Latest legislative updates
Kurt Janson, Director of the Tourism Alliance, gives a monthly update on the latest regulatory changes affecting the hospitality industry.
Last updated 17th August 2017
Disclaimer: Whilst every effort has been made to ensure the accuracy of the information contained in the Pink Book of Legislation, we regret that we cannot be responsible for any errors. This guide is not intended to be a definitive statement of the law in England. If you require precise or detailed information on the legislation mentioned in this guide, or on the legal implications for you in particular, you should consult a professional legal adviser.
At a glance:
The end of credit and debit card charges
- New legislation from January 2018 means you cannot charge customers for paying by credit or debit card.
Guest books and data protection
- Does having a guest book in your property breach the Data Protection Act?
Changes to copyright licences for showing films
- You may now need an additional licence if you play TV channels that show films in public areas.
Using surveillance equipment on your premises
- If you have CCTV at your business, you need to comply with the Protection of Freedoms Act and the Data Protection Act.
The end of credit and debit card charges
Following a public consultation, the Government has recently announced that it intends to introduce legislation that will ban businesses from adding payment charges for paying by credit or debit card from 13th January 2018.
This new legislation is the result of the EU Payment Services Directive II, building on the 2015 EU Directive of the same name that limited the charges to the actual costs imposed by the card company.
Following the introduction of this ‘cost-recovery only’ legislation, consumer rights organisations argued that it is very difficult for customers to know whether they are being charged the right amount and, because the charge only comes at the end of the transaction process, it is hard to compare prices from different providers. This arguably left customers feeling that they have been trapped into making the purchase which they wouldn’t have undertaken if they knew the full cost up-front.
To resolve this issue, the EU has introduced the new Directive to prevent companies making any additional charge for using credit or debit cards. The UK Government has expanded on this requirement by also making it illegal to make any additional charge where payments are made using charge cards such as American Express and electronic forms of payment such as PayPal.
In essence this means that from 13th January 2018 the price you advertise a product for has to be the price that they customer pays at the end of the booking process. It is a good idea to start looking at your website now and start making any necessary changes to ensure that your booking process is compliant in time. However, you are allowed to increase the headline cost of your product to compensate for not being able to charge the card fees if you wish.
If you are an agency, there is a small loophole in that you are still able to charge a booking fee to the customer as you are an intermediary. However, if you decide to charge a booking fee, this must be applied uniformly to all customers no matter what method of payment is used. Please note that you need to be a true accommodation agency to charge a booking fee - simply telling a customer that you are your own booking agent in order to do so would contravene the legislation.
Guest books and the Data Protection Act
As a general rule, when it comes to interpreting legislation it is better to err on the side of caution rather than to risk causing harm or be deemed to have broken the law. While the precautionary approach can be a very good way to mitigate risks, there are instances where this can unnecessarily affect your business operation.
I recently had contact with a self-catering property owner whose agent had advised them to remove their guest book from the property, on the basis that having one would contravene the Data Protection Act (DPA). The rationale for this was that other guests, visitors, contractors or staff could access the book and gain the personal data of the people who had left comments.
It is correct that a guest book does indeed contain data, so the DPA does apply. However, that in itself is not a problem.
There is only the potential for a problem under the Act if the data is “personal data”. To be personal data, the data must enable a person to identify the individual. So, if you had just first names or even if guests wrote ‘Bob and Sue Smith’ with no address, then it would be difficult to say that it is personal data. It would only potentially be problematic if guests leave information that would make them identifiable, such as an address or email.
And even then, this would only be a problem if Bob and Sue were requested by the owner to provide this information. Now, it could be argued that having a column in the guest book called “Address” could constitute a request for information by which the guest could be identified and contacted. However, there are two issues.
The first is that “Address”, by itself, does not mean that the guest is being required to provide information by which they could be identified – i.e., the guest is perfectly able to leave that column blank or just write their country or town. There is no compulsion or requirement on them to give their full postal address.
It also has to be remembered that the purpose of the DPA is to ensure personal data is used only for the purpose for which it was supplied and to protect against unconsented access and use of personal information.
As such, because the guest is not required to write in the guest book, but does so voluntarily knowing that other guests will read it (this being the purpose of a guest book), then this could be deemed to be implied consent. Therefore it would be very hard for a guest to argue that, having put personal data in a guest book, they didn’t expect other visitors to read it.
Although this particular example demonstrates the issues with taking a very literal approach to the interpretation of legislation, business owners are advised to seek professional legal advice if they have any queries regarding how regulations affect their business.
Changes to copyright for showing films
Copyright licensing for playing music and films on TVs in hospitality businesses can be something of a minefield for small operators, with the need to get up to four different licences depending on the range of services that you provide to customers. There is the added complexity of getting the right version of each type of licence you require, which depends upon the size of your establishment and where in the establishment the copyright material is being played.
Up until now there has been exemption for showing films via free-to-air services– e.g., if you have a TV in a lounge or bar that plays films on channels such as BBC or ITV.
However, there has been a requirement on the UK Government to remove that exemption to bring UK copyright law into line with European copyright law. As such, you now need to gain a licence through the Motion Picture Licensing Company (MPLC) to provide this service to your customers. As with PPL and PRS for audio copyright licencing, MPLC is a collection society which licenses rights on behalf of various film companies and independent producers. The fee is set by the size of the public area in the establishment which, in this case, does not include private areas such as bedrooms. A table of the charges is available on the MPLC website.
It is important to note that a MPLC licence is not required for TVs in guests’ bedrooms, or if you have a TV in a public area of your establishment that is locked onto a channel that does not play films (e.g. the BBC News channel or Sky Sports). However, you cannot just say that “we only show the news channel” - the test is that the TV is not able to be switched to film-playing channels.