This is part two of a three-part series looking at the laws relating to digital and social media marketing (The Law And Digital Marketing.). As mentioned previously the focus will be on the UK (elements of which will be similar to other European countries): if you are from another part of the world then use this as a guide for future consideration.
There eight elements I will be considering in the series, not all of which relate to specific statutory powers:
- Copyright, Designs and Patents Act 1988 (see part I).
- Data Protection Act 1998 (see part I).
- Privacy and Electronic Communications Regulations (EC Directive) Regulations 2003 (see part I).
- The Companies (Trading Disclosures) Regulations 2008.
- Social Media and the law.
- Electronic Communications Act 2000.
- Committees of Advertising Practice (CAP).
In part two I will be providing an overview to the Companies (Trading Disclosures) Regulations 2008 and how you might fall foul of the law, in relation to social media marketing.
The Companies (Trading Disclosures) Regulations 2008.
The Companies (Trading Disclosures) Regulations 2008 refers to the rules concerning the information a company needs to display at their registered office and other places of business which includes emails, websites and other electronic platforms. This article will focus mainly on the emails, websites and other electronic platforms.
You need to be aware that the regulations state that organisations must include their company’s registered name in all forms of business correspondence and documentation, whether in hard copy or electronic, including:
- Business letters, notices and other official publications.
- Business emails.
- Bills of exchange, promissory notes, endorsements and order forms.
- Cheques purporting to be signed by or on behalf of the company.
- Orders for money, goods or services purporting to be signed by or on behalf of the company.
- Bills of parcels, invoices and other demands for payment, receipts and letters of credit.
A company must include its registration details in business letters, order forms and websites. These include:
- Full registered name.
- The part of the United Kingdom in which the company is registered (i.e. England and Wales, or Wales, or Scotland, or Northern Ireland).
- The company’s registered number.
- The address of the company’s registered office.
- If a company is exempt from the requirement to use “limited” in its name, the fact that it is a limited company.
- If the company is a community interest company which is not a public company, the fact that it is a limited company.
- If it is an investment company as defined by section 833 of the Companies Act 2006, the fact that it is this type of company.
Many smaller companies (and some bigger ones) fail to comply with this requirement on their digital channels. In terms of websites and email campaigns the simplest way of conforming is to include the details in the in the footer. Your IT department can also set a standard message that goes out to all external parties for all day to day emails: even though the regulations does not require you to include the above details in all emails its inclusion provides you with a failsafe method that ensures you comply.
Your Social media channels provide you with a different dilemma. It is a grey area and strictly speaking these sites should also have the information stipulated in the Companies (Trading Disclosures) Regulations 2008, particularly if you are selling your wares through these platforms. There are very few companies that observe this obligation: I suggest that the required details (namely the registered name unless you are selling on the platform) are included in the “about you” sections of the social media sites.
Social Media and the law.
There are many ‘criminal’ pit falls you and your brands could face when providing digital and social media services. You and your staff must observe the law, I suggest all organisations should produce a robust set of procedures / policies. These procedures and policies should ensure that staff are aware that the posts and/or tweets they produce should not be threats of violence to the person or damage to property can be convicted under the following laws. You may think this is obvious, but I am aware of a number of posts that contravene the following acts:
- Offences Against the Person Act 1861, s 16 (threat to kill).
- Protection From Harassment Act 1997, s 4 (fear of violence).
- Malicious Communications Act 1988, s 1 (threat).
- Communications Act 2003, s 127 (of a menacing character).
The above can be used together with legislation related to racial, religious, disability, sexual orientation or transgender aggravation. You must also ensure that posts and/or tweets which continual target specific individuals can be convicted under the following laws:
- Protection from Harassment Act 1997, s 2 (harassment).
- Protection from Harassment Act 1997, s 2 (stalking).
- Protection from Harassment Act 1997, s 4 (fear of violence).
- Protection from Harassment Act 1997, s 4A (stalking involving fear of violence, serious alarm or distress).
Policies and procedures must also make staff aware that they must not breach any court orders, i.e., reporting restrictions, restraining orders or orders of anonymity (see Sexual Offences Amendment Act 1992, s 5 (identification of a victim of a sexual offence). They must not commit an act deemed to be contempt of court: “an act or omission calculated to interfere with the administration of justice” (see,Contempt of Court Act 1981. They should also not breach any conditions of bail. Any communications which are deemed to be grossly offensive, indecent, obscene or false could fall foul of the:
- Malicious Communications Act 1988, s 1 (electronic communications which are indecent or grossly offensive, convey a threat, provided false information that there is an intention to cause distress or anxiety to the victim).
- Communications Act 2003, s 127 (electronic communications which are grossly offensive or indecent, obscene or menacing, or false, for the purpose of causing annoyance, inconvenience or needless anxiety to another).
That ends this section on the Companies (Trading Disclosures) Regulations 2008 and “social media and the law”. My next blog will be looking at the Electronic Communications Act 2000, the Committees of Advertising Practice (CAP) and things to consider when filming.