Information Obligations and Disinformation of Consumers: English Law Report

Beale (2015), Ch 38 (S Whittaker) is the most useful detailed discussion of consumer contracts.

Cartwright (2016), Ch 2.

Cartwright (2016), p. 70.

Cartwright (2016), pp. 131–138.

Cartwright (2016), Ch 7.

There are exceptions, e.g. “unconscionable bargains” entered into by “poor and ignorant” persons: Cartwright (2016), pp. 197–198; relationships of “trust and confidence” in which one party is in a position to exercise undue influence over the other: Cartwright (2016), pp. 194–195; agreements in restraint of trade: Beatson et al. (2016), pp. 428–435.

Cartwright (2016), Ch 2.

Cartwright (2016), pp. 28–34.

Cross et al. (1995), pp. 105–112; Beale (2015), [38–013], [38–017].

Beale (2015), [38–027]-[38–046].

E.g. Unfair Contract Terms Act 1977 s 12 as interpreted in R & B Customs Brokers Co Ltd v United Dominions Trust Ltd [1988] 1 WLR 321; Consumer Credit Act 1974 below, Sect. 5.1.

European Communities Act 1972 s 2(2) permits the Government to implement EU obligations by delegated legislation, such as Regulations. The discussion in this paper refers only to English law as it is currently enacted, and cannot take into account any changes that may be made in due course to provisions now based on EU Directives, when the UK leaves the EU in 2019.

E.g. Directives commonly refer to the consumer as a “natural person”; some implementations have followed this (see e.g. Unfair Terms in Consumer Contracts Regulations 1994 reg 2(1)), but more recently it has become normal to use the term “individual” (see e.g. Consumer Rights Act 2015 s 2(3)).

E.g. Directives commonly refer to the consumer acting for purposes which are “outside” his business, but since 2012 the UK implementing legislation has referred to those acting for purposes that are “wholly or mainly outside” the business—a conscious decision to widen the scope of protection beyond the interpretation of the European Court of Justice in Gruber v Bay Wa AG [2005] Case C-464/01, [2006] QB 204 (which held that an individual does not act as a consumer if the element of business use was non-negligible): see Law Commission, “Consumer Redress for Misleading and Aggressive Practices” (Law Com No 332, 2012) paras 6.11 to 6.13.

Unfair Contract Terms Act 1977 s 12(1), as originally enacted in 1977. Certain aspects of this definition were amended by Sale and Supply of Goods to Consumers Regulations 2002 (SI 2002/3045) to implement Directive 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, [1999] OJ L171/12.

Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, [1993] OJ L95/29, implemented first by Unfair Terms in Consumer Contracts Regulations 1994 (SI 1994/3159), and later re-implemented by Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083). The definition in the Directive (art 2(a): “‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession”) was not reproduced precisely in the 1994 Regulations (reg 2(1): “‘consumer’ means a natural person who, in making a contract to which these Regulations apply, is acting for purposes which are outside his business”), but the 1999 Regulations followed the Directive almost exactly (reg 3(1): ‘“consumer’ means any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession”).

Law Commission and Scottish Law Commission, “Unfair Terms in Contracts” (Law Com No 292, 2005).

See similarly, implementing EU Directives: Consumer Protection from Unfair Trading Regulations 2008 reg 2(1) as substituted in 2014 by SI 2014/870; Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 reg 4; and (in purely domestic legislation) similar but not identical wording in Consumer Insurance (Disclosure and Representations) Act 2012 s 1.

Consumer Rights Act 2015 s 2(3).

cf Mak (2016), p. 381, contrasting the images of the consumer in European regulatory private law with the (autonomous) consumer in national private laws, including (at 396) English law.

Financial Services (Distance Marketing) Regulations 2004 (SI 2004/2095) implementing Directive 2002/65/EC of 23 September 2002 concerning the distance marketing of consumer financial services [2002] OJ L271/16.

Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 below, Sect. 2.1.

Below, Sect. 2.5.

Consumer Protection from Unfair Trading Regulations 2008 reg 3(1): “A commercial practice is unfair if—(a) it contravenes the requirements of professional diligence; and (b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.”

