Proposal A: repeat or renewed
entries in directories
14. Proposal A would disapply the present requirements
in section 3 of the 1971 Act so as to permit renewed and repeat
directory entries to be agreed more easily in circumstances where
various specified conditions apply. These conditions are:
a. Restrictions on parties to the publishing
contract
Where the identity of the publisher of the directory
concerned has changed, the publisher and advertiser must either
have entered into a novation agreement[4]
updating the original contract, or the new publisher must have
supplied the advertiser with notice of the following:
i. His name
ii. The fact that the directory will be published
henceforward by him
iii. The fact that the previous and new contracts
are made between different parties.
b. Time intervals between the publication
of directories
If the directory is paper-based, the previous edition
in which the purchaser's entry appeared must be either the last
edition of the directory or the last edition but one and the interval
between publication of the two editions in which the entries appear
for this purpose must be no more than 13 months.
If the directory is published in electronic form,
the renewed contract must require first publication of the later
directory entry not more than i) 13 months after the publication
date of the previous entry of the directory or ii) the period
during which the earlier contract subsisted (whichever is shorter).
Electronic directories are continually updated as they operate
and therefore the concept of the 'edition' of the directory is
adapted to refer to the duration of the contract for displaying
the directory entry.
For both paper-based and electronic directories the
proposal therefore limits the use of the simpler renewal procedure
to no later than 13 months after the fulfilment of the earlier
contract.
c. Restriction on detrimental alterations
to the directory
The form, content or distribution of the new directory
must either be materially the same as the earlier version or be
an improvement on it, as a reasonable person would judge it.
d. Restriction on detrimental changes to the
entry
The form and content of the advertiser's entry in
the directory must be materially the same or an improvement on
the previous entry, as a reasonable person would be judge it.
The Department notes that this would prevent such undesirable
changes as, for instance, reducing the size of the typeface in
the entry.[5]
e. Procedure for seeking approval to the publication
of renewed directory entries where this was provided for in the
original contract
An agreement to purchase a directory entry may provide
that the advertiser will agree to the publication of a further
directory entry. In that situation the directory publisher may
only use the repeat procedure where i) he has first written to
the advertiser giving notice of the cost of the new entry, the
date on which the new contract will come into force and the fact
that the advertiser has 21 days within which to withdraw his consent
to the renewal ii) the advertiser does not withdraw within 21
days.
Proposal B: telephone authorisation for directory
entries
15. The second element of the proposal addresses
the issue of the authorisation of entries in directories over
the telephone. This is not presently permitted under the 1971
Act. The Department considers that the law should be changed
for the reason that in modern business it is quite normal for
contracts for many services to be agreed over the telephone and,
provided the customer is supplied with all the information necessary
to make an informed decision and feels happy to proceed to payment
via his debit or credit card, there is no reason why this option
should not be available to directory publishers and their clients,
as it is in respect of the purchase of other goods and services.
Providing that contracts of this kind can be concluded over the
telephone is seen by the Department as removing unnecessary regulatory
burdens from both directory publishers and advertisers.[6]
16. Under the proposal, the making of an agreement
to publication of a directory entry by telephone is conditional
on i) the advertiser or his representative being provided, during
one or more telephone conversations, with the information specified
in paragraph 11 above and ii) the entry being paid for by means
of a credit or debit card. The information which it is proposed
the publisher must provide to the purchaser in the course of telephone
discussions is the same as that which the 1971 Act presently requires
a publisher to provide in the context of electronic communications
for a directory entry.[7]
17. The Department indicates that there is some uncertainty
as to what provisions lay down the information requirements for
notes of agreement to publish directory entries. Section 3(3)
of the 1971 Act was amended by the Unsolicited Goods and Services
(Amendment) Act 1975 which provided for those details to be laid
down in Regulations. This was done in the Unsolicited Goods and
Services (Invoices etc) Regulations 1975 but there is doubt whether
these amending provisions ever came into force.[8]
The proposal would have the effect of clarifying the law and
establishing without ambiguity the requirements for the form and
content of notes of agreement.
Proposal C: simplification and
extension of documentary requirements
18. The Department at paragraphs 41 to 45 of the
explanatory statement describes how the proposed Order contains
a third supplementary aspect which continues in amended form some
of the provisions contained in the 1975 Regulations. The purpose
of these Regulations is to specify the form in which invoices
or related documents must be produced if they are not to be regarded
as asserting a right to payment under the 1971 Act. As has been
discussed at paragraph 10 above, it is an offence under the 1971
Act without reasonable cause (i.e. without good reason to believe
that the authorization requirements of the 1971 Act have been
met) to assert a right to payment for an entry in a directory.
In order that confusion be avoided and that directory publishers
will not through inadvertence commit these offences, the Regulations
require that all communications specifying the cost of potential
directory entries bear the statements "THIS IS NOT A DEMAND
FOR PAYMENT THERE IS NO OBLIGATION TO PAY. THIS IS NOT A BILL".
19. The Regulations presently exclude the possibility
of providing information about the cost of a contract for a directory
entry by means of electronic documents because the relevant specifications
are ones which can only be met by paper documents (such as the
specification of the permitted distances in millimetres between
the text of the document and the edge of the paper on which it
is printed). The substance of the third aspect of the proposal
is therefore to modernize and simplify requirements presently
in the 1975 Regulations so that electronic documents may be used
and can comply with the requirements to avoid being regarded as
asserting a right to payment.
20. The third element of the proposal is therefore
to repeal Section 3A of the 1971 Act and to provide in the Schedule
to the Order a simplified and modernised provision to govern the
form of documents sent to their customers by directory publishers.
4 Novation occurs where the parties to the original
contract agree with each other and a third person that the latter
will replace one of the original parties. Back
5
Explanatory statement, paragraph 31 Back
6
Explanatory statement, paragraph 36 Back
7
Explanatory statement, paragraph 58 Back
8
Explanatory statement, paragraph 39 Back
