HomeInsightsNeed to Know – 2012.07.30

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General

High Court upholds claim of repudiatory breaches of “due diligence” and “reasonable endeavours” obligations in construction contract.

Technology

European Commission consults on future EU network and information security legislative initiative.

European Commission consults on net neutrality.

Ofcom announces plans for next-generation 4G auction.

Internet Service Providers launch voluntary code of practice in support of open internet.

Nominet consults on domain expiry policy.

Broadcasting

Ofcom amends guidance on on-air warnings about charges incurred by calls made outside voting and competition windows in line with telecommunications companies’ technical arrangements and capability to terminate out-of-time calls.

Ofcom considers ITV’s treatment of Britain’s Got Talent burlesque act did not convey an overtly sexualised theme.

Ofcom considers matter of “firewall mis-configuration” in Britain’s Got Talent voting app resolved thanks to ITV’s swift action to cancel application and implement refund procedure.

Government makes Order exempting local television digital programme services from 10% independent production quota.

Litigation

Court of Appeal confirms general damages to increase by 10% from April 2013.

Publishing

Government is in breach of EU law if volunteer libraries do not make Public Lending Right payments to authors for library loans.

High Court awards £15,000 damages for breach of child’s privacy resulting from unjustified publication of photographs of the child that accompanied articles concerning the child’s paternity.

Gambling & Betting

House of Commons Culture, Media and Sport Committee publishes report on Gambling Act 2005 calling for regulation to be de-centralised.

Computer Games

Government says businesses and local and central government are working together to ensure adoption of the Pan European Game Information (PEGI) system is effective in protecting children.

Advertising

ASA finds ad that specified the end date for a promotion that was then extended was in breach of CAP Code rules relating to administration and closing dates.

General

High Court upholds claim of repudiatory breaches of “due diligence” and “reasonable endeavours” obligations in construction contract.

The High Court found a construction company that temporarily downed tools on a substantial development on the Southbank when it ran into financial difficulties in breach of its obligations under the construction contract to procure that the works were carried out “with due diligence” and to use “reasonable endeavours” to procure completion of the works.  Unexpected lack of funding explained but did not eliminate the due diligence breach and Mr Justice Roth found that the qualification of “reasonable endeavours” (as opposed to an absolute obligation to complete), covered matters directly relating to the physical completion of the works and not such things as having the financial resources to do the work at all. 

In finding that both breaches were repudiatory the judge was also clear that an ongoing breach that at the outset did not constitute a repudiation could, as it continued after a time, acquire a repudiatory character.  (Ampurius Nu Homes Ltd v Telford Homes (Creekside) Ltd [2012] EWHC 1820 (Ch) (4 July 2012 – to read the full judgment click here.)

Technology

European Commission consults on net neutrality.

The European Commission has launched a public consultation on internet transparency, switching providers and aspects of internet traffic management in line with its commitment to preserve the open and neutral character of the internet and following the recent findings of the Body of European Regulators of European Communications (BEREC) on net neutrality.

Input is sought from all interested public and private parties including fixed and mobile internet service providers, internet content and application providers (including comparison websites), equipment manufacturers, transit providers, investors, public authorities, consumers and their associations.

In particular the Commission is seeking views on:

  • internet traffic management, including congestion management, managed services and privacy issues;
  • transparency, in particular as regards actual internet performance (speed and quality) and restrictions on internet access products;
  • how easy or difficult it is for consumers to switch service providers; and
  • internet interconnection issues between network operators.

Neelie Kroes said: “Today there is a lack of effective consumer choice when it comes to internet offers.  I will use this consultation to help prepare recommendations that will generate more real choices and end the net neutrality waiting game in Europe.  Input from this consultation will help turn BEREC’s findings into practical recommendations”.

The consultation closes on 15 October 2012.  To access the consultation documentation, click here.

European Commission consults on future EU network and information security legislative initiative.

According to Commission statistics, cyber incidents are becoming more frequent.  In 2011 web-based attacks increased by 36% over one year and there was a five-fold increase in companies reporting security incidents with a financial impact between 2007 and 2010 (5%-20%).  Further, according to the World Economic Forum, the risk is growing.  In the next decade there is a 10% risk of a major “critical information infrastructure” incident, which could cause more than $250 billion in economic damage.

