The document discusses online regulation and effective regulatory engagement with the UK Office of Fair Trading (OFT). It provides an overview of the OFT's remit, priorities, and enforcement powers. Typical infringements involve issues like unfair terms in consumer contracts, misleading advertising practices, and failures to deliver goods or provide refunds. The document advises engaging early and strategically with OFT investigations to ensure the process is being followed properly. Proactive engagement can help determine if and how the OFT has a duty to act regarding certain issues. Questions from attendees are invited at the end.

1. Online Regulation and Effective Regulatory
Engagement
David Naylor
Robert Blamires
11 November 2010

2. Overview
1. OFT remit
2. OFT priorities
3. OFT enforcement powers
4. Typical infringements
5. Process
6. Effective engagement in investigations
7. Effective engagement as a proactive strategy
8. Conclusion/questions

3. 1. OFT remit
“Making markets work well for consumers”
1. Encouraging compliance
through self-regulation
2. Enforcement action
3. Studying markets and
recommending action
4. Empowering consumers

4. 2. OFT prioritisation principles
1. Impact
2. Strategic significance
3. Risks
4. Resources

5. 2. OFT enforcement priorities
Practical observations:
1. High profile traders
• Tesco
• Dell
• Sportsdirect.com
• Bulldog Broadband

6. 2. OFT enforcement priorities
2. Bad guys
• Failure to deliver goods
• Taking multiple payments
3. Test cases/precedent
• Intermediary liability
• File sharing

7. 3. OFT enforcement powers
• Enterprise Act 2002
• Community infringements
• domestic infringements
• Enforcement directly under other statutes
• express power to enforce
• assumed power to enforce where in furtherance of OFT’s
functions

8. 4. Typical infringements
• Distance Selling Regulations:
• onerous/prescriptive procedures/formalities for returning goods
• charging for return of faulty goods
• failing to provide a refund within 30 days
• Unfair Terms in Consumer Contracts Regulations
• unfairly excluding/limiting liability
• indicative list of terms which may be regarded as unfair

9. 4. Typical infringements
• Consumer Protection from Unfair Trading Regulations
• misleading actions/omissions
• aggressive practices
• banned practices
• bait advertising
• bait and switch
• advertorials
• presenting legal rights as part of the offer
• ‘closing down’ promotions
• pyramid schemes

10. 5. Process
• Identification
• Preliminary enquiries/investigation
• Information gathering
• information requests
• informal requests
• raids
• Consultation
• Undertakings
• Enforcement orders
• Publication

11. 6. Effective engagement in investigations
• Early legal involvement
• Is process being followed?
• Valid exercise of powers?
• Technical breaches vs non-compliance 'strategies'

12. 7. Effective engagement as a proactive strategy
• OFT notification
• OFT duty to act?
• Enterprise Act
• Consumer Protection from Unfair Trading Regulations and Business
Protection from Misleading Marketing Regulations
• “duty to enforce”
• Unfair Terms in Consumer Contracts Regulations and Distance Selling
Regulations
• “duty to consider any complaint”
• Strategic considerations

13. 8. Questions?
David Naylor
+44 (0) 20 7861 4150
david.naylor@ffw.com
Robert Blamires
+44 (0) 20 7861 4136
robert.blamires@ffw.com