Digital Markets, Competition and Consumers Act 2024

326 Disclosing information overseas U.K.

(1) Part 9 of EA 2002 (information) is amended as follows.

(2) For section 243 (overseas disclosures) substitute—

“243A Overseas disclosures for both overseas and domestic purposes

(1) A public authority which holds information to which section 237 applies (“the discloser”) may disclose that information to an overseas public authority for the purpose of facilitating both—

(a) the exercise by the discloser of any function it has under or by virtue of this Act or any other enactment, and

(b) the exercise by the overseas public authority of any function which it has relating to—

(i) carrying out investigations in connection with the enforcement of any relevant law by means of civil proceedings;

(ii) bringing civil proceedings for the enforcement of such law or the conduct of such proceedings;

(iii) the investigation of crime;

(iv) bringing criminal proceedings or the conduct of such proceedings;

(v) deciding whether to start or bring to an end such investigations or proceedings.

(2) Subsection (1) does not apply to any of the following—

(a) information which is held by a person who is a private designated enforcer for the purposes of Chapter 3 of Part 3 of the Digital Markets, Competition and Consumers Act 2024 (see section 151 of that Act);

(b) information which comes to a public authority in connection with an investigation under Part 4 or section 174 of this Act;

(c) information which comes to a public authority in connection with an investigation under section 11 of the Competition Act 1980;

(d) legacy information within the meaning of subsection (5).

(3) In subsection (1)(a), the reference to an enactment includes a reference to an enactment contained in—

(a) an Act of the Scottish Parliament;

(b) Northern Ireland legislation;

(c) subordinate legislation.

(4) In subsection (1)(b)(i), “relevant law” means—

(a) this Act, any enactment specified in Schedule 14 and such subordinate legislation as is specified by order for the purposes of section 238(1);

(b) any enactment, obligation or rule of law specified in Schedule 15 to the Digital Markets, Competition and Consumers Act 2024 (consumer protection enactments);

(c) any legislation, or any obligation or rule of law in a country or territory outside the United Kingdom which appears to the discloser to make provision corresponding or similar to anything within paragraphs (a) and (b).

(5) In subsection (2)(d), “legacy information” means information which—

(a) comes to a public authority in connection with the exercise of its functions under or by virtue of paragraphs 15 to 18 of Schedule 24 relating to investigations under Parts 4 or 6 of the 1973 Act;

(b) came to a public authority—

(i) before the coming into force of this section, and

(ii) in connection with the exercise of its functions under or by virtue of paragraphs 15 to 18 of Schedule 24 relating to investigations under Part 5 of the 1973 Act;

(c) came to a public authority—

(i) before 1 July 2021, and

(ii) in connection with an investigation under Part 3 of the Enterprise Act 2002.

243B Overseas disclosures for overseas purposes only

(1) A public authority which holds information to which section 237 applies (“the discloser”) may disclose that information to an overseas public authority for the purpose mentioned in section 243A(1)(b).

(2) Subsection (2) of section 243A applies for the purposes of subsection (1) of this section as it applies for the purposes of subsection (1) of that section.

243C Overseas disclosures for designated cooperation arrangement purposes

(1) A public authority which holds information to which section 237 applies (“the discloser”) may disclose that information to an overseas public authority for a purpose permitted under or by virtue of a designated cooperation arrangement.

(2) “Designated cooperation arrangement” means an arrangement or agreement that meets all of Conditions A to D.

(3) Condition A is that the arrangement or agreement is between—

(a) a public authority and an overseas public authority, or

(b) the United Kingdom and a country or territory.

(4) Condition B is that the arrangement or agreement relates to cooperation between—

(a) the public authority and the overseas public authority, or

(b) public authorities in the United Kingdom and persons or bodies in that country or territory,

for the purposes of facilitating the exercise of functions related to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b).

(5) Condition C is that the arrangement or agreement provides for—

(a) the overseas public authority and the public authority, or

(b) a person or body in that country or territory and public authorities in the United Kingdom,

to provide corresponding or substantially similar assistance to each other for the purposes of facilitating the exercise of functions related to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b).

