Judith at SEO Chicks was looking at the new UK Unfair Trading Regulations

Here is a link to the official guidance (PDF).

What follows are my own notes whilst reading through the document, which I thought some readers might find useful, though you should read it in full if you trade from the UK (maybe 400+ subscribers)

6 BANNED PRACTICES (SCHEDULE 1)

(7) Falsely stating that a product will only be available for a very limited
time, or that it will only be available on particular terms for a very limited
time, in order to elicit an immediate decision and deprive consumers of
sufficient opportunity or time to make an informed choice.

A trader falsely tells a consumer that prices for new houses will be
increased in 7 days time, in order to pressurise him into making an
immediate decision to buy.

That hits 50% or more of long page sales letters and many Product Launch Formula tactics such as closing the doors then reopening just a few days later after a “recount” of total sold.

How about those “slightly damaged” copies offers for physical products?

(10) Presenting rights given to consumers in law as a distinctive feature
of the trader’s offer.
A stationer sells pens. He advertises on the following basis: ‘Pens for
sale. If they don’t work I’ll give you your money back or replace them.
You won’t find this offer elsewhere’. If the pen is faulty at the time of
purchase the consumer would be entitled to a refund, repair or
replacement under contract law. The trader’s emphasis on the unique
nature of his offer to refund or replace would breach the CPRs.

Careful when wording guarantees either as a merchant or affiliate

(11) Using editorial content in the media to promote a product where a
trader has paid for the promotion without making that clear in the
content or by images or sounds clearly identifiable by the consumer
(advertorial).
A magazine is paid by a holiday company for an advertising feature on
their luxury Red Sea diving school. The magazine does not make it clear
that this is a paid-for feature – for example by clearly labelling it
‘Advertising Feature’ or ‘Advertorial’. This would breach the CPRs.

It looks like disclosure in the content is becoming law for things like paid posts and reviews on blogs.

It could be argued that this also applies to affiliate links.

(14) Establishing, operating or promoting a pyramid promotional scheme
where a consumer gives consideration for the opportunity to receive
compensation that is derived primarily from the introduction of other
consumers into the scheme rather than from the sale or consumption of
products.
A trader operates a holiday club which offers consumers, on payment of
a membership fee, the opportunity of earning large amounts of money by
recruiting new members to the club. The other benefits of club
membership are negligible compared to the potential rewards of earning
commission for

Pyramids, but this might also affect products sold as resale rights, especially if that is the only option, or closed affiliate programs.

(20) Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if
the consumer has to pay anything other than the unavoidable cost of
responding to the commercial practice and collecting or paying for
delivery of the item.
A trader advertises a ‘free’ gift. He then tells consumers that in order to
receive their ‘free’ gift they need to pay an extra fee. This would breach
the CPRs.

Careful how you word those bonuses, not only in your reviews or emails, but especially email headlines and Adwords.

(22) Falsely claiming or creating the impression that the trader is not
acting for purposes relating to his trade, business, craft or profession, or
falsely representing oneself as a consumer.
A second-hand car dealership puts a used car on a nearby road and
displays a handwritten advertisement reading ‘One careful owner. Good
family run-around. £2000 or nearest offer. Call Jack on 01234 56789′.
The sign gives the impression that the seller is not selling as a trader,
and hence this would breach the CPRs.

Are you really just the average Joe making a fortune, or do you have an army of staff or outsources doing everything.

(30) Explicitly informing a consumer that if he does not buy the product
or service, the trader’s job or livelihood will be in jeopardy.

If your house burns down, be careful how you word a firesale.

7 MISLEADING PRACTICES (REGULATIONS 5 AND 6)
7.1 The CPRs prohibit misleading actions and misleading omissions (as
detailed in regulations 5 and 6),16 which cause or are likely to cause the
average consumer to take a different decision.
7.2 A practice can mislead by action or omission or both. These prohibitions
aim to ensure that consumers get from traders, in a clear and timely
fashion, the information they need to make informed decisions relating
to products. In addition, in some commercial practices (referred to as
‘invitations to purchase’) certain specific information must be given to
consumers, unless apparent from the context.

7.6 These are actions that mislead by:
• containing false information OR deceiving or being likely to deceive
the average consumer (even if the information they contain is
factually correct),17
and
• the false information, or deception, relates to one or more pieces of
information in a (wide-ranging) list (see below),
and
• the average consumer takes, or is likely to take, a different decision
as a result.