Cyber incidents can be triggered by accidents like natural events, human errors, and technical failures or by more sinister causes such as malicious attacks, economic espionage, terrorism and state-sponsored activity.  They can also have serious consequences for society and the economy when affecting critical sectors such as finance, health, energy and transport and erode public trust for activities online in general.

Later this year the Commission and the EU High Representative for Foreign Affairs and Security Policy will present a joint strategy on cyber security.  The overarching aim of the strategy will be “to ensure a secure and trustworthy digital environment where EU fundamental rights and core values, are promoted and protected”.  As far as network and information systems are concerned, the aim will be “to enhance preparedness, strengthen the resilience of critical infrastructure as well as to foster a cyber-security culture in the EU”.

The Commission is considering the introduction of a requirement to adopt risk management practices and to report security breaches affecting networks and information systems that are critical to the provision of key economic and societal services and to the functioning of the internet.  The only sector where companies are currently required under EU law to adopt risk management practices and to report security incidents is the electronic communications sector (telecoms operators and ISPs).

Accordingly, the Commission is seeking the views of governments, businesses and citizens about their experiences and EU possible responses to cyber incidents that cause disruption to essential network and information systems, including the internet.  The responses will help the Commission prepare a legislative proposal and its strategy on cyber security.

The consultation runs until 12 October 2012.  To read the Commission’s press release in full and for a link to the consultation documentation, click here.

Ofcom announces plans for next-generation 4G auction.

Ofcom has announced that the auction of spectrum for mobile services in the UK is set to get under way by the end of 2012, laying the path for next-generation 4G networks to be rolled out next year. 

The auction will offer the equivalent of three quarters of the mobile spectrum in use today, which is 80% more than released in the 3G auction that took place in 2000.  Ofcom says that the plans should see mobile broadband rolled out to at least 98% of people in villages, towns and cities across the UK.  4G will deliver much faster mobile data speeds to phones and other wireless devices than presently possible.

To ensure that UK consumers continue to benefit from a competitive market, Ofcom has also decided to reserve some of the available spectrum for a fourth national wholesaler (other than the three largest mobile operators).  This could be either Hutchison 3G or a new entrant altogether.

The 4G auction will offer at least two spectrum bands: 800 MHz and 2.6 GHz.  The lower frequency 800 MHz band is part of the “digital dividend”, which is ideal for widespread mobile coverage.  The higher frequency 2.6 GHz band is ideal for delivering the capacity needed to deliver faster speeds.  These two bands add up to 250 MHz of additional mobile spectrum, compared to 333 MHz in use today.

The spectrum bands will be auctioned to bidders as a series of lots.  One of the 800 MHz lots of spectrum will carry an obligation to provide a mobile broadband service for indoor reception to at least 98% of the UK population by the end of 2017 at the latest.

The 800 MHz spectrum is well suited to providing high levels of coverage, Ofcom says, and it anticipates that imposing the obligation on one operator will drive other operators to extend their own coverage in response.

Given that it is easier to provide coverage outdoors than indoors, a network meeting this obligation is likely to cover more than 99% of the UK by population when outdoors.  In addition, Ofcom has decided to require that the same operator provide the same indoor service to at least 95% of the population.

Ofcom expects the auction process to start before the end of this year.  Prospective bidders are required to apply formally in order to take part.  Ofcom will then assess those applications before the bidding phase starts, which is likely to be in early 2013.

Mobile operators are expected to start rolling out 4G networks using the auctioned spectrum from the middle of 2013, and to start offering 4G services to consumers later that year.  To read Ofcom’s press release in full and for a link to the full statement, click here.

Internet Service Providers launch voluntary code of practice in support of open internet.

The Code, facilitated by the Broadband Stakeholder Group, commits ISPs to the provision of full and open internet access products and confirms that traffic management practices will not be used to target and degrade the services of a competitor.  The initiative builds on the transparency code of practice published in 2011, which ensures that clear, understandable and comparable information on traffic management practices is available to consumers.