(6) Condition D is that the arrangement or agreement is designated in regulations made by the Secretary of State.

(7) Before designating an arrangement or agreement in regulations under subsection (6), the Secretary of State must have regard in particular to whether the arrangement or agreement contains provision restricting or preventing—

(a) the use for another purpose of information disclosed for a purpose permitted under or by virtue of the arrangement or agreement;

(b) the further disclosure of such information.

(8) The Secretary of State may not designate an arrangement or agreement in regulations under subsection (6) unless the Secretary of State is satisfied that—

(a) the law and practice of the country or territory, or the country or territory of the overseas public authority, with whom the arrangement or agreement is with provides appropriate protection against self-incrimination in criminal proceedings, and

(b) the law and practice of that country or territory provides appropriate protection in relation to the storage and disclosure of confidential information.

(9) For the purposes of subsection (8), protection is appropriate if it provides protection in relation to the matter in question which corresponds or is substantially similar to that so provided in any part of the United Kingdom.

(10) Regulations under subsection (6) are to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

243D Use and further disclosure of information disclosed under sections 243A and 243B

(1) Subsections (2) and (3) apply to information disclosed by virtue of section 243A to the extent that the disclosure was to facilitate the exercise by the discloser of any function it has under or by virtue of this Act or any other enactment (“the original function”) in relation to a particular matter (“the original matter”).

(2) The information must not be used by the overseas public authority other than for facilitating the exercise by the discloser of the original function in relation to the original matter unless—

(a) the use is for the purpose of facilitating the exercise by the discloser of any function it has under this Act or any other enactment (other than the original function) whether or not in relation to the original matter, and

(b) the discloser consents to the use of that information for that purpose.

(3) The information must not be further disclosed by the overseas public authority unless—

(a) the further disclosure is for the purpose of facilitating the exercise by the discloser of any function it has under this Act or any other enactment (whether or not the original function) whether or not in relation to the original matter, and

(b) the discloser consents to the further disclosure of the information for that purpose.

(4) Subsections (5) and (6) apply to information disclosed by virtue of section 243A or 243B to the extent that the disclosure was to facilitate the exercise of functions of an overseas public authority relating to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b) (“the original function”) in relation to a particular matter (“the original matter”).

(5) The information must not be used by the overseas public authority other than for facilitating the exercise by the authority of the original function in relation to the original matter unless—

(a) the use is for the purpose of facilitating the exercise of a function which the authority has relating to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b) (other than the original function) whether or not in relation to the original matter, and

(b) the discloser consents to the use of that information for that purpose.

(6) The information must not be further disclosed by the overseas public authority unless—

(a) the further disclosure is for the purpose of facilitating the exercise of any of its functions relating to anything mentioned in sub-paragraphs (i) to (v) of subsection (1)(b) of section 243A (whether or not the original function) whether or not in relation to the original matter, and

(b) the discloser consents to the further disclosure of the information for that purpose.

(7) In deciding whether to consent to the use or further disclosure of information for the purposes of subsection (2)(b), (3)(b), (5)(b) or (6)(b), the discloser must have regard to the considerations in section 243F to which it would be required to have regard if it were deciding to disclose the information under 243A or 243B.

(8) Nothing in this section prevents information being used, or further disclosed, by the overseas public authority if that use, or further disclosure, is required under the law of the country or territory of the authority.

243E Directions by the Secretary of State relating to overseas disclosures under sections 243A and 243B

(1) The Secretary of State may direct that a disclosure permitted under section 243A or 243B must not be made if the Secretary of State thinks that, in connection with any matter in respect of which the disclosure could be made, it is more appropriate—

(a) if any investigation is to be carried out, that it is carried out by an authority in the United Kingdom or in another specified country or territory (rather than by the overseas public authority);

(b) if any proceedings are to be brought, that they are brought in a court in the United Kingdom or in another specified country or territory (rather than in the country or territory of the overseas authority).

