Hi all,
As many of you know, the new Unfair Commercial Practices regulations prohibit certain sales practices.
In particular, it is prohibted to say something about your product, its attributes and/or its effects which are untrue and would lead someone to purchase them when they otherwise would not.
One effect of this prohibition is that the trader can be prosecuted. In real terms that means that they get a fine and a criminal record.
I am not sentimental when it comes to law and order - I vote Tory - but I wonder if there is an issue in using criminal law in this way, especially against individuals rather than companies.
My view is that Woos should be treated like double-glazing sales people. They should not be prosecuted according to the gravity of their Wooness but the manner of their sales practices.
Any thoughts?
Last edited by Jack of Kent; 5th September 2008 at 01:52 PM. Reason: minor typo
"living as a woo" should not be a criminal al offence at all, making a living as a woo may be.
Fraud should, illegal trading should and unfair business practises should be, practising medicine without proper trading should be. In short dishonest and negligence in commercial trading should be illegal.
If someone wants to offer a service to the public or make claims about a good they sell they should be able to offer evidence that the product or service which they charge money for will achieve the results which they claim or imply- and they should be sure that their product or service is (reasonably) safe. This is no different whether they are selling used cars or healing crystals- I have yet to her an argument (form either side) about why a distinction should be drawn for “woo”.
Having re-read your OP, I’m not quite sure what your point about using this against individuals rather than companies is about. Do you believe that sole-traders (or for the real woos soul-traders) should have more leeway when it comes to misleading the public?
I don’t see why the size of a commercial undertaking should determine their responsibility towards their customers- I can see a case for lower administrative standards for very small businesses and sole-traders (WRT record keeping etc.), but they will still have the same obligations towards their customers (and the public a large).
Surely the difficulty lies with belief - would I be breaking the law if I believed what I was saying was true? Some folk peddling woo know exactly what they're doing and that it's rubbish (I think of many astrologers, for example). Others however really believe in mediums, psychic healing and the infinite power of the lord.
In the first case little harm is done yet we could do them, in the latter much badness is done but the law will struggle. Or have I misread what Jack said?
I don't see how the belief of the operator of the commercial undertaking is relevant, either they are committing knowing fraud or they are operating in a reckless manner- I don’t see how operating your business in a reckless manner which means that you will likely to be able to provide the goods or services which you are charging people for is any more acceptable than outright fraud.Originally Posted by Tim the Mage
My point is slightly different. In human terms, a criminal conviction is more consequential than a conviction incurred by a company (which is a legal fiction in any case). It isn't a question of size - some sole traders are more successful commercially than some companies - merely a note that there is a human context when one starts bandying around the criminal law.
However, I agree with your substantive points.
I think the law will run into problems when it encouters largfe organised religion (and all the votes that they represent). As I see it the selling of plenary indulgances (which is a practice the catholic church still entertains even in this enlightened age) could lead a court to demand that the catholic church proves that such a practice absolves sin in the eyes of an absentee deity.
Wouldn't the difficulty with this be that the courts could find themselves in the position of trying to evaluate the truth of paranormal claims? Surely it's more practical to prosecute people, if appropriate, on the consequences of their actions, rather than the way they promote their 'services'?
For example - a person claims to be a faith healer, and advertises their ability to cure various ills. I can't see how a court could realistically assess that claim at face value.
If however, the faith healer has acted and caused harm, isn't that something tangible that a court can consider? I realise that this scenario will also require a certain amount of discussion about the supposed abilities, but at least there is something tangible for the prosecution to get its teeth into.
Should I be a lawyer, or am I talking nonsense? Probably the latter, I expect!
While we're dreaming, why not propose that churches and such be taxed like any other corporation, and subject to the same consumer fraud statutes?
Given the nature of supply and demand, criminalizing 'woos' would be no more effective than laws against prostitution.
As for simple fraud laws, there are so many ways of describing what wonderful benefits are associated with anything one wishes to sell, that a general anti-woo law would affect others reasonable claims made about the obvious but unproven benefits of this years 'in' toys.
So unless you create specific legal meanings for words/phrases like 'treat' 'beneficial effects' 'vitalizing' 'detoxifying' etc etc, I cannot see how this is possible.
The recent commercial practices law seems to make a pretty good fist of it. Instead of focussing solely on what the prmotional material literally says, it makes reference to what the average potential consumer would be lead to belive by it. If that understanding rests upon a false claim that would lead your customers to enter into a transaction with you that they wouldn't otherwise engage in if they knew that the claim was false then a court may ask the claimant to prove that the claim is true.
Thus "I have to read the contents of this piece of paper by law" wink wink. Is no defence. If you've targetted people who believe and are asking them for money they wouldn't otherwise give you if they knew you were a fake, even though you might claim that you explicitly stated that you were a fake, if you didn't do enought to convince your audience of that fact then hard cheese.
This is the key insight. And of course it applies to religion as well.
Thanks.
I'm inclined to agree re supply and demand, not to mention the relish with which some practictioners would embrace martyrdom.
I do think that medical doctors should be required to justify to the GMC the practice of any 'woo' (ooo I love that word!) as medicine. (Don't some hospitals offer woo??).
Agreed, the problem is much greater in general practice. While there are Osteopathic and Homeopathic Hospitals (Royal Patronage protects) and some pain specialists use acupuncture, most 'alternative' practice in hospitals is at least audited and to some extent part of studies. Outside the hospital setting many GPs also offer alternative 'treatments' in a completely unregulated and unaudited fashion.
It would be very reasonable for the Royal Colleges to demand that such practices are standardized and confined to use as part of clinical studies, unfortunately much of what is still done in 'medicine' has not been formally studied. The situation is improving but many would strongly resist abandoning eminence based approach altogether, so would be difficult to get the grandees completely on board just yet.
The last I saw, too drunk too get cites, it equated to "Many GPs had got 'alternative' treatments under their belts as part of the Continued Professional Development (CPD) for easy credits" the majority of the referrals were patient initiated.
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