Legislation – Digital Markets, Competition and Consumers Act 2024

There are currently no known outstanding effects for the Digital Markets, Competition and Consumers Act 2024, Cross Heading: Offences relating to unfair commercial practices.

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Part 4Consumer rights and disputes

Chapter 1Protection from unfair trading

Offences relating to unfair commercial practices

237Offences

(1)

A trader commits an offence if, in breach of section 225(1), the trader engages in an unfair commercial practice which involves a misleading action within section 226(1)(a), (b) or (c) (see section 225(4)(a)(i)).

(2)

A trader commits an offence if, in breach of section 225(1), the trader engages in an unfair commercial practice which involves a misleading omission (see section 225(4)(a)(ii)).

(3)

A trader commits an offence if, in breach of section 225(1), the trader engages in an unfair commercial practice which involves an aggressive practice (see section 225(4)(a)(iii)).

(4)

A trader commits an offence if, in breach of section 225(1)—

(a)

the trader engages in an unfair commercial practice which involves a contravention of the requirements of professional diligence (see section 225(4)(a)(iv)), and

(b)

the trader knows, or is reckless as to whether, the commercial practice involves a contravention of the requirements of professional diligence.

(5)

For the purposes of subsection (4) a trader who fails to have regard to whether a commercial practice involves a contravention of the requirements of professional diligence is to be treated as being reckless as to whether it does (regardless of whether the trader has reason to believe that it might).

(6)

A trader commits an offence if, in breach of section 225(1), the trader engages in an unfair commercial practice by omitting material information from an invitation to purchase (see section 225(4)(b)).

(7)

A trader commits an offence if, in breach of section 225(1), the trader engages in a commercial practice which is unfair by virtue of it being of a description listed in Schedule 20 (see section 225(4)(c)) other than an excluded description.

(8)

The following are excluded descriptions for the purposes of subsection (7)—

(a)

the description of practice mentioned in paragraph 12 of Schedule 20;

(b)

the descriptions of practices mentioned in paragraph 13 of that Schedule;

(c)

the description of practice mentioned in paragraph 30 of that Schedule.

238Defence of due diligence and innocent publication

(1)

It is a defence for a person (“the defendant”) charged with an offence under subsection (1), (2), (3), (6) or (7) of section 237 to prove—

(a)

that the commission of the offence was due to—

(i)

the act or omission of another person,

(ii)

reliance on information given by another person,

(iii)

a mistake or accident, or

(iv)

another cause beyond the defendant’s control, and

(b)

that the defendant took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by the defendant or any other person under the defendant’s control.

(2)

Subsection (3) applies in a case where a person (“the defendant”) has been charged with an offence under subsection (1), (2), (3), (6) or (7) of section 237 alleged to have been committed by the publication of an advertisement.

(3)

It is a defence for the defendant to prove that—

(a)

the defendant’s business is to publish or arrange for the publication of advertisements,

(b)

the defendant received the advertisement for publication in the ordinary course of business, and

(c)

the defendant did not know and had no reason to suspect that its publication would amount to the offence with which the defendant is charged.

(4)

A defendant is not entitled to rely on the defence provided by subsection (1) by reason of the matters referred to in paragraph (a)(i) or (a)(ii) of that subsection without the permission of the court unless—

(a)

the defendant has served on the prosecutor a notice in writing giving such information as was then in the defendant’s possession identifying, or assisting in the identification of, the other person, and

(b)

the notice is served on the prosecutor at least seven clear days before the hearing of the proceedings or, in Scotland, at least seven clear days before the trial diet.

(5)

In subsection (3), “advertisement”—

(a)

means anything published (in any form) for the purpose of promoting a product to the public or a section of the public, and

(b)

includes a catalogue, a circular and a price list.

239Offences: criminal liability of others

(1)

Subsections (2) and (3) apply where a trader—

(a)

commits an offence under subsection (1), (2), (3), (6) or (7) of section 237, or

(b)

would have committed an offence under that subsection but for a defence under section 238,

and the commission of the offence, or of what would have been the offence, is due to the act or omission of another person “P”.

(2)

P commits the offence (whether or not P is a trader and whether or not P’s act or omission is a commercial practice).

(3)

P may be charged with and convicted of the offence by virtue of subsection (2) whether or not proceedings are taken against the trader.

(4)

In other provisions of this Chapter (including the rest of this section), references to an offence under subsection (1), (2), (3), (6) or (7) of section 237 include references to an offence under that subsection by virtue of subsection (2).

(5)

If an offence under section 237 committed by a body corporate is proved—

(a)

to have been committed with the consent or connivance of an officer of the body, or

(b)

to be attributable to any neglect on the part of an officer,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(6)

If the affairs of a body corporate are managed by its members, subsection (5) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were an officer of the body corporate.

(7)

If an offence under section 237 committed by a Scottish partnership is proved—

(a)

to have been committed with the consent or connivance of a partner, or

(b)

to be attributable to any neglect on the part of a partner,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(8)

In other provisions of this Chapter, references to an offence under section 237 include references to an offence under that section by virtue of subsection (5) or (7).

(9)

In subsection (5) a reference to an officer of a body corporate includes a reference to—

(a)

a director, manager, secretary or other similar officer, or

(b)

a person purporting to act as a director, manager, secretary or other similar officer.

(10)

In subsection (7), a reference to a partner includes a person purporting to act as a partner.

240Penalty for offences

A person guilty of an offence under section 237 is liable—

(a)

on summary conviction in England and Wales, to a fine;

(b)

on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;

(c)

on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine (or both).

241Time limit for prosecution

(1)

No proceedings for an offence under section 237 may be commenced after the earlier of—

(a)

the end of the period of 3 years beginning with the date of the commission of the offence, or

(b)

the end of the period of 1 year beginning with the date of discovery of the offence by the prosecutor.

(2)

For the purposes of subsection (1)(b)—

(a)

a certificate signed by or on behalf of the prosecutor and stating the date on which the prosecutor discovered the offence is conclusive evidence of that fact, and

(b)

a certificate stating that matter and purporting to be so signed is to be treated as so signed unless the contrary is proved.