UK Offence Report

Advertising: information society services

regulation 3A(2) of Tobacco Advertising and Promotion Act 2002 etc. (Amendment) Regulations 2006

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

2 Where subsection (1) applies—

a any proprietor of the information society service or any editor of the information contained in the information society service is guilty of an offence, and

b any person who (directly or indirectly) procured the inclusion of the tobacco advertisement in the information contained in the information society service is guilty of an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 3A(2)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a person (directly or indirectly) procured the inclusion of the tobacco advertisement in the information contained in the information society service.
  2. Doing what the provision prohibits, or failing to do what it requires under the Tobacco Advertising and Promotion Act 2002 etc. (Amendment) Regulations 2006.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
24 August 2006
In force from
28 September 2006
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations give effect to Directive 2003/33/EC of the European Parliament and Council of 26th May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (“the Directive on tobacco advertising and sponsorship”). They do so by amending the Tobacco Advertising and Promotion Act 2002 (“the Act”) to include provision about information society services (“ISS”) to the extent that the Act does not yet do so. In doing so, these Regulations also give effect to Directive 2000/31/EC of the European Parliament and Council of 8th June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (“the electronic commerce Directive”). Regulation 2 amends section 2 (prohibition of tobacco advertising) of the Act. Regulation 2(2) replaces subsection (4) to create new offences in relation to publishing, devising or distributing a tobacco advertisement in the EEA by ISS from an establishment in the United Kingdom. The old subsection (4) provided that it was not an offence under subsection (1) for persons not carrying on business in the United Kingdom to publish, etc. a tobacco advertisement on a website which is accessible in the United Kingdom. This exclusion has been moved to create a new section 4(1)(d) of the Act, which is now limited to persons carrying on business outside the EEA. Regulation 3 inserts a new section 3A (advertising: information society services) to provide for new offences in relation to any proprietor or editor of an ISS which contains a tobacco advertisement and any person who directly or indirectly commissioned the offending advertisement, e.g. advertising agencies. Regulation 4 amends section 4 (advertising: exclusions) of the Act. It limits the exclusion in section 4(1)(c) of the Act to publications printed outside the EEA which do not have the EEA (or any part of it) as its principal market. It also inserts new subsections (1A) and (1B) to exclude from the offences under sections 2, 3 and 3A information on tobacco products provided by ISS only in reply to a particular request by a person for such information (provided certain conditions are met), or to persons who have initiated a purchase of a tobacco product from an ISS. Regulation 4 also inserts a new section 4(5) to give effect to a new Schedule which implements Articles 12, 13 and 14 of the electronic commerce Directive. This new Schedule, inserted by regulation 9, excludes from sections 2, 3A and 9 (prohibition of free distributions) ISS providers who act as a mere conduit, or who are caching or hosting information containing a tobacco advertisement, if certain conditions are met. Regulation 5 amends section 5 (advertising: defences) of the Act to extend the defences contained in this section to the new offences created by the new sections 2(4) and 3A. Regulation 6 amends section 8(2) (displays) of the Act, by limiting the persons liable to an offence under subsection (1) to those carrying on business in the EEA. Regulation 7 amends section 16 (penalties) of the Act to provide for maximum penalties for the new offences created by the new sections 2(4) and 3A. Regulation 8 amends section 21 (interpretation) of the Act by inserting a number of new definitions and by making provision for determining when a person is established in a particular place. Regulation 10 amends the Electronic Commerce (EC Directive) (Extension) Regulations 2003, by omitting paragraph 2 to the Schedule (which extended the provisions of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) to the Act). Such provision is no longer necessary as a result of the amendments to the Act made by these Regulations. A Regulatory Impact Assessment and a Transposition Note have been prepared for these Regulations and a copy of each has been placed in the library of each House of Parliament. Copies of the Regulatory Impact Assessment and the Transposition Note can be obtained from the Cancer & CVD Protection – Tobacco Policy Team, Department of Health, Room 712, Wellington House, 133-155 Waterloo Road, London SE1 8UG.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.96.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.96 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source