LATA Package Tour Regulations and General Data Protection Regulation (GDPR) Seminar 16 th March 2018
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LATA Package Tour Regulations and General DataProtection Regulation (GDPR) Seminar
16th March 2018
Important Disclaimer The following slides are provided free and are only a very basic guide to the law. They are designed to be read in conjunction with the associated presentation. They are not intended to reflect the law in full and therefore should not under any circumstances be relied upon when considering particular situations. To the extent permitted by law neither LATA, The Chartered Trading Standards Institute, Mayo Wynne Baxter LLP nor any of their partners or staff shall be liable for any loss suffered as a result of anyone relying on the contents of these notes and readers are strongly advised that they should take specific legal advice as and when particular situations arise.
2018 LATA PRESENTATION THE NEW PACKAGE TRAVEL DIRECTIVE
• BRUCE TRELOAR
Trading Standards Ofcers and the current Holiday and Travel Law
• The Package Travel Regulatons 1992
• The Consumer Protecton from Unfair Trading Regulatons 2008, and an example of;
“a quiet secluded resort” misleading descripton.
Background to current laws and example
• Package Travel Regulatins 1992
• Protects all customers who buy tours and holidays sold or ofered for sale in the UK.
• Covers marketng material, service delivery and insolvency protecton
• Applies to combinatons of transport, accommodaton and other tourist services like car hire
• Businesses selling packages must provide security for customers money in case they collapse, which includes bringing customers back
• If the holiday includes air transport the business must hold an ATOL
• UK approves only three methods of protecton, Bonding, Insurance or Trust Funds
• The law does not apply to packages sold in other countries by Operators based in the UK.
• If the business is based in another EU Member State, targets UK consumers BUT complies with the rules in that other Member State, no additonal security is needed in the UK.
• For businesses based outside the EU and UK e.g. Peru, targetng UK consumers on the Internet should protect their holidays sold
Si, what di EU cinsumers liik fir when buying a hiliday currently?
1) They pay separately for a fight, then buy a hotel online
2) They buy a weekend stay in a hotel in Peru, buying online
3) They pay online for a fight and hotel at an inclusive price
4) They buy a fight online
• Q - Is there any insolvency protecton under current rules?
• Q - Is this a package and is there any protecton?
• Q -Will this be regulated?
• Q -Is your money protected under
current rules?
Online Dubai Hitel misdescribed!
• Misleading ‘material informaton’ relatng to the holiday; “informaton which is unclear, unintelligible or ambiguous”
• Investgaton for consumers who had booked with this pictorial representaton and found…
• Website investgaton, deliberate atempt to mislead
The new EU Package Travel Directve OVERVIEW
• The core piece of regulaton in travel is fnally being overhauled afer 25 years! In 1992 budget airlines and the internet were not as popular!
• Airlines will need to protect the holidays they sell (facilitate) through (targeted) website click-throughs.
• 3 new responsibilites for Travel Agents
• Linked Travel Arrangements (paying separately for holiday elements) If online, all within 24 hours
• Business Travel exempt
• Standard Informaton Form for consumers (before payment made)
• For most LATA members there will not be massive change, but will need to be careful of the new Linked Travel Arrangements
So what will remain in the new PTD?
• For fight-inclusive packages and LTA’s, there will stll be ATOL protecton
• For non-fight packages and LTA’s, the optons of Bonding, Insurance and Trust Accounts remain.
• Package organisers will stll be responsible for all the elements of the package, fnancial protecton and repatriaton
• The three major changes causing concern? Linked Travel Arrangements, Place of Establishment and Website “click-throughs”!
• The defniton of package has changed but it remains a requirement that the service must cover more than 24 hours or include overnight accommodaton.
PTR’s… a package means the pre-arranged combinaton of at least two of the following components when sold or ofered for sale at an inclusive price and when the service covers a period of more than 24 hrs or includes overnight accommodaton;-
a) transportb) accommodatonc) other tourist services not
ancillary to transport or accommodaton and accountng for a signifcant proporton of the package
PTD… a package means a combinaton of at least two diferent travel services for the purpose of the same trip or holiday ……
“a travel service means:
a) carriage of passengers b) accommodaton (other than for residental purposes) c) car rental d) any other tourist service not ancillary to a) b) or c) but forming a signifcant proporton or essental feature of the package
(Over 24 hours or including overnight accommodaton)
Investgatng misleading descriptons by bedbanks!• Misleading ‘main
characteristcs’ of the holiday
• e.g. “the hotel has a wonderful sea view”
So, under the New Package Travel Directve
• The Defniton of a package is being widened • Separate services sold at an inclusive price• Separate services sold at a tital price• Anything advertsed as a “package”• Website click-through where traveller’s name, email and
payment details are transferred
• And the New Linked Travel Arrangement (LTA)• Choose and pay for each service separately• Click-through where traveller’s details are nit transferred
And what about these Linked Travel Arrangements?These are NOT packages and do not provide the same protecton!