New commitments set out in the code confirm that signatories will:

  • ensure that full and open internet access products, with no blocked services, will be the norm within their portfolio of products:
  • provide greater transparency in instances where certain classes of legal content, applications and/or services are unavailable on a product.  These products will not be marketed as “internet access” and signatories will be obliged to ensure that any restrictions are clearly communicated to consumers;
  • not target and degrade the content or applications of specific providers.

A new process is also being established to allow content providers to raise potential cases of targeted and negative discrimination with ISPs.  If they are not satisfactorily resolved, these issues will be lodged with the Broadband Stakeholder Group who will share them with Ofcom and government.

The commitments in the Code are in line with recent UK and EU policy makers’ remarks on the open internet and net neutrality.

The current signatories of the code are: BE, BT, BSkyB, KCOM, giffgaff, O2, Plusnet, TalkTalk, Tesco Mobile and Three.  To read BSG’s press release in full and for a link to the Code, click here.

Nominet consults on domain expiry policy.

Nominet is asking for feedback on a number of areas, such as whether registrars should be permitted, with the consent of the registrant, to take control of a domain name within the 90 day expiry period; whether inclusion in the contract at the point of registration is sufficient for obtaining such consent; and whether registrars should be required to issue a renewal reminder to the registrant at least 30 days before expiry.

The consultation follows the work of the issue group formed by Nominet, which has met four times since September 2011, and which has resulted in an amended set of draft recommendations incorporating feedback from stakeholders.  Nominet will consider and assess these recommendations together with the feedback from the consultation.

The consultation closes on 3 September 2012.  For a link to the consultation documentation, click here.

Broadcasting

Ofcom amends guidance on on-air warnings about charges incurred by calls made outside voting and competition windows in line with telecommunications companies’ technical arrangements and capability to terminate out-of-time calls.

Ofcom’s Guidance Note to Section Two of the Broadcasting Code has for some years included the following guidance about the use of premium rate telephony services (PRS) in relation to Rules 2.13 to 2.16 (Broadcast competitions and voting):

Generally, because network charges may be incurred, broadcasters should make clear to audiences that early or late calling may attract some charge.

In line with this guidance, at the time of any on-air calls to action to call a PRS line for a competition or for voting, broadcasters often give a warning such as: “Please do not call before the lines open or after the lines have closed as your vote/entry will not be counted, but you may still be charged.”

Given evidence which demonstrates that all charges can be avoided if suitable technical arrangements are made by the telecommunications company responsible for terminating calls to the numbers used by the broadcaster, Ofcom has amended the guidance to state explicitly that a broadcaster need not give such on-air warnings provided it has ensured that the telecommunications company it is working with has made the necessary technical arrangements so that an out-of-time call to the phone numbers it publicises as part of votes, competitions and so on will incur no charge at all.

The note on the amendment also gives broadcasters wishing to avoid giving warnings about out-of-time calls three important points to consider:

  • the changes do affect the general need to make audience competition and voting deadlines absolutely clear to the audience to ensure compliance with Rules 2.13 to 2.16.
  • the absence of a warning about out-of-time voice calls should not obscure any clarification about charges for out-of-time texts, if applicable.
  • broadcasters who do not include carriage or network cost on-air warnings will be expected in the event of challenge to be able to demonstrate to Ofcom the steps they have taken to avoid any charge being applied to out-of-time calls and to demonstrate that these steps are fully effective.

To read the amended guidance in full, click here.

Ofcom considers ITV’s treatment of Britain’s Got Talent burlesque act did not convey an overtly sexualised theme.

Ofcom considered complaints in relation to episodes and repeats of the early audition stage and the live semi-final of Britain’s Got Talent shown at various pre-watershed times from 1pm to 8pm.  One of the performances was a burlesque act performed by a woman named Beatrix Von Bourbon during which she removed her skirt, jacket and bra (underneath she wore nipple tassels and her breasts were masked with an on-screen graphic), leaving her wearing a corset, knickers, stockings and shoes. 