Ibid reg 5(2), (3) (false or misleading information or marketing which “causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise”).

Ibid reg 6(1) (omission/hiding of material information or providing unclear, unintelligible ambiguous or untimely material information which “causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise”).

Ibid reg 7(1) (“(a) it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and (b) it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise”).

Ibid reg 8(1) (“(a) he knowingly or recklessly engages in a commercial practice which contravenes the requirements of professional diligence under regulation 3(3)(a); and (b) the practice materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product under regulation 3(3)(b)”).

Ibid reg 2(2).

Ibid reg 2(4)-(5).

Directive 2005/29/EC of 11 May 2005 (“Unfair Commercial Practices Directive”) [2005] OJ L149/22 Recital 18 and art 5.3.

See below, Sect. 3.

Consumer Rights Act 2015 s 64.

See Whittaker (2017), pp. 50–54; Beale (2015) [38–055]-[38–129].

Cartwright (2017), Ch 16.

Above, Sect. 1.1.

SI 2013/3134, implementing Directive 2011/83/EU of 25 October 2011 on consumer rights, [2011] OJ L304/64, and replacing (in relation to contracts entered into on or after 13 June 2014) Consumer Protection (Distance Selling) Regulations 2000 (SI 2000/2334) as amended [implementing Council Directive 97/7/EC on distance contracts] and Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations (SI 2008/1816) (“doorstep selling”), as amended [which replaced earlier Regulations and re-implemented Council Directive 85/577/EEC on contracts negotiated away from business premises]: see reg 2 of the 2013 Regulations.

The extended reference to include digital content was made (throughout the 2013 Regulations) by amendments made by SI 2014/870: below, Sect. 6. For similar special regulation of distance contracts for financial services, see below, Sect. 5.2.

SI 2013/3134 reg 5, which defines an “off-premises contract” as “a contract between a trader and a consumer which is any of these—(a) a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader; (b) a contract for which an offer was made by the consumer in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader; (c) a contract concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; (d) a contract concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer”. It defines a “distance contract” as “a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded”.

SI 2013/3134 reg 6(1): contracts for gambling or a lottery, for certain financial services, for the creation of immovable property rights, for rental of accommodation for residential purposes, for the construction and conversion of buildings, for the supply of household food and drink by a trader on frequent and regular rounds to the consumer’s home, residence or workplace, and contracts within the scope of other regulations on package travel, and timeshare and other long-term holiday contracts. In addition, the Regulations do not apply to contracts concluded by means of automatic vending machines or automated commercial premises, or for the use of a public telephone, or for single connection telephone, internet or fax use, or where goods are sold by way of execution or otherwise by authority of law: reg 6(2); nor contracts for the supply of prescription medical products (reg 7(2)), passenger transport services, except for those entered into by distance contracts concluded by electronic means (reg 7(3)), and off-premises contracts under which the payment to be made by the consumer is not more than £42 (reg 7(4)).

Below, Sect. 5.1.

Below, Sect. 5.2.

Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010 (SI 2010/2960), replacing the Timeshare Act 1992 and related regulations, and implementing Directive 2008/122/EC of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts [2009] OJ L33/10, requiring “key information” to be provided before and in a contract between a trader and a consumer for certain holiday contracts.

Package Travel and Linked Travel Arrangements Regulations 2018 (SI 2018/634), implementing Directive (EU) 2015/2302 of 25 November 2015 on package travel and linked travel arrangements [2015] OJ L326/1 (replacing with effect from 1 July 2018 Package Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992/3288), implementing Council Directive 90/314/EEC of 13 June 1990 on package travel, packaged holidays and package tours [1990] OJ L158/59) requiring the organiser or retailer of a package travel contract to provide specified information to the consumer before and in the contract, and before the start of the package.

SI 2013/3134 reg 9(2).

SI 2013/3134 regs 10 and 13 and Sch 2.

SI 2013/3134 reg 9 and Sch 1.

SI 2013/3134 reg 9(2); above, Sect. 2.1.

SI 2013/3134 reg 9(1).

