Consumer Protection from Unfair Trading Regulations 2008 - Olswang

• An officer or a manager of the company who consents to (or acts negligently in relation to) the offence
can be found personally liable and fined or sentenced to up to two years in prison (or both).
DEFENCES
It is a defence to the criminal charge that the offence was caused by factors such as a mistake or accident,
reliance on information provided by another person, the act or default of another person or other causes
beyond the trader's control, provided that the trader can show it took all reasonable precautions and
exercised "due diligence".
In terms of what constitutes due diligence, it may not be sufficient merely to put procedures in place to
prevent the commission of an offence – these procedures would have to be applied and enforced.
However, it will not be possible to understand how the courts will interpret this provision until some case
law exists in this area.
A "mere conduit" defence is also available for publishers of advertisements where the publisher can prove
that they received the advertisement in the course of business and they did not know that the publication of
the advertisement would be an offence.
Arrangements with providers of advertising, publishing services or hosting services, will therefore need to
be framed to ensure that obligations to review content, and associated risks, are properly allocated.
WHAT NOW?
If you think that the regulations are likely to apply to your business you should:
• review your business's practices and guidelines to ensure that they do not fall within any of the
prohibitions set out in either of the regulations;
• consider whether your clearance processes need to be updated to identify content and activities
contrary to either of the regulations; and
• consider risk allocation with partners for new promotional initiatives.
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