Complainants considered the programme material contained images and themes unsuitable for a child audience. 

ITV said that the act drew on a tradition of “saucy” British humour, rather than being overtly erotic or sleazy.  It said that the performance was carefully edited with wide shots masked appropriately and cutaways so as not to linger on the removal of clothing or partial nudity and to “render the performance as a whole suitably inexplicit”.  With regard to audience expectations, ITV said that in previous series the programme had featured burlesque acts and other types of acts that had not caused widespread offence or complaint. 

Ofcom said that, in view of the similar acts broadcast in previous series, this burlesque performance would not have exceeded the likely expectations of the vast majority of the audience – either when originally broadcast or when repeated.  It noted that the performance was mostly shot from a wide angle (so minimising the potential impact of the flirtatious or limited sexualised overtones of the act) and as ITV highlighted was “carefully edited” to ensure that there were no close up images, or images of any significant duration, that focused on her removing her clothes or her partial nudity. 

Ofcom acknowledged that some viewers might find the sexualised nature of burlesque performances potentially offensive.  However, it noted that the images of Ms Von Bourbon adopting mildly provocative positions and limited and partial nudity were fleeting, and the act itself was performed in the manner of a dance that required skill and training.  That said, Ofcom considered that the very brief image of the performer’s partially obscured buttocks when she unzipped her skirt was “on the margins of acceptability”. 

Because Ofcom considered that ITV had taken adequate steps to limit the images of nudity and ensure the material was suitable for broadcast before the watershed, the programme was found not in breach of Rule 1.3 (appropriate scheduling).  To read Ofcom adjudications on Britain’s Got Talent and Britain’s Got Talent: Live Semi-final published in Issue 210 of the Broadcast Bulletin, click here.

Ofcom considers matter of “firewall mis-configuration” in Britain’s Got Talent voting app resolved thanks to ITV’s swift action to cancel application and implement refund procedure.

For the 2012 series of Britain’s Got Talent, one way that viewers could vote was via a downloadable smartphone application.  Users of the app could purchase three votes for £1.49 for use during any voting period in the series.  A viewer alerted Ofcom to a technical problem with the app after receiving an error message when attempting to use purchased votes.

ITV attributed the problem to a “firewall mis-configuration” on the part of the voting platform provider explaining that the platform’s firewall was not able to process the high volume of interactions that occurred directly after voting lines opened.  ITV decided to discontinue the app for the rest of the series and implement refund procedures for those who had purchased unused votes.

Ofcom said that viewers were effectively misled, albeit unintentionally, by the inability of the app to handle demand when voting opened.  It was concerned that a significant proportion of viewers who had responded to the programme’s invitation to purchase voting credits via the app were unable to use them.  Ofcom was of the view that the cause of the problem contained elements both of preventable design weakness and less easily anticipated patterns of demand.  However, in view of ITV’s remedial measures, which included swift action to cancel the application and provide details of how users could obtain a refund as well as a review of its processes to avoid a recurrence should it use a similar voting mechanism in future programming, Ofcom considered the matter resolved.  It nevertheless stressed that in future, when launching new interactive applications that are untested, it expects all broadcasters to take a precautionary approach to the trial and deployment of any new technology.  To read Ofcom’s adjudication on Britain’s Got Talent published in Issue 210 of the Broadcast Bulletin, click here.

Government makes Order exempting local television digital programme services from 10% independent production quota.

As part of its development of local TV, the Government has made the Broadcasting (Local Digital Television Programme Services and Independent Productions) (Amendment) Order 2012, which amends: 1) the Local Digital Television Programme Services Order 2012 (“the Local Television Order”), which provides that specified provisions of Part 1 of the Broadcasting Act 1996 and Part 3 of the Communications Act 2003 are to have effect with modifications in relation to the provision of local digital television programme services in the UK; and 2) the Broadcasting (Independent Productions) Order 1991, which defines “qualifying programmes” and “independent productions”.

The Order enables Ofcom to include, in a licence to provide a local digital television programme service that is held by a producer, appropriate conditions to ensure that the licence holder provides Ofcom with information to allow it to determine whether that licence holder is an independent producer.