See further below, Sect. 2.4.

SI 2013/3134 reg 15.

Cartwright (2016), pp. 126–127. The main exception is the contract for the sale or other disposition of an interest in land, for which a written contract signed by both parties is required: Law of Property (Miscellaneous Provisions) Act 1989 s 2; but such contracts are outside the scope of the 2013 Regulations (reg 6(1)(c), (d)).

SI 2013/3134 reg 8.

SI 2013/3134 regs 9(1) (on-premises contract, “if that information is not already apparent from the context”), 10(1)(a) (off-premises contract), 13(1) (distance contract, “and in a way appropriate to the means of distance communication used”).

SI 2013/3134 reg 10(1), (2).

SI 2013/3134 reg 12.

SI 2013/3134 reg 13(1), (2).

SI 2013/3134 reg 16.

Breach of statutory duty can be a ground of liability in tort, but only where it appears that Parliament expressly or impliedly so intended: Peel and Goudkamp (2014), Ch 8.

SI 2013/3134 reg 18.

Consumer Rights Act 2015 ss 11(4), 12(2) (goods contracts), 36(3), 37(2) (supply of digital content), 50(3) (services contracts). In addition, certain information in fact provided about the goods, digital content or service, even if not required by the Regulations, is incorporated into the contract.

Rights to reject, repair, replacement or price reduction for goods contracts (s 19), repair, replacement or price reduction for digital content contracts (s 42), and repeat performance or price reduction for services contracts (s 54).

E.g. contracts for the supply of prescription medicinal products; for passenger transport services, for off-premises contracts under which the payment to be made by the consumer is not more than £42; for goods or services contracts where the price is dependent on financial market fluctuations; for consumer-specified or personalised goods; for the supply of goods which are liable to deteriorate or expire rapidly; for contracts concluded at a public auction: SI 2013/3134 regs 27(2), 28.

SI 2013/3134 regs 29, 30.

SI 2013/3134 reg 31.

SI 2013/3134 reg 19.

See generally Madge (2013), paras 766 et seq. For general information see the website of the Food Standards Agency: http://​www.​food.​gov.​uk, and general Government guidance at http://​www.​gov.​uk/​guidance/​food-labelling-giving-food-information-to-consumers.

Treaty on the Functioning of the European Union [2012] OJ C326/1 art 288.

Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Foods Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/1, art 16.

Ibid art 17.2.

Food Safety and Hygiene (England) Regulations (2013 SI 2013/2996) regs 2(1), 5(6), Sched 2. Food authorities are designated by the Food Safety Act 1990 s 5.

Ibid reg 19(1).

Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers [2011] OJ L304/18, art 7.

Ibid art 9.

Ibid art 10 and Annex III.

Ibid art 13.

SI 2014/1855. The domestic implementing Regulations take up certain derogations permitted by the EU Regulation in relation to the detailed labelling requirements.

Food Information Regulations 2014 (SI 2014/1855).

Food Safety Act 1990 s 15.

Above Sect. 2.1.

SI 2008/1277; below, Sect. 3.2.

Above, Sect. 2.4.

Beale (2015), [38–145]-[38–191].

Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) as amended by (in particular) the Consumer Protection (Amendment) Regulations 2014 (SI 2014/870) to provide private rights of redress for consumers: see below, Sect. 3.2.

Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market [2005] OJ L149/22.

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 2(1).

Ibid.

“‘trader’ (a) means a person acting for purposes relating to that person’s business, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf, and (b) except in Part 4A [private rights of redress], includes a person acting in the name of or on behalf of a trader”: Consumer Protection from Unfair Trading Regulations 2008 as amended reg 2(1).

“‘consumer’ means an individual acting for purposes that are wholly or mainly outside that individual’s business”: Consumer Protection from Unfair Trading Regulations 2008 as amended reg 2(1).

See e.g. UK Regulators Network Final Report on Price comparison websites (27 September 2016, http://​www.​ukrn.​org.​uk/​wp-content/​uploads/​2016/​09/​201609027-UKRN-PCWs-Report.​pdf) paras 2.3–2.5 (2008 Regulations), 2.7–2.8 (competition law powers), 2.9–2.17 (voluntary accreditation schemes), 2.18–2.19 (direct regulation by Financial Conduct Authority in the context of financial services).

