Do New UK Consumer Rules Clash with ISP Internet Censorship Proposals

The government has today proposed new amendments to the Consumer Protection Regulations (Unfair Trading) that, among other things, would “ban pre-ticked tick boxes for extras that the consumer may not want or need“. But that’s precisely what big broadband ISPs have been told to do with their network-level filtering solutions.

The new Active Choice+ (Parental Controls) system, which was officially announced last month (here), effectively requires the country’s largest broadband ISPs (BT, Sky Broadband, TalkTalk and Virgin Media) to enable automatic network-level filtering of adult (porn, gambling, social media etc.) websites.

However, rather than being enabled by default, ISPs must first ask customers whether or not you consent to being opted-in to their website blocking service, which controversially comes with the box for “Yes” being pre-ticked (the government specifically pushed for this). Similarly the next question would list a number of categories that you can choose to block and all those are also pre-ticked. TalkTalk’s related HomeSafe service shows how this works (below).

The government expects the new system to be introduced by the end of 2013. But the Open Rights Group (ORG) fears that this could cause the United Kingdom to “sleepwalk into censorship” by starting down a path towards default censorship and pre-ticking options that people might easily overlook (here).

But the government’s newly proposed Consumer Protection Rules and draft Consumer Rights Directive, which were both published today, would appear to have banned the practice of pre-ticked boxes.

Consumer Protection Regulations (Amendments):

* Give consumers 90 days to cancel a contract and receive a full refund if they have been misled or bullied into agreeing it. After the 90 days consumers can still receive a proportion of their money back. Currently, it is unclear what consumers are entitled to in this situation.

* Give consumers new rights to recover payments made to traders who mislead or bully them into paying money which was not owed. Currently, the trader can be prosecuted but the consumer finds it much more difficult to get their money back.

* Give consumers the right to claim compensation for any alarm or distress caused by these practices.

Consumer Rights Directive (Headline Measures):

* Increase the time limit for returning goods purchased online or by phone from seven days to 14 days after the goods have been received, should the consumer change their mind.

* Ban pre-ticked tick boxes for extras that the consumer may not want or need and that could result in unexpected payment.

* Set out key information consumers should be given by traders before agreeing to purchase, like additional costs or cancellation right.

Most consumers dislike pre-ticking, especially those that appear when you order a product and there’s one of those horrible pre-ticked disclaimers at the bottom with loopy wording. These typically try to nudge you into sharing your personal details with a third party or accepting some form of unwanted advertising (newsletters etc.).

However the government’s proposal appears to focus on banning pre-ticking that could attract an additional cost and it’s presently unclear whether or not this would also impact an ISPs Active Choice+ system for Parental Controls, which is after all being generally offered at no extra cost.

But this might become a more complicated question if you’re a new rather than existing broadband customer because the filtering service might then be a part of your overall ordering process and thus payment. The actual rule states as follows.

Additional payments under a contract

38.—(1) Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.

(2) There is no express consent (if there would otherwise be) for the purposes of this paragraph if consent is inferred from the consumer not changing a default option (such as a pre-ticked box on a website).

(3) This regulation does not apply if the trader’s main obligation is to provide services within regulation 6(1)(b) [ISPr ED: i.e. for services of a banking, credit, insurance, personal pension, investment or payment nature;], but in any other case it applies even if an additional payment is for such services.

Overall we think that ISPs will probably not have to worry too much about it but the government could do with narrowing their wording to avoid all doubt.

Separately the Bill also brings existing law into the modern internet age by including new rights on faulty digital downloads, which means you’ll now be entitled to a repair or replacement of the product you purchased. But if the company cannot fix the issue then you’ll also be able to seek a refund or reduction in price.