The Bribery Act 2010 and its impact on the advertising industry

In force from 1st July 2011, the Bribery Act consolidated and modernised the existing offences of offering and accepting bribes, and created two new offences: bribing a foreign public official, and the failure of a commercial organisation to prevent bribery. We will look at each of the four offences in turn and some potential scenarios relevant to media and creative agencies.

Bribing another person (the ‘section 1 offence’)

If someone offers, promises or gives financial or other advantage to another person, intending it to secure ‘improper performance’ of a ‘relevant function or activity’, then they will have committed an offence.

Understanding what is meant by ‘improper performance of a relevant function or activity’ is clearly crucial.

•  The types of function or activity that are relevant under the Act (i.e. those which might be ‘improperly performed’) are broader than in the past: they now include not only the functions of public authorities, but also transactions between private parties.
• The Act defines ‘improper performance’ as the breach of any expectation of trust, impartiality or good faith that applies to the relevant function or activity. The courts will weigh this up by reference to what a reasonable person in the UK would expect in relation to the relevant function or activity (so it is no defence to point to the local customs of foreign countries unless you can show that its written law sanctions the payment).
• The reach of the new Act is global. Not only do the sections 1, 2 and 6 offences apply if the act takes place in the UK, but they also apply to British citizens, individuals ordinarily resident in the UK and bodies that are incorporated in the UK, wherever the act of bribery takes place.

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