Article 4 of the Order modifies Part 3 of the 2003 Act so that s 309 of that Act (covering quotas for independent programmes) does not have effect in relation to the provision of local digital television programme services.

The Order also changes the definition of “independent producer” to allow an independent producer to own up to 100% of a local digital television programme service.

The limits on share ownership will continue to apply to a producer who holds a share in a local television broadcaster if the provision of relevant regulated television services is the main activity of the producer.  In addition, those limits will continue to apply where a producer has a shareholding in a person who is connected to a local television broadcaster, and where the person in whom the producer has the shareholding either is a broadcaster other than a local television broadcaster, or is connected with a broadcaster who is not a local television broadcaster.  To read the Order in full, click here.

Litigation

Court of Appeal confirms general damages to increase by 10% from April 2013.

The Court of Appeal has handed down a judgment that will lead to a 10% increase in general damages in most civil cases.  The guidelines cover the level of general damages for pain, suffering and loss of amenity in respect of personal injury, nuisance, defamation and all other torts which cause suffering, inconvenience or distress to individuals.

The wider context for the judgment is the package of measures recommended in the final report of the Review of Civil Litigation Costs produced by Lord Justice Jackson in January 2010 due to be implemented in large part in April 2013.  Many of the Review’s recommendations have been enacted by Parliament in the Legal Aid Sentencing and Punishment of Offenders Act 2012.  However, the 10% increase in general damages, which is an integral part of the new overall costs regime, was not included in the 2012 Act because, as Lord Diplock observed in a judgment in a personal injury appeal in 1983, the Court of Appeal is “generally speaking the tribunal best qualified to set guidelines for judges trying such actions”.

In the judgment, the Court of Appeal stated: “This court has not merely the power, but a positive duty, to monitor and where appropriate to alter, the guideline rates for general damages”.  The 10% increase will apply to all cases where judgment is given after 1 April 2013.  The judgment explained that early notice was being given to enable all parties engaged in or contemplating litigation to be aware of the impending change, and prepare accordingly.  (Christopher Simmons v Derek Castle [2012] EWCA Civ 1039 – to read the judgment in full, click here).  To read the Judicial Office press release in full, click here.

Publishing

Government is in breach of EU law if volunteer libraries do not make Public Lending Right payments to authors for library loans.

PLR is, the Society says, particularly important to authors whose books are sold mainly to libraries and to those whose books are no longer in print but are still being read.  Although PLR is a legal right rather than a grant or subsidy, its funding has already been subject to significant cuts and the Society continues to press for funding to be reinstated.  The Society says that if PLR is not paid on loans from volunteer libraries, it would be unlawful.

The Public Lending Right Registrar, Jim Parker, has said that under existing legislation, PLR payments to authors for their library loans would not apply to books loaned by volunteer-run libraries no longer run by local authorities.  In response to a query from Lewisham library campaigners, Jim Parker said: “Under the PLR legislation, PLR only applies to public libraries administered by local library authorities as defined by the Public Libraries Act (1964).  This, therefore, would exclude library branches no longer run by the local authority and taken over by voluntary groups”.  However Jim Parker also said that it would be a “grey area” in locations where local authorities were allowing volunteers to run branches while still remaining under their umbrella.

Accordingly, in May 2012 the Society wrote to Louise Mensch MP to put forward the views of authors in relation to libraries, particularly as concerns the Public Lending Right and volunteer-run libraries.  The letter asked Louise Mensch to confirm that PLR would continue to be paid, whoever runs the library. 

The Society then wrote to Culture Minister, Ed Vaizey, on 17 July 2012, saying that the “DCMS has now confirmed that it is their understanding that the new community libraries are not covered by PLR, as they are outside the statutory library service.  Under the [Rental and Lending Right] Directive [(92/100/EEC)] authors are entitled to equitable compensation for any such loans.  However, it seems that the Government may have failed in its obligations to enact appropriate UK law for this purpose”.  The letter continued: “We urge the government to provide clear guidance to volunteers and the PLR issues on how these issues are to be tackled without delay and to explain how this model satisfies the requirement to provide a comprehensive library service”.