Which crappy traffic stats package are you using to inflate numbers?

Comments on the following are in bold inline:-

7.7 The list of information mentioned above includes the main factors
consumers are likely to take into account in making decisions relating to
products, for example the main characteristics of the product and the
price or the way it is calculated. The full list follows:

(a) the existence or nature of the product
You really are just a simple guy, and not a marketer trying to sell his ebook written on Elance.
(b) the main characteristics of the product
The whole truth, not the convenient truth
(c) the extent of the trader’s commitments
(d) the motives for the commercial practice
Does this afect loss-leaders, upsell, downsell process?
(e) the nature of the sales process
(f) any statement or symbol relating to direct or indirect sponsorship or
approval of the trader or the product
Testimonials
(g) the price or the manner in which the price is calculated
Include +VAT (Geotarget) on sales pages for Clickbank?
(h) the existence of a specific price advantage

Are you split testing your pricing? This might affect you

(i) the need for a service, part, replacement or repair
(j) the nature, attributes and rights of the trader or his agent
(k) the consumer’s rights or the risks he may face.

The ‘main characteristics of the product’ include:

(a) availability of the product

Thinking of using scarcity?
(b) benefits of the product
Get 1,000,000 subscribers overnight
(c) risks of the product
Did we forget to tell them about Google bans?
(d) execution of the product
(e) composition of the product
(f) accessories of the product
(g) after-sale customer assistance concerning the product
(h) the handling of complaints about the product
(i) the method and date of manufacture of the product
(j) the method and date of provision of the product
(k) delivery of the product
(l) fitness for purpose of the product
(m) usage of the product
(n) quantity of the product
(o) specification of the product
(p) geographical or commercial origin of the product
(q) results to be expected from use of the product
(r) results and material features of tests or checks carried out on the
product.

You need real proof…

The ‘nature, attributes and rights of the trader or his agent’ include:

(a) identity
(b) assets
(c) qualifications
(d) status
(e) approval
(f) affiliations or connections

Here is that disclosure thing again

(g) ownership of industrial, commercial or intellectual property rights
(h) awards and distinctions.

Misleading Omissions (regulation 6)
Giving insufficient information about the product
7.12 Practices may also mislead by failing to give consumers the information
they need to make an informed choice (in relation to a product). This
occurs when practices:
• omit or hide material information, or provide it in an unclear,
unintelligible, ambiguous or untimely manner,
and
• the average consumer takes, or is likely to take, a different decision
as a result
7.13 A misleading omission can also occur where a trader fails to identify the
commercial intent of a practice, if it is not already apparent from the
context. The presence of a price, or of a statement making it clear that
the practice is commercial (for example: ‘this is an advertisement’), are
examples of how commercial intent could be made clear.
OFT931 35
7.14 When deciding whether a practice misleads by omission, the courts will
take account of the context.18

Commercial intent = more disclosure

7.33 Information that is deemed to be material in invitations to purchase is set
out in regulation 6(4), which is summarised below:
• the main characteristics of the product – for example, what it is and
what it does – to the extent appropriate to the medium used by the
invitation to purchase and the product
• the identity of the trader, such as his trading name, and the identity
of any other trader on whose behalf the trader is acting
• the geographical address of the trader or traders

The geographical address has been required since December 2006 (si3429)

The document goes on to cover such things as

• Professional Diligence
• Material Distortion
• Compliance and Enforcement covering
• education, advice and guidance
• established means
• codes of conduct
• civil enforcement
• criminal enforcement

This document covers business or “trader” to consumer regulations, and specific that this does not cover business to business transactions where the product is intended for ultimate business use. If a product is sold to wholesale, then on to a consumer, a lot of this still applies.

I have no idea how this applies to foreign traders doing business with the UK, or where they have a satellite office in the UK or Europe.

I am not a lawyer, and note that the linked document is only guidance and not the full version.
I may very well be reading into this more than the law intended, but this seems to compliment SI3429 which has been largely ignored by many online businesses, and I assume isn’t enforced effectively for this to be the case over a year since publication.
So far I have only spent a couple of hours on the 88 page document and this blog post (speed reading the key information I need). You should read the document in full to extract the information you need.

