Out-Law News 2 min. read

Regulators warned over covert surveillance of businesses thought to be selling age-restricted products to children

Enforcement bodies have been warned about disproportionately invading traders' privacy when carrying out checks over the way age-restricted products are sold.

The Government has announced a new Code of Practice for Age Related Products in which it has stressed the need for enforcement agencies to adhere to legislation governing covert recording when carrying out test purchases of age-restricted products, such as tobacco, alcohol or video games.

"Where an enforcing authority is considering conducting a test purchase exercise, consisting of one or more test purchase attempts, it should consider the statutory requirements for authorisation under the Regulation of Investigatory Powers Act 2000, as amended," the Code states. "It is unlikely that authorisations under RIPA for covert methods will be considered proportionate without demonstration that overt methods have been attempted and failed."

Regulators cannot conduct directed surveillance activities or use covert human intelligence sources without first gaining authorisation to do so, according to guidance accompanying the Code. The bodies would have to justify not complying with guidance issued by the Office of Surveillance Commissioners (OSC) if they elected to "deviate" from the Office's guidance.

The OSC guidance sets out procedures public authorities should follow when utilising a "young person" to conduct test purchases. It identifies privacy controls and procedures the authorities need to follow to ensure that covert recordings can be justified.

The Code, which the Government has said will help end "inconsistent regulation" by bodies across England and Wales, also sets out rules on how regulators should treat young people they use as test purchasers and on what those test purchasers can wear to enter into particular shops, whilst it also makes clear that businesses should be notified in writing of the results of test purchase exercises.

The Code stress collaborate working between local authorities, national regulators and enforcement bodies and the police. It also requires that enforcement bodies ensure that their compliance and enforcement regimes are "transparent" and they are selective about when they use the full force of their powers.

"An enforcing authority will usually have a wide range of options available to it, including: raising awareness of the legislation and compliance issues with business; providing advice and guidance to business; working through primary authorities; conducting checks on compliance; and dealing appropriately with compliance breaches, including taking swift and firm action where necessary," according to guidance accompanying the Code.

"In choosing the most appropriate option, the enforcing authority will need to think about the outcomes that it is trying to achieve, the public interest, and where its intervention, or an intervention by others, is likely to have the greatest impact," it said.


Businesses should also be given access to guidance and advice on the particular legislation regulators are responsible for enforcing, it said. The Code requires the information made available to businesses to provide "a clear and consistent message that valid proof of age must always be required where young people seek to access age restricted products and services through face to face transactions".

Regulators' response to complaints must also be "proportionate", according to the Code.

"The credibility, quality and quantity of information about potential sources of age restricted products will need to be considered," according to the guidance.

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