The letter also reiterated the Society’s call for the Government to extend PLR to e-book and audiobook loans as it is meant to be under s 43 of the Digital Economy Act 2010, saying that the payments have never been implemented, which is “patently unjust”.

The Society was not satisfied with the response from Mr Vaizey.  Accordingly, it has written to the Minister again on 23 July 2012, reiterating the main point that, under the 1992 Directive, authors are entitled to equitable compensation for the loan of their books.  For links to the letters from the Society, click here.

High Court awards £15,000 damages for breach of child’s privacy resulting from unjustified publication of photographs of the child that accompanied articles concerning the child’s paternity.

The claimant, by her litigation friend, sought damages for breach of privacy against Associated Newspapers in respect of the publication of her photograph and articles, which contained speculation as to the identity of her father, allegedly an elected politician.  She also sought an injunction to restrain further publication.  The broader context was an alleged siege of the family home by journalists and photographers over a 12-day period in 2012.

The aspects of the claimant’s privacy rights which, it was claimed, were engaged included the child and her family’s right to control use of her image and their right to personal autonomy as regards the choice of when and how to inform her about her paternity and to engage with her father.

Mrs Justice Davies held that the child’s paternity was a matter which engaged her rights pursuant to Article 8 and in respect of which she had a reasonable expectation of privacy such as would allow her mother the time to decide when it would be appropriate to reveal the father’s identity to her.  However, the judge considered that the child’s expectation of privacy had been compromised by the mother speaking publicly on the issue.  Additionally, in relation to the defendant’s Article 10 right to freedom of expression, it was undisputed that there was a public interest in the professional and private life of the claimant’s supposed father, in particular his “recklessness”, relevant to his character and fitness for public office.  As such, the judge found the publication of the fact of the claimant’s birth in the circumstances alleged to be justified. 

The judge however considered that there was no justification for the publication or re-publication of a photograph of the claimant, which was taken in a public place, when she was less than one year old, without her mother’s awareness or consent.  Even allowing for the margin of journalistic appreciation the judge did not regard the publication of any of the photographs as being reasonable.  The articles provided sufficient information and, in the judge’s view, no more was required, particularly when the image was of a young child photographed and published without the parent’s consent. 

The judge assessed damages at £15,000 on the basis that on three occasions the defendant published un-pixelated pictures of the claimant in breach of the Editors’ Code of Practice.  She refused an injunction but accepted, for inclusion in an order, the defendant’s undertaking not to publish any further photographs. (AAA v Associated Newspapers Ltd [2012] EWHC 2103 (QB) (25 July 2012) – to read the judgment in full, click here.)

Gambling & Betting

House of Commons Culture, Media and Sport Committee publishes report on Gambling Act 2005 calling for regulation to be de-centralised.

The Report, The Gambling Act 2005: A bet worth taking?, finds that the Gambling Act  2005 has resulted in numerous inconsistencies and is not sufficiently evidence-based.  The Committee says more power should be devolved to local authorities, which have the local knowledge to assess their impact and central regulation is there to ensure high standards of protection for the vulnerable, particularly children.

The Committee says that casinos, the most highly-regulated sector, should be permitted to operate up to 20 category “B2” gaming machines (Fixed Odds Betting Terminals) instead of the current maximum of four.  The Committee also found that limiting the number of B2 machines in betting shops has encouraged them to cluster in some high streets in order to satisfy customer demand.  Local authorities should therefore have the power to allow betting shops to have more than the current maximum of four B2 machines per shop if they believe it will help to deal with the issue of clustering.

The Committee believes that the decision as to whether a casino would be of benefit to a local area should be made by local authorities rather than by way of “central diktat”.  It recommends that any local authority should be able to make the decision as to whether or not they want a casino.  As a step towards this, existing 1968 Act casino licences should be made portable, allowing operators to relocate to any local authority provided that they have the consent of that local authority.  The portability of these licences would be constrained by the existing “triple lock” contained in the Act, i.e. the need to obtain local authority approval, a premises licence and planning permission.