So what are they?
1. The consumer can, through a facilitator (e.g. Travel Agent), combine separate travel services paying the trader SEPARATELY for each service or...
2. The consumer can make bookings within 24 hours from ‘multple traders’, via a facilitator, where the consumer is passed to other traders in a ‘TARGETED’ manner but without their payment data being passed on (eg. airline websites where consumers purchase a fight and are ‘linked’ to other websites for eg. accommodaton or car hire )
Consumers buying Linked Travel Arrangements, will ONLY beneft from fnancial protecton from the person who ‘facilitates’ the arrangement!
Examples of LTAseg. A Travel Agent facilitates the sale to a consumer of a fight and then a hotel in separate contracts.
The Travel Agent must provide insolvency protecton. If both booked and the Agent then collapses, then the contracts should contnue. If the airline or hotel collapse, NO refund.
eg. An airline website facilitates the sale of a fight and links the consumer to a hotel website where a hotel is purchased within 24 hours
The airline shall provide insolvency protecton and repatriaton. No protecton if only hotel collapses
eg. A Hotel website facilitates the sale of room and links to an airline website where fights are purchased
If the hotel collapses, the consumer will be refunded BUT NOT for the fight!
Latest BEIS cinsideratins:
• Afer the frst element of an LTA is purchased online, there should be a requirement for an electronic message as to whether the consumer is purchasing an LTA or package
• There may be an issue under the new GDPA next year as to online package purchases where the consumers payment details are automatcally flled on the targeted website
• If the consumer is not told that they have purchased an LTA it will automatcally become a package
• BEIS will issue a GUIDANCE document for consumers and business as soon as the Regulatons are passed
So what are the important advantages?
1. Consumers will be provided with a ‘Standard Informaton Form’ detailing their arrangements priir ti purchase.
2. The ‘Package Holiday Informaton form’ lists their key rights regarding fnancial protecton and proper performance eg. right to a price reducton in the case of non-performance of the contract
3. The ‘Linked Travel Arrangement form’ will state;
a) The consumer will NOT beneft from any of the rights of package holiday travellers
b) Each of the individual service providers will be responsible for the proper performance of their service
c) Only the facilitatir of the Linked Travel Arrangement shall provide insolvency protecton
d) If the facilitator does not provide this ‘standard informaton’ the arrangement will beneft from all the package holiday protectons
Will the Due Diligence defence be relevant?
Courts will stll require evidence of a checking system which can be regularly updated, to include;
i) Contracts signed-of with suppliers…eg. facilites and pictures, before ofering for sale
ii) Clear Terms and Conditons for holiday sales and Special Ofers
iii) Instructons to Resort staf to inform of changes before and during the holiday season (errata)
What WILL yiu expect when buying a hiliday with the 2018 PTD?
• You pay separately for a fight online, then online hotel within 24 hours
• You buy a weekend stay in an online hotel (home or abroad)
• You pay online for a fight and hotel at an inclusive price
• You buy an online fight
*If you sell your holidays like this, you will be selling a Linked Travel Arrangement and provide your own insolvency protecton and if you are an airline, repatriaton as well.
No change here, must not be a misleading descripton?
It’ll stll be a package and you’ll get a Standard Informaton Form.
If you are linked to another website providing a hotel, it may be an LTA or even package if payment details transferred within 24 hrs!
Reminder re new Package Travel Directve 2015
• The Package Travel Regulatons are being overhauled afer 25 years!
• Linked Travel Arrangements are new
• Place of Establishment vs Place of Sale will need clarifying
• Airlines will need to protect the holidays they sell through website click-throughs
• More informaton for consumers:
Consumers must receive a standard informaton form before purchase
PTD2 – Preparing Yiur Business fir the Challenges Ahead
Practcal Steps
Lee Hills
What is yiur business midel?
• Operator/principle / Flight Plus?• Travel Agent?• OTA?• Bookings post 1.7.18 – changes will afect all but
some more than others!