I know Tim Nash knows a few lawyers who specialise in this kind of thing.

Update

Tim has just published an overview of which legal notices you might be expected to publish on your site. It is aimed at people in the UK and possibly Europe and many such regulations are universal.
Remember, I am not a lawyer, and nor is Tim

Update 2

It took a couple of weeks, but there now seems to be some mainstream online media attention to these new regulations.

Adage points out that this came into force across Europe in January though only goes into some of the most mainstream forms of WOMM.

Paid Content (UK) also focuses on the more corporate sector

Peter Parks has condensed things down to lots of bullet points.

Over on Daily Blog Tips, 10 Essential Legal Points For Bloggers covers other legal matters. I think Tims post is beter on legal paperwork, but it does cover a few other angles. It was written by lawyer Steve Imparl so has some level of credibility, I am going to have to delve into his blog archives to see if there is some more meaty content.

I have always been attracted to the Subscribe-to-Comments plugin, but at the same time installing it has always filled me with dread. Whilst it can be a great community building aid, and a useful tool for regular visitors who like to interact, it can be a liability.

There are 2 aspects of subscribe to comments that present a danger to a successful business blog

• Email Flow Control
• Legal compliance with CAN SPAM and SI (3429 of 2006)

Email Flow Control

By default, the wp_mail() function of WordPress uses PHPs mail() function, a way of sending instant emails from your server. Unfortunately, most popular hosts have restrictions on how many emails can be sent from your server over 24hrs, and it is very typical for there to be an hourly limit as well.
As an example, here are the Hostgator policy for email delivery:-

There is a 200 hourly email limit per domain this limit is also applied towards mailman. If you send over this amount in any hour most of the e-mails will bounce back with a undeliverable error.

They also suggest one email every 6 seconds – unfortunately if 50 people have subscribed to comments, one new comment sends 50 emails out, which in my opinion is quite worrying.

Most hosts have PHPMailer installed, or available for installation, and you could try your luck using wpPHPmailer plugin, though this seems to be unsupported these days (1 year+ and no reply from developer in the support thread) – support for PHPMailer has actually just been added to WPMU. PHPmailer itself hasn’t been updated in a long time, thus I am slightly hesitant to use it, though I am not technical enough to give a reason for my pessimistic stance.

Swift Mailer & the ShiftThis SMTP Mailer Plugin are the alternative that we are going to use instead, and both are actively supported.

ShiftThis SMTP Mailer Plugin

Installing this plugin is actually extremely easy, as long as you don’t disappear off in the wrong direction. The plugin comes with Swift Mailer already in a sub-folder.
You don’t need to visit the Swift Mailer site at all. If you are not extremely technical, you could waste hours, if not days digging around the Swift Mailer site, and then the the various testing applications. None of that is needed.

Installation:

Download plugin
Extract plugin
Copy / Upload to your normal plugin folder

Configuration:

You could set it up to use your local SMTP server – that would then however count towards how many emails you are sending from your domain, which might not be an ideal situation.

You could also set things up to use Gmail – I can actually think of all kinds of benefits to using Gmail for your SMTP, though if a site is a company site, you might want to use one of the upgraded Google offerings. Also take a look at this old Lifehacker article. You will also have to decide whether you really want your sent email within Gmail to fill up with comments being posted to your blog.

Currently the code doesn’t seem to support the email flow control plugin of Swift Mailer, but if you are using Gmail for SMTP this might not be a problem. I have submitted a message on the support forums to see if this can be integrated with some easy to understand flow controls.

Legal compliance with CAN SPAM and SI (3429 of 2006)

I should note:-

• I am not a lawyer, and the wording I have used was not written by a lawyer
• You should check with your legal consultant and this is provided for entertainment purposes only

No matter how effective your spam controls and how restrictive your comments policy, commercial email messages can get through, and a subscribed email recipient could just as easily claim “this is spam” for a comment subscription as they would for a mailing list.

It is quite common for people engaged in internet marketing to use an email service such as Get Response or Aweber to ensure delivery of their emails, and to protect against spam complaints.

This solution isn’t necessarily going to help with email delivery, but at least offer some “cover your a$$” protection should you happen to receive a complaint.

Whilst elsewhere I have been challenged to provide conclusive proof that you should take precautions with any aspect of your email usage, I am not going to offer that in this write up.
You may well look on this as scare tactics and FUD.

