3 Background
8. The Department has described the background to
its proposals in paragraphs 4 to 19 of the explanatory statement
laid with the draft Order. As the Department records, the Unsolicited
Goods and Services Act 1971 (the 1971 Act) was passed, amongst
other reasons, to control the circumstances in which businesses
could be charged for the publication of entries about them in
directories. It had been the case prior to the 1971 Act that
unwary businesses could be tricked by various sharp practices
into paying for directory entries for which they had not asked
and which they did not want. Unscrupulous directory publishers
would accomplish this by sending companies a document in the form
of a statement of address, telephone details etc. with a request
that the information be checked and confirmed. A statement to
the effect that the company concerned consented to the publication
of this information in a directory and to pay the associated charges
was included amongst various 'small print' located elsewhere on
the document. By responding to confirm matters such as its address,
the publisher could therefore claim that the business concerned
had consented to publication. Directories produced by means of
misleading transactions of this kind were generally of no informational
or commercial value and were no more than devices by which charges
could be imposed on unwary businesses.
9. Another dishonest practice noted by the Department
was for individuals, who may not have been publishers at all but
confidence tricksters, simply to issue invoices for entries in
directories which were entirely fictitious. Some of the companies
who received such invoices would go on to pay them, particularly
where the 'publisher' made repeated demands for settlement and
perhaps made suggestions of legal action. These were, of course,
never techniques associated with the bona fide directory publishing
industry.
10. The 1971 Act outlawed these dishonest practices
by specifying detailed requirements which must be met before an
advertiser can be liable for payment for a directory entry. The
Act also makes it an offence to claim payment for a directory
entry without knowing or having reasonable cause to believe that
the entry has been authorized in one of the ways prescribed by
the Act.
11. The three ways permitted by the 1971 Act by which
a specified business may authorize a directory publisher to submit
an invoice for a directory entry about that business are as follows:
1. The issuing of a signed order by the purchaser
or someone acting on his behalf on the advertiser's stationery.
2. The signing of a note of agreement. Such
a note must be supplied by the publisher to the purchaser, with
a further copy for him to retain for his records. The note itself
must specify:
i. The amount of the charge for the directory
entry directly above the place for signature;
ii. The name of the directory;
iii. the date of publication of the directory
or of the issue of the directory in which the entry is to be included;
iv. the name and address of the publisher;
v. the price at which the directory is to be
put on sale;
vi. the minimum number of copies of the directory
to be made available for sale or, where the directory is supplied
free of charge, the minimum number of copies to be distributed
free; and
vii. reasonable particulars of the entry itself.[2]
3. Since 2001, the purchaser has also been permitted
to transmit an electronic communication which specifies that he
agrees to be charged for the directory entry. Before agreement
can be given in this electronic form, the purchaser must first
have received from the directory publisher the details specified
in points i-vii above, with details of how any electronic directory
which may be published can be accessed. This procedure has been
introduced by amendment to the 1971 Act through the Unsolicited
Goods and Services Act 1971 (Electronic Communications) Order
2001, made under Section 8 of the Electronic Communications Act
2000.
12. The Department record that directory publishers
have lobbied them for changes to the 1971 Act.[3]
They consider that it has had the effect of reducing their competitiveness
with respect to other advertising media and with directory publishers
based in other EU countries, who do not have to comply with the
requirements of the 1971 Act and can therefore offer less onerous
and expensive means of advertising and directory publication to
UK businesses. The July 1999 consumer white paper Modern Markets:
Confident Consumers contained a commitment from the Government
to simplify the requirements of the 1971 Act with respect to the
making of charges for directories. A consultation paper was published
in December 1999: Simplification of the Unsolicited Goods and
Services Act 1971 (as amended). Responses to this consultation
paper have informed the preparation of the current proposals and
also led to the making of the Order made under the Electronic
Communication Act 2000 mentioned in paragraph 11 above.
2 Under the Unsolicited Goods and Services Act 1975,
these requirements are replaced by a requirement to comply with
requirements made in Regulations made under section 3A of the
Act (also added by the 1975 Act).As the Department has indicated,
it is not clear that these amendments were ever brought into force.
See explanatory statement paragraphs 38-39. Back
3
Explanatory statement, paragraphs 21-27. Back
| 