Essental Dicuments / areas fir review
1) Booking conditons2) Agency Agreements3) Suppliers Agreements4) Insurance policies5) Pre-booking informaton
- telesales scripts- website content- brochures- resort/destnaton informaton
Essental Dicuments / areas fir review cint’d
6) Internal systems & Procedures- product informaton and verifcaton- complaints- pricing- assistance to customers
Key Changes and Amendments
Infirmatin Obligatins and Hiliday Cintract
1) Applies to operators and agents2) Includes brochures, websites and telephone bookingsPackagesi. Standard Informaton form with hyperlinks (to the directve)
- package- who is responsible for performance- fnancial protecton and repatriaton
Key Changes and Amendments cint’d
Infirmatin Obligatins and Cintent if the Hiliday Cintract (Artcles 5 – 8)
ii. Standard Informaton Form without hyperlinks.iii. Standard Informaton Form for – (click through sales)iv. Standard Informaton Form for LTA’s. nb – if not given may assume responsibilites for a package, liability and fnancial protecton!v. Content of the travel contract and documents to be supplied. (clarity and transparency).
Key Changes and Amendments cint’d
Persins if Reduced Mibility – (PRM’s)1) Provision of Informaton pre-booking.
- suitability of the product- clear and concise informaton (from supplier)- all accessibility needs?- warrantes/indemnites from suppliers to align
with product descripton?- applies to agents where informaton not
provided by the organiser.
Key Changes and Amendments cint’d
Price changes (surcharges)1) 2% - 10% scale abolished2) Increase up to 8% - pax right to cancel above
that (fuel charges, taxes, exchange rate)3) Notfcaton 20 days pre-departureBUT
Key Changes and Amendments cint’d
Price changes (surcharges) cint’d
4) Pass on price decreases (plus a reasonable admin charge)
5) Provision within booking conditons expressly reserved.
6) Price calculaton and justfcaton
Key Changes and Amendments cint’d
Transfer if the Package1) PTD 1 - conditonal right
- consumer “prevented” from travelling i.e. serious illness
2) PTD 2- absolute right- reasonable notce (7 days)- consumer liable for “reasonable costs, no
more than “actual” cost to the operator
Key Changes and Amendments cint’d
Transfer if the Package cint’d
3) Systems, suppliers (agreements) and evidence of costs
Key Changes and Amendments cint’d
Alteratins / changes pre-departure
1) PTD 1 & PTD 2 – minor changes permited.2) Signifcant alteratons – consumer rights
maintained i.e; acceptance, withdraw & substtute (plus partal refund) OR full refund (plus compensaton absent force majeure)
Key Changes and Amendments cint’d
Alteratins / changes pre-departure cint’d3) PTD 2 – “Essental Term” redefned as “main
characteristcs” includinga) Destnaton, itnerary – periods of stay (dates)b) Means, characteristcs & categories of transport,
points, dates and tmes of departure and return.c) Locaton, main features and category of
accommodatond) Meal plan
* Suppliers agreements and indemnites!
Key Changes and Amendments cint’d
Cancellatin by Cinsumer1) New right to cancel in the event of force
majeure at destnaton or the immediate “vicinity” which “signifcantly” efects performance of the package.- insurance- corresponding right between organiser and
supplier?
Key Changes and Amendments cint’d
Cancellatin by Cinsumer cint’d2) At any tme pre-departure, subject to
“appropriate and justfable” cancellaton fees.- pre-determined cancellaton fees recognised
BUT- must justfy on request taking holiday cost and deductng savings and income from alternatve deployment of travel services.
Key Changes and Amendments cint’d
Unaviidable and Extrairdinary Circumstances
1) Delay in return journey2) Accommodaton costs of customer – 3 days3) No limit for PRM’s (and their companion);
pregnant women, unaccompanied minor, persons in need of medical assistance (notfed 48 hours pre-departure)
Key Changes and Amendments cint’d
Unaviidable and Extrairdinary Circumstances cint’d
4) Review of contngency plans5) (re) negotate suppliers agreement?6) Contract / agreement, indemnites with
airlines7) Insurance!
Key Changes and Amendments cint’d
Custimer Cirrespindence and Cimplaints
1) Right to direct to the agent2) Time limits in booking conditons
commence from receipt by the agent3) Review agency agreement and
S.L.A’s/indemnites
D – Day and Beyind…
1) Final wording awaited but intenton of the legislaton not afected.
2) Will apply to all bookings made post 1.7.18.3) Be clear on the business model you will be
operatng 4) Begin to review / redraf your booking
conditons and standard informaton forms
D – Day and Beyind…cint’d
5) Review your insurance policies6) Review your product destnaton informaton 7) Relatonships with agents and agency
agreements8) Relatonships with suppliers and suppliers
agreements.9) Don’t panic!
