The presentation itself is available here: http://www.youtube.com/embed/HtyNy3hL7X8

1. Keeping your house in order:
Getting it right when selling online
Robert Blamires 21 March 2012
Senior Associate
robert.blamires@ffw.com
+44 (0) 20 7861 4136
+44 (0) 7872 822 353
www.linkedin.com/in/robblamires

2. Introduction
1. What you can’t ignore:
• E-commerce / distance selling / general consumer protection
• Privacy / data protection
2. Promotion using social media:
• Content ownership
• Right to use the platform
• Rights granted to the platform

3. Distance selling / electronic commerce
• Information obligations, eg:
• Name
• Geographic address
• Contact details
• Mandatory cancellation rights

4. Distance selling / electronic commerce
Order acknowledgement
• Acknowledge
receipt of order
• Without undue
delay
• By electronic
means

5. Distance selling / electronic commerce
Cancellation right
• Consumers can cancel within seven working days from the
day after the day on which
• The goods are received
• A contract for services is concluded
• Requirement to provide a refund within 30 days of
cancellation
• Some limited exceptions

6. Distance selling / electronic commerce
Recent developments: Consumer Rights Directive
• Due by Oct 2013:
• Extends cooling off period – 7 working days to
14 days
• Reduces period by which traders must refund on
cancellation – 30 days to 14 days
• Wider rights for consumers to withdraw
• Will necessitate a review of any online retail
platforms

7. Distance selling / electronic commerce
Recent developments: Surcharges
• Ban on surcharges for debit and credit card
transactions which exceed the actual costs of
handling the payment
• To be implemented by the EU Consumer Rights
Directive but, following OFT recommendations, UK
government is implementing these changes early
(expected by end 2012).
• Expected to cover most retail sectors
• Consultation expected shortly

8. Consumer protection
Legislation / regulation
prohibiting unfairness in:
• contract terms
• commercial practices

9. Distance selling / electronic commerce / consumer
protection
Consequences of failure to comply:
• Applicable contract terms will be unenforceable
• Enforcement proceedings by the Office of Fair Trading
• Bad press!

10. Consumer protection
Recent developments: stealth advertising
• Infringements to:
• Falsely claim / create the impression that you’re not acting for
purposes relating to your business
• Falsely represent yourself as a consumer
• Use editorial content in the media to promote a product without
disclosing in the content that the promotion has been paid for
• For example:
• Reviewing your own products on a website / internet forum without
disclosing that you are the reviewer
• Using fake blogs or “flogs” (creating a blog promoting your own
products, under the guise of an ordinary consumer)

11. Consumer protection
Recent developments: stealth advertising
• In 2010, the OFT Investigated Handpicked Media, a
commercial blogging network operator
• Authors of online content on blogs and microblogs (i.e.
twitter) were promoting Handpicked Media’s clients
without disclosing that promotions had been paid for

12. Consumer protection
Recent developments: stealth advertising
• Infringements:
• Misleading omissions
• Other unfair commercial practices (eg paid-for editorial content
without adequate disclosures)
• OFT confirmed: online advertising is ‘misleading’ if
advertiser does not disclose that promotional activity was
paid for
• Handpicked Media signed undertakings to disclose all
paid-for promotional comments (and suffered bad press!)

13. Consumer protection
Recent developments: stealth advertising

14. Consumer protection
Recent developments: stealth advertising
#spon – is this enough?

15. Privacy and data protection
• Personal data – data from which a living individual
can be identified
• Applies to all personal data, not just certain types
• Applies to all businesses, not just consumer-
facing businesses

16. Privacy and data protection
Key Principles:
• Fair and lawful processing
• Limited purposes
• Adequate, relevant and not excessive
• Accurate
• Kept no longer than necessary
• Processing in accordance with the data subject's rights
• Secure
• No transfer to countries without adequate protection

17. Privacy and data protection
• Data controllers and data processors
• Registration
• Privacy policies
• Data security
• Training for employees

18. Privacy and data protection
Consequences of compliance failures:
• Fines – now up to £500,000
• Disruption to business critical data processing
• Complaints from customers, employees, suppliers
etc.
• “Naming and shaming” – brand damage
• Loss of business!

19. Privacy and data protection
Recent developments: cookies
‘Cookie consent’ rule: cookies only allowed if the user:
• has been given clear and comprehensive information
about the purposes of the processing
and
• has given his or her consent

20. Privacy and data protection
Recent developments: cookies

21. Social media - key points
1. Content ownership
2. Right to use the platform
3. Rights granted to the platform

22. Social media – (1) content ownership
Can you use your content in a social media campaign?
• Copyright Designs and Patents Act 1988
11.First ownership of copyright
The author of a work is the first owner of any copyright in it, subject to
the following provisions.
Where a literary, dramatic, musical or artistic work[, or a film,] is made
by an employee in the course of his employment, his employer is the
first owner of any copyright in the work subject to any agreement to
the contrary.
90.Assignment and licences
1. Copyright is transmissable by assignment…
4. A licence granted by a copyright owner is binding…

23. Social media – (2) right to use the platform
23

24. Social media – (3) rights granted to the platform
24

25. Social media – (3) rights granted to the platform
25

26. Checklist – Social media campaigns
Before running a social media campaign:
• Do you have all necessary IP rights in content that will
be uploaded?
• Are appropriate agreements in place with designers,
developers, content providers and employees?
• Do you have consent or other lawful grounds for
collecting / using any personal data?
• Have you reviewed the site’s terms, and checked they
are acceptable?

27. Checklist – Contracting with social media platforms
Be realistic about the limited scope for negotiation with
major platforms
Checklist
• Ensure you know which platform terms / other agreement(s) you are bound by
• Ensure you are clear about the nature of the services provided
• Check licensing provisions acceptable / understood by the business
• Check you can comply with content and other warranties / acceptable use policies
• Ensure payment criteria are clear and appropriate
• Ensure you understand what rights you and the platform will have to access and use
user data
• Ensure term and termination provisions understood
• Ensure liability provisions are understood

28. Conclusion / summary
• Include basic information about you and your business on
your website
• Acknowledge orders promptly
• Allow consumers to cancel orders
• Contract with consumers on terms that are fair and balanced
• Be transparent in marketing / promotions
• Limit your collection of personal data
• Register with the ICO
• Seek consent to use cookies
• If promoting on social media platforms ensure you have (and
are willing to grant) all necessary rights

29. Robert Blamires
Senior Associate
robert.blamires@ffw.com
+44 (0) 20 7861 4136
+44 (0) 7872 822 353
www.linkedin.com/in/robblamires