For the characteristics of the “average consumer”, see above, Sect. 1.3.

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 3(3).

The third specific form is “aggressive commercial practices” under reg 7, which is focused not on (mis)information but on harassment, coercion or undue influence.

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 5.

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 6.

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 2(5); above, Sect. 1.3. There appear however to be no cases which have applied this test to assess the misleading character of commercial practices: the only reported case referring to the “vulnerable consumer” in this context involved information provided by a trader selling security equipment which appears to have been regarded by the court as clearly misleading, although “especially” so where it was used in the sale to a 76-year-old widower who was vulnerable by reason of age and infirmity: R v X Ltd [2013] EWCA Crim 818, [2014] 1 WLR 591 [12].

Consumer Protection from Unfair Trading Regulations 2008 as amended regs 8 to 10; similarly, an aggressive commercial practice (art 11).

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 17 ((a) that the commission of the offence was due to (i) a mistake; (ii) reliance on information supplied to him by another person; (iii) the act or default of another person; (iv) an accident; or (v) another cause beyond his control; and (b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control).

A body established by the Enterprise and Regulatory Reform Act 2013 s 25 to seek to promote competition, both within and outside the United Kingdom, for the benefit of consumers: see http://​www.​gov.​uk/​government/​organisations/​competition-and-markets-authority.

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 19.

Directive 2005/29/EC art 3.2.

Consumer Protection from Unfair Trading Regulations 2008 reg 2 as originally worded (“An agreement shall not be void or unenforceable by reason only of a breach of these Regulations”).

A contract is generally voidable for misrepresentation, and damages may be available in tort for loss caused by relying on a fraudulent or negligent misrepresentation: Cartwright (2016), p. 178; Beatson et al. (2016), Ch 9.

Consumer Protection (Amendment) Regulations 2014, SI 2014/870. See generally Department for Business Innovation & Skills, “Misleading and Aggressive Commercial Practices – New Private Rights for Consumers” (August 2014, available at http://​www.​gov.​uk/​government/​publications/​misleading-and-aggressive-selling-new-rights-for-consumers).

Consumer Protection from Unfair Trading Regulations 2008 as amended regs 27A-27D.

A statutory claim for damages under s 2(1) Misrepresentation Act 1967 is not however available for a misrepresentation which constitutes a misleading action giving the consumer a right to redress under the 2008 Regulations.

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 27L.

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 27E.

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 27F(1).

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 27G.

25% if the prohibited practice is more than minor; 50% if it is significant; 75% if it is serious; 100% if it is very serious. The seriousness is assessed by reference to the behaviour of the person who engaged in the practice, the impact of the practice on the consumer and the time that has elapsed since the prohibited practice took place: Consumer Protection from Unfair Trading Regulations 2008 as amended reg 27I(1)–(5).

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 27I(6) (amended by SI 2015/1629, reg 9(2)), 27I(7).

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 27J(1)–(3).

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 27J(4).

Consumer Protection from Unfair Trading Regulations 2008 as amended reg 27J(5).

Beale (2015) [38–192]-[38–200], [38–334]-[38–394].

Above, Sect. 1.2.

Directive 93/13/EEC; above, Sect. 1.2.

E.g. certain mandatory terms in residential leases for less than 7 years: Landlord and Tenant Act 1985 ss 11, 12; non-excludable liability for damage caused by defect in product: Consumer Protection Act 1987 s 7; non-excludable protections for employees: Employment Rights Act 1996 s 203.

Above, Sect. 1.1.

Above, Sect. 1.1.

Cartwright (2016), pp. 219–224.

They recognised that a limitation of liability clause may be more likely to reflect an agreed allocation of risk, and therefore could be read with less hostility than exclusion clauses and indemnity clauses: Ailsa Craig Fishing Co v Malvern Fishing Co Ltd [1983] 1 WLR 964, 966.

Cartwright (2016), p. 221; Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433, 439 (Bingham LJ, drawing an analogy with the use of a general principle of good faith in civil law systems).