(2) In subsection (1), “specified” means specified in the direction.

(3) The Secretary of State must take such steps as the Secretary of State thinks are appropriate to bring a direction under subsection (1) to the attention of persons likely to be affected by it.

243F Relevant considerations relating to overseas disclosures under sections 243A and 243B

(1) This section applies when a public authority is deciding whether to make a disclosure under section 243A or 243B.

(2) In deciding whether to make a disclosure under section 243A, the public authority must have regard in particular to the following considerations—

(a) whether the law and practice of the country or territory to whose authority the disclosure would be made provides appropriate protection against self-incrimination in criminal proceedings;

(b) whether the law and practice of that country or territory provides appropriate protection in relation to the storage and disclosure of confidential information.

(3) In deciding whether to make a disclosure under section 243B, the public authority must have regard in particular to the considerations in subsection (2) and the following additional considerations—

(a) whether the matter in respect of which the disclosure is sought is sufficiently serious to justify making the disclosure;

(b) whether the disclosure would further the aims or purposes of any convention or treaty relating in whole or in part to cooperation in matters relating to competition or consumer protection to which the United Kingdom and the country or territory of the authority to whom the disclosure would be made are parties;

(c) whether there are arrangements in place for the provision of mutual assistance as between the United Kingdom and that country or territory to whose authority the disclosure would be made in relation to the disclosure of information of the kind to which section 237 applies;

(d) whether a person or body in that country or territory would assist the public authority in a way that corresponds or is substantially similar to the assistance that it is proposed the public authority give to the overseas public authority by making the disclosure.

(4) For the purposes of this section, protection is appropriate if it provides protection in relation to the matter in question which corresponds or is substantially similar to that so provided in any part of the United Kingdom.

(5) The Secretary of State may by regulations amend subsections (2) and (3) so as to—

(a) alter any consideration for the time being included in those subsections;

(b) add further considerations;

(c) remove any considerations.

(6) Regulations under subsection (5) are to be made by statutory instrument and are subject to annulment in pursuance of a resolution of either House of Parliament.”

(3) In section 244 (specified information: considerations relevant to disclosure)—

(a) in subsection (2), for “information whose disclosure the authority thinks is contrary to the public interest” substitute “sensitive information”;

(b) in subsection (3), for the words after “(so far as practicable)” to the end of paragraph (b) substitute “any commercial information or private information”.

(4) In section 245 (offences) in subsection (2), for “243(4)” substitute “243E”.

(5) For section 246 substitute—

“246A Interpretation

In this Part—

• “commercial information” means information relating to any business of an undertaking whose disclosure the public authority concerned or, for the purposes of section 243C the Secretary of State, thinks might significantly harm the undertaking’s legitimate business interests;

• “confidential information” means commercial information, private information or sensitive information;

• “overseas public authority” means a person or body in any country or territory outside the United Kingdom which appears to the discloser (within the meaning of any of sections 243A to 243C) to exercise functions of a public nature in relation to anything mentioned in sub-paragraphs (i) to (v) of section 243A(1)(b);

• “private information” mean information relating to the private affairs of an individual whose disclosure the public authority concerned, or for the purposes of section 243C the Secretary of State, thinks might significantly harm the individual’s interests;

• “sensitive information” means information whose disclosure the public authority concerned or, for the purposes of section 243C the Secretary of State, thinks would be contrary to the public interest;

• “subordinate legislation” has the same meaning as in section 21(1) of the Interpretation Act 1978 and includes an instrument made under—

  (a)

  an Act of the Scottish Parliament;

  (b)

  Northern Ireland legislation.”

(6) In section 59 of the Companies (Audit, Investigations and Community Enterprises) Act 2004 (information), in subsection (6)—

(a) for “section 243(6)” substitute “section 243F(2) and (3)”;

(b) for “(overseas disclosures)” substitute “(relevant considerations relating to overseas disclosures)”.

Commencement Information

I1 S. 326 in force at Royal Assent for specified purposes, see s. 339(2)(c)