It is your choice based on your own research and the legal advice you have received whether you think emails being sent from your domain which are not totally under your control could represent a problem.
I honestly don’t know if Safe Harbour rules might apply to email delivery. I don’t know of any blog owner who has had problems either from a legal perspective, or with their hosting or domain registrars, but then I personally only know a few people who have been killed in car accidents – I know a lot more people who drive cars than publish business blogs.

Subscribe To Comments Hack

This is just a hack. I decided to offer a hack for those concerned and don’t intend to offer a patched file. Ideally Subscribe To Comments should offer an interface in the options to allow various additional messages to be added to outgoing email messages. This wouldn’t necessarily just have to be legal information, it could also include additional advertising.

Around line 600 I have added the following:-

[PHP]
$message .= __(“\n\nWarning: Emails generated from comment subscriptions may contain commercial messages. Whilst every attempt has been taken to eliminate comment spam, the content should not be regarded as approved by the blog owner\n”, ‘subscribe-to-comments’);
$message .= __(“Keedz Ltd – Registered in England & Wales: 05906883\n”, ‘subscribe-to-comments’);
$message .= __(“Registered Address: 71 Bexley High St, Bexley, Kent DA5 1AA +48(62)7382438\n”, ‘subscribe-to-comments’);
[/PHP]

Conclusion

As stated this is all for entertainment purposes.

If you are concerned with emails being sent out from your blog, and how they are controlled, making these changes might take you anywhere from 1 to 2 hours. Once you get the hang of it, making the changes on multiple blogs will take just a few minutes, especially if you create a hacked version of the plugin that is suitable for all your web properties.

My own personal belief is it is worth dotting the legal “i”s, and crossing the “t”s if you are serious about your online business. I still have a few I need to handle.

Maybe one day the email mailing list services will offer a host of additional services for bloggers, including adding commenters to mailing lists and providing a safe, monitored email gateway.

Surely if you are a US company, doing business with the UK, you should have to comply with UK regulations.

I am busy working out how I can comply with SI (3429 of 2006) as a niche marketer who doesn’t necessarily want to flag all his niche websites for his competition to go have a look.
It is not so straight forward, especially if you want to also allow people with disabilities equal access to the information.

I can see a situation sometime in the future of a tit-for-tat exchange, or for non-compliance with SI (3429 of 2006) being used as a legal argument to leverage decisions in UK courts.

As an example, could non-compliance be used to encourage help with complaints with Paypal?

It affects you even more, and places you at a serious competitive disadvantage, if you are involved with Niche or Internet Marketing, in topics you don’t want your competitors knowing about, especially if click-fraud attacks are a danger.

2006 No. 3429
COMPANIES
The Companies (Registrar, Languages and Trading Disclosures)
Regulations 2006
Made – - – - 20th December 2006
Laid before Parliament 21st December 2006
Coming into force – - 1st January 2007

From SI (3429 of 2006)

Oops, It is Already In Force

This seems to have slipped in over the Christmas period and no one is talking about it, at least on the internet. I don’t have access to UK TV news stations regularly.

I found out about this on LinkedIn Answers – (login required to see original)

Here is the question from the LinkedIn Answers section plus the contact details of the person who posted it.

It was posted as a question on their new answers service by Mandy Webster a Legal Services Consultant and Contractor http://dp-smart.co.uk

Here is the content of the question

Are you aware of new required content for websites and email?

From 1 January 2007 a new SI (3429 of 2006) clarifies that websites and emails must carry full company registration details, that is full legal title, registered office address and registration number. So emails are now designated as ‘business letters’ for all you company secretaries!

The SI was sort of sneaked in towards the end of December and came in with very short notice but I have not seen much press coverage so far.

This seems to affect Ltd companies and up, so if you are a sole proprietor it might not affect you.

If you only have a few central websites, it isn’t going to be a major deal to comply. If you have 100s or 1000s it might represent a major problem.

It represents a problem if you are trying to keep your niche sites covert, to reduce competition.

There is probably a suitable way you can use my Disclosure Policy Plugin to link through to contact details. Remember this applies to emails. RSS feeds are sent via email subscriptions and if you use Feedburner, currently you can’t add an address to the emails sent.

In my opinion this is a bigger deal than the recent ftc problems.