Cartwright (2016), pp. 221–224.

K/S Victoria Street v House of Fraser (Stores Management) Ltd [2011] EWCA Civ 904, [2012] Ch 497 [68]; Persimmon Homes Ltd v Ove Arup & Partners [2017] EWCA Civ 373 [52].

See e.g. Unfair Contract Terms Act 1977 (before amendment by the Consumer Rights Act 2015) ss 6(2) and (3), 7(2) and (3) (contracts for sale of goods or hire purchase, or other contracts for transfer of possession or ownership of goods: liability for breach of implied terms relating to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose, could not be excluded or restricted as against a person dealing as a consumer; could be excluded as against a person dealing otherwise than as a consumer, but only in so far as the exclusion or restriction satisfied the “requirement of reasonableness” in s 11).

Unfair Contract Terms Act 1977 (before amendment by the Consumer Rights Act 2015) s 3 (subjecting such clauses to the “requirement of reasonableness” in s 11).

Unfair Contract Terms Act 1977 s 11 and Sch 2, which was aimed in particular at non-consumer contracts for the sale or transfer of property in goods (ss 6 and 7), but was treated by the courts as applying more generally, including to those consumer contracts where the test of “reasonableness” was applied.

Directive 93/13/EEC.

See above, Sect. 1.2.

Consumer Rights Act 2015 ss 31 (goods), 47 (digital content), 57 (services).

See below Sect. 4.2.2.

Consumer Rights Act 2015 s 65. This has its origin in the Unfair Contract Terms Act 1977 s 2 (which, after the amendment by the Consumer Rights Act, still applies to non-consumer contracts and notices).

Above, Sect. 1.2.

Directive 93/13/EEC art 3.

Unfair Terms in Consumer Contracts Regulations 1994 (SI 1994/3159) reg 3.

Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) reg 5.

Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083).

Law Commission, “Unfair Terms in Consumer Contracts: Advice to the Department for Business, Innovation and Skills” (March 2013; available at http://​www.​lawcom.​gov.​uk/​wp-content/​uploads/​2015/​06/​unfair_​terms_​in_​consumer_​contracts_​advice.​pdf), xii.

Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) reg 6(2).

Directive 93/13/EEC art 4.2.

Directive 93/13/EEC art 4.2.

Whittaker (2017), p. 54.

Consumer Rights Act 2015 s 64.

Consumer Rights Act 2015 s 69(1), in effect enacting the contra proferentem rule of construction for this context: above, Sect. 4.1.

Unfair contract terms guidance from the Competition and Markets Authority can be found on the Government website: http://​www.​gov.​uk/​government/​organisations/​competition-and-markets-authority.

Above, Sect. 2.1.

The latest is Directive 2008/48/EC of 23 April 2008 on credit agreements for consumers, [2008] OJ L133/66, which repealed and replaced Directive 87/102/EEC.

However, “consumer” here is understood very broadly: as an individual debtor, without any limitation to the loan being made for non-business purposes: Consumer Credit Act 1974 ss 8 (“consumer credit agreement”) and 15 (“consumer hire agreement”).

Consumer Credit Act 1974, ss 60, 61.

Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553, as amended), regs 2 (regulated consumer credit agreements) 3 (regulated consumer hire agreements), 6(2) (form of lettering on documents); Consumer Credit (Disclosure of Information) Regulations 2010 (SI 2010/1013); Consumer Credit (Agreements) Regulations 2010 SI 2010/1014) reg 3.

Consumer Credit (Agreements) Regulations 1983 reg 6; Consumer Credit (Agreements) Regulations 2010 reg 4.

Consumer Credit Act 1974 s 61(1).

Consumer Credit Act 1974 s 65(1). S 127 provides that where there is an application to enforce the improperly executed agreement, the court must exercise a structured discretion.

SI 2013/3134; above Sect. 2.

