Sales and marketing

Sales and marketing

This subtopic deals with the law and regulation governing sales and marketing activities generally, including direct marketing, prize and sales promotions, price claims and product placement.

Direct marketing

The Practice Note: Direct marketing analyses legal and commercial issues arising out of direct marketing activities. It covers the relevant provisions of Assimilated Regulation (EU) 2016/679, the UK General Data Protection Regulation (UK GDPR) and the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426 (PECR 2003) as they apply to direct marketing (including the soft opt in) such as live and automated telephone calls, unsolicited email marketing, text message marketing and the use of marketing lists. As well as the UK GDPR and PECR 2003, it considers other rules relevant to direct marketing including the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code), the Direct Marketing Association (DMA) Code and the International Chamber of Commerce’s Advertising and Marketing Communications Code (ICC Code).

For sample data protection consent wording, see Precedent: Consent to process personal data—sample wording.

Latest Commercial News

Commercial weekly highlights—21 November 2024

This week's edition of Commercial weekly highlights includes: analysis of the statutory guidance on the failure to prevent fraud offence which was introduced under the Economic Crime and Corporate Transparency Act 2023, commentary on Advertising Standard Agency's strategy to proactively pursue ‘greenwashing’ claims which explains the risks posed to businesses and what they can do to minimise their exposure, and news that the Department for Business and Trade has launched a consultation on implementing the new subscription contracts regime to be introduced under the Digital Markets, Competition and Consumers Act 2024.

ASA rulings—20 November 2024

The Advertising Standards Authority (ASA) has upheld a ruling on two paid-for Google ads for The Pure Gold Company, a gold and silver retail dealer. The ads were identified through the ASA's proactive monitoring as part of its wider work on unregulated investments. The ