For the first time in English legal history, most offences deemed as fraud have been brought together under one statute. But could this bring with it an unexpected new weapon against marketing abuse of personal data? Stephen Groom cops a plea.
Topic: The Fraud Act 2006 came into force
Who: HM Government
Where: Whitehall
When: January 2007
What happened:
The statute was driven in part by concerns over "phishing" (the practice of deceiving punters online by emailing them under stolen brands, normally those of banks, telling them they need to re confirm various financial details on a website to which a link is given, then using punters' details for their own enrichment).
There were fears that simply owning the software that facilitated this was not contrary to law, then a bright spark in Whitehall got the idea that we should use this as an opportunity to do a spot of consolidation. The grand plan was to roll into a single law all the UK's disparate laws rendering various activities fraudulent.
And thus was born the Fraud Act 2006. At its core were nice clear provisions such as the following, making any person guilty of fraud if:
"he dishonestly fails to disclose to another person information which he is under a legal duty to disclose and [thereby] intends :to make a gain for himself or another or to cause loss to another or to expose another to a risk of loss."
So far so straightforward, but then the pundits got to grips with this deceptively simple drafting and suddenly realised that it could potentially open up whole new levels of regulation.
Wider ambit than planned?
Surely there were countless areas of commercial activity including marketing and advertising driven activity where there were existing legal duties to disclose types of information but only modest penalties awaited offenders.
£1000 for example for failing to include a company's full name, registered number, registered office address and place of registration in an email or website. Or £5000 maximum for failing to disclose in a privacy policy all future intended uses of personal data being captured. Or a modest fine for failing to include all a product's main characteristics in a distance selling scenario.
Now all that has changed. If the necessary intention can be shown jail sentences of up to ten years and fines of up to £10,000 lie in wait for "consenting and conniving" directors, managers, secretaries or similar officers of limited companies who get these and many other disclosure rules wrong.
Why this matters:
One suspects the draftsmen did not necessarily intend this largely tidying up process to create these significant new opportunities for those looking to enforce marketing and advertising related laws. As ever however, where competitors of businesses that break these rules are unable to take the offending business to court to enforce these laws and reliance has to be placed on trading standards, the Information Commissioner's Office and other already hard pressed enforcement bodies, one suspects there will be no short or medium change to the enforcement landscape flowing from this interesting legislative development.