Important Disclaimer The above slides are provided free and are only a very basic guide to the law. They are designed to be read in conjunction with the associated presentation. They are not intended to reflect the law in full and therefore should not under any circumstances be relied upon when considering particular situations. To the extent permitted by law neither Mayo Wynne Baxter LLP nor any of its partners or staff shall be liable for any loss suffered as a result of anyone relying on the contents of these notes and readers are strongly advised that they should take specific legal advice as and when particular situations arise.
General Data Pritectin Regulatin:What’s ti kniw?
Presented by Martn Williams
Friday 16 March 2018
When?
• Due to take efect on 25 May 2018
• Data Protecton Bill going through Parliament
Persinal data“any informaton relatng to an identfed or identfable natural person (‘data subject’); an identfable natural person is one who can be identfed directly or indirectly, in partcular by reference to an identfer such as a name, an identfcaton number, locaton data, an online identfer or to one or more factors specifc to the physical, physiological, genetc, mental, economic, cultural or social identty of that natural person”
Pricessing“any operaton or set of operatons which is performed on personal data or on sets of personal data, whether or not by automated means, such as collecton, recording, organisaton, structuring, storage, adaptaton or alteraton, retrieval, consultaton, use, disclosure by transmission, disseminaton or otherwise making available, alignment or combinaton, restricton, erasure or destructon”
Cinsent
“any freely given, specifc, informed and unambiguous indicaton of the data subject’s wishes by which he or she, by a statement or by a clear afrmatve acton, signifes agreement to the processing of personal data relatng to him or her”
Cinsent
• Explicit for special category data• Clearly distnguishable from other maters• Onus on controller to show given• Can be withdrawn at any tme
Sime ither terms
• Profling• Pseudonymisaton• Filing system• Controller• Processor• Cross-border processing
Principles fir pricessing
• Lawful processing• Specifed, explicit and legitmate purposes• Adequate, relevant and limited• Accurate and up to date• Keep for no longer than is necessary• Ensure appropriate security• Accountability
Lawful pricessing
• Consent • Necessary for the performance of a contract• Compliance with legal obligatons• Protecton of vital interests• Necessary for the performance of public
interests• Necessary for the purposes of legitmate
interests
Special categiry data
• Default setng is that this should not be processed
• Can do so under certain circumstances, • For what purpose is the data being
processed?
Data Pritectin Ofcer?• Where the processing is carried out by a public
authority or body• Where the core actvites of the controller or
the processor consist of processing operatons, which require regular and systematc monitoring of data subjects on a large scale
• Where large scale processing of special category data or criminal records
DPO rile• Relevant expertse and professional qualites• Involvement in all issues relatng to
protecton of data• Independence – no conficts• Reportng at board level• Monitoring and impact assessments• Co-operaton with ICO• Record keeping
Pricessing management
• What do you hold?• Where does it come from?• Who do you share it with?• Audit• Maintain a record of processing
Impact assessments
Required where high risk to individuals, e.g.:• Where a new technology is being deployed• Where a profling operaton is likely to
signifcantly afect individuals • Where there is processing on a large scale of
special category data
Autimated decisiin making
• Does this happen?
• Right to object and have a human agent inserted in the process
Outsiurced pricessing?
• Everything totally in-house?
• What data sharing and processing agreements are in place?
“delete it, freeze it, cirrect it”
• The right to erasure• The right to rectfcaton• The right to restricton of processing• The right to object to processing
Data subject access requests• Broadly similar provisions• No fxed fee• New areas for provision of informaton
The envisaged period of storage Details of rights Safeguards on a third country transfer of data
• Comply without undue delay – possibly 1 month (possibly 3 months if complex)
Data subject access requests• Can charge for multple copies• Electronic data to be provided in electronic
form• Provision of data should not adversely afect
the rights and freedoms of others• If request is “manifestly unfounded or
excessive” may charge a “reasonable” fee – or refuse to act altogether
Data breaches
• Duty to self-report to ICO – within 72 hours• Duty to report to data subject if “likely to
result in a high risk” to their “rights and freedoms”
• Inform of nature, likely consequences and descripton of measures taken or to be taken to deal with it
• All breaches to be recorded
Cimpensatin and penaltes
• Right to claim compensaton in cases of fnancial loss or non-material damage
• Warnings and compliance notces• Penaltes up to 220 million of 4% of global
turnover
Important Disclaimer The above slides are provided free and are only a very basic guide to the law. They are designed to be read in conjunction with the associated presentation. They are not intended to reflect the law in full and therefore should not under any circumstances be relied upon when considering particular situations. To the extent permitted by law neither Mayo Wynne Baxter LLP nor any of its partners or staff shall be liable for any loss suffered as a result of anyone relying on the contents of these notes and readers are strongly advised that they should take specific legal advice as and when particular situations arise.
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