The failure of the Department for Culture, Media and Sport to work with the Treasury and set remote gambling taxation at a level at which online operators could remain within the UK and regulated by the Gambling Commission has led to almost every online gambling operator moving offshore whilst most are still able to advertise and operate into the UK.  The Committee welcomes the move to regulation of the online industry on a point of consumption basis, but says the Treasury still needs to work with industry stakeholders to establish the correct level for online gambling taxation, taking into account the need to encourage companies to accept UK regulation and taxation and to discourage the formation of a grey market. 

Given the absence of a significant UK-regulated online sector or any regional casinos, the Gambling Commission remains “an overly expensive, bureaucratic regulator”.  The Committee says the Commission has not gone far enough, in particular, in its efforts to reduce its operating costs.  Accordingly, the Committee recommends that an independent review of Gambling Commission expenditure should be carried out as soon as possible after a new system for remote licensing is in place, with a view to reducing costs and the regulatory and fees burden imposed on the industry.  Further, the Gambling Commission should introduce a new licence fee structure that reduces the current anomaly where small, independent bookmakers pay much higher fees per shop than large chains.

The hard evidence base for decisions and regulation needs to be improved, the Committee says: the Government must ensure that high-quality, independent research, comparable over time, is available to be able assess the scale of problem gambling and the impact, if any, of changes in regulation.  The Committee is also keen that there should be specific research on problem gambling and children, and a greater emphasis on discovering the most effective ways of educating children about probability and the risks of gambling.  For a link to the full Report, click here.

Computer Games

Government says businesses and local and central government are working together to ensure adoption of the Pan European Game Information (PEGI) system is effective in protecting children.

From 30 July 2012, under the Video Recordings Act, video games featuring content unsuitable for the under-12s will be required to be submitted for age classification under the PEGI system, which will be administered by the Video Standards Council operating as the Games Rating Authority.  PEGI classifications and labels will be mandatory for products unsuitable for children under 12 and it will be a requirement to ensure PEGI 12, 16 and 18-rated products are only sold to those of the appropriate age.  It will be an offence to sell products classified and labelled PEGI 12, 16 and 18 to anyone not meeting the age requirements.  PEGI 3 and 7 classifications will be for guidance only.

The Primary Authority scheme provides a single point of contact for assured advice on regulation to all businesses, wherever they trade in England and Wales.

The Government says that retailers are working with local and national regulators “to ensure everyone understands the new requirements for video games and that staff are fully trained”.

British Retail Consortium’s Director of Business and Regulation, Tom Ironside, said:  “As sellers of video games our members recognise their responsibility.  Many of our members have Primary Authority partnerships with local authorities and will be looking to them for immediate guidance on how to introduce new procedures and training effectively across their stores in the months ahead.  We welcome the commitment of the Better Regulation Delivery Office to work urgently with Primary Authorities to provide suitable guidance to businesses to cover the initial period of implementation”.  To read the Government’s press release in full, click here.

Advertising

ASA finds ad that specified the end date for a promotion that was then extended was in breach of CAP Code rules relating to administration and closing dates. 

The website www.treatme.net, visited on 25 October 2011, offered a number of driving experiences. The prices given were sale prices against the full prices and stated “Offer Ends Wed 26th Oct”.  A complainant challenged whether the offer end date was misleading, because it changed each day.

The ASA noted that offers had the potential to end on the end dates originally specified by Treatme.net.  However, it also noted that it appeared that Treatme.net’s suppliers of event days were frequently left with spare capacity and that, because of that, Treatme.net extended the offer end dates.  The ASA noted that there were reasons for extending the end dates of offers and that the terms of the offer (i.e. the price) did not change to the advantage of customers when the offer end date was extended.  Because the ad implied an undue sense of urgency, the ASA concluded that the offer end date was misleading and breached CAP Code rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.31 (Availability), 8.2 (Sales promotions), 8.14 (Administration) and 8.17.4 (Significant conditions for promotions – closing date).  To read ASA Adjudication on Treatme.net Ltd (25 July 2012) click here.

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