved in the Kick Crime Out of Sport (KCOOS) project include INTERPOL, the International Olympic Committee and the British and French regulatory authorities.

Meeting in Brussels, stakeholders discussed the scope of the project that will seek to deliver practical resources such as the development of a Handbook on Good Practices.  There will also be a number of regional events worldwide to gather information and explore effective legislative models and tools to deal with match fixing, such as player education and information exchange.

The 18-month project was approved following the Council of Europe’s successful bid to a European Commission call for proposals on “New integrated mechanisms for cooperation between public and private actors to identify sports betting risks”. It primarily aims to raise awareness on match fixing and to promote the Council of Europe Convention on the Manipulation of Sports Competitions by:

  • assisting countries in implementing the convention nationally, including transposition of the Convention into national legislation;
  • gathering information on the current status in the fight against match fixing and sports betting regulations and to build a network of national contacts;
  • offering practical assistance and facilitating the exchange of good practices among countries through regional seminars, study visits and expert missions; and
  • assisting with the setting up of national platforms, regulatory structures and other supporting structures and strengthening the institutional capacity of relevant authorities.

To read ESSA’s press release in full, click here.

Upper Tribunal finds Gambling Commission acted within its powers when it refused to grant Greene King a bingo operating licence to provide commercial bingo in its pubs.

At the Upper Tribunal hearing, Greene King argued that the Commission had exceeded its powers when it refused to grant a licence enabling Greene King to offer bingo as well as high stakes B3 and B4 gaming machines (which allow customers to gamble up to £2 a time, with B3s having a £500 jackpot and B4s having a top prize of £400) in some of its pubs.  It argued that the Commission’s refusal trespassed on the territory of licensing authorities carrying out their premises licensing function.

The Upper Tribunal rejected those arguments.  Instead it found that the Commission has the legal power to refuse an application for an operating licence if it considers granting the application would not be reasonably consistent with the licensing objectives.  The Upper Tribunal therefore ordered the case to be sent back to the First-tier Tribunal for reconsideration.

Helen Venn, the Commission’s programme director, said: “We welcome the Upper Tribunal’s decision, which clarifies the Commission’s powers.  In our view commercial betting, gaming and bingo and any associated high stakes and prize machines, should only be provided in separate premises licensed for that specific purpose – premises that adults make a deliberate choice to visit in order to gamble”.  (Gambling Commission v GK [2016] UKUT 0050 (AAC) (10 February 2016) – to read the decision in full, click here).  To read the Gambling Commission’s press release in full, click here.

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Advertising

Committees for Advertising Practice publish guidance note on “native” advertising.

CAP notes that “contextually targeted branded content”, or “native” advertising, is designed to fit in with its online “habitat”, to give consumers a visually consistent browsing experience.  Advertisers need to ensure, however, that “native” ads remain identifiable as advertisements to avoid falling foul of the Code.

CAP’s guidance note reminds advertisers that when ads are presented in the same format as editorial content, and appear in a visually similar context on a website, it is particularly important to label them clearly so that they are distinguished from editorial content.

CAP says that there are various ways of separating ads from editorials, be it through use of graphics or audio effects.  Since “native” ads are particularly likely to blend in with their editorial surroundings, a clear and prominent label “makes all the difference”, the guidance states.

In the case of advertorials, the ASA has ruled that labels such as “sponsored”, “in association with”, “Recommended by” and “Brand Publisher” were not sufficient to identify them as marketing communications.  This also applies to the hyperlinked thumbnails that appear underneath or alongside editorials, which are commonly titled “You may also like these” or “More from around the web”.

The General Media Panel has suggested that “paid for ad”, “ad” or “ad link” are likely to be acceptable instead.  Although not all of these terms have yet been ruled on by the ASA, to make their marketing communications recognisable, advertisers are best advised to label their contextually branded content in this manner.

Advertisers should also make sure that these labels are prominently placed.  If a disclaimer, such as: “The page that you are currently reading is an ad feature”, is prominently placed at the top of the ad, as was the case in a recent ASA ruling, or right above the link to the relevant article, that will demonstrate that the advertiser is making sure consumers know what they are reading.  To read CAP’s guidance note, click here.

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