SI 2004/2095 (as amended) implementing Directive 2002/65/EC of 23 September 2002 concerning the distance marketing of consumer financial services, [2002] OJ L271/16. There is no overlap between these Regulations, since the 2004 Regulations exclude from their operation provisions which would overlap with those which are already covered by other similar consumer protection provisions, such as the cancellation rights already provided for related agreements under the 2013 Regulations or for certain credit agreements under the Consumer Credit Act 1974: SI 2004/2095 reg 11 (as amended), or distance contracts which are also consumer credit contracts where the supplier has complied with Consumer Credit (Disclosure of Information) Regulations 2010: SI 2004/2095 regs 7(6), 8(1B), (1C).

The cancellation period is generally 14 days, as under the 2013 Regulations, except for distance contracts relating to life insurance or a personal pension, where the longer period of 30 days is substituted: SI 2004/2095 reg 10(5).

Or, in the case of life insurance or a personal pension contracts, 30 days: SI 2004/2095 reg 10(5).

SI 2004/2095 reg 10; cf the long-stop period of 12 months under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 reg 31.

See Government Response to Consultations on Consumer Rights (June 2013), Annex 2, available at http://​www.​gov.​uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​274787/​bis-13-916-draft-consumer-rights-bill-governemnt-response-to-consultations-on-consumer-rights.​pdf.

Above, Sect. 3.

Consumer Protection (Amendment) Regulations 2014, SI 2014/870 reg 2.

Above, Sect. 2.2.

Consumer Protection (Amendment) Regulations 2014 reg 9.

Consumer Rights Act 2015 Part 1, Chapter 3.

Consumer Rights Act 2015 ss 36(3), 37.

Consumer Rights Act 2015 s 42.

SI 2003/2426, reg 6 (as amended by SI 2011/1208).

Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, [2002] OJ L201/37, art 5 (as amended by Directive 2009/136/EC of 25 November 2009, [2009] OJ L337/11, art 2).

SI 2003/2426 reg 2.

See https://​ico.​org.​uk/​for-organisations/​guide-to-pecr/​cookies-and-similar-technologies/​.

SI 2003/2426 reg 30.

SI 2003/2426 regs 31, 32. Details of enforcement actions taken are set out on the Information Commissioner’s website at https://​ico.​org.​uk/​action-weve-taken/​enforcement/​.

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications) COM(2017) 10 final, 10 January 2017, Explanatory Memorandum, para 3.1; see https://​ec.​europa.​eu/​digital-single-market/​en/​news/​proposal-regulation-privacy-and-electronic-communications.

Regulation (EU) 2016/679/EU of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, [2016] OJ L119/1: arts 4(11) (“‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”) and 7 (“conditions for consent”).

Proposal for Regulation, COM(2017) 10 final art 29.2.

Law Commission, “Electronic Execution of Documents” (Consultation Paper No 237, 2018) para 1.1.

Ibid para 1.21.

Above, Sect. 5.1.

Law Commission, “Electronic Execution of Documents” (Consultation Paper No 237, 2018) paras 1.22, 6.30.

Above, Sect. 6.1.

See esp Howells (2005).

See e.g. the DTI Consultation: Extending Competitive Markets: Empowered Consumers, Successful Business (July 2004) 4.1 (“Empowered consumers have the choices, information and skills to make decisions that give them a good deal. They are able to shop around; they have good information on products and services and the traders who provide them, and they are able to compare different deals in order to reach a decision that best suits their circumstances.”) See also the Impact Assessments produced for the Department for Business, Innovation and Skills in relation to implementation of the EU Consumer Rights Directive as regards information requirements and extension of the right to withdraw for off-premises contracts and for distance contracts (August 2012), available on the Government’s consumer protection policy pages at http://​www.​gov.​uk/​government/​policies/​consumer-protection, and the Government’s Response to Consultations on Misleading and Aggressive Practices and the European Consumer Rights Directive (August 2013). That Response, as well as the Government’s Statement on Policy Reform and Responses to Pre-Legislative Scrutiny of the Bill which became the Consumer Rights Act 2015 (January 2014) list as the first of the “core consumer rights” the “right to clear and honest information before you buy”.

The recognition of information overload is more recent in the EU context: Commission, “A European Consumer Agenda—Boosting confidence and growth” COM(2012)225 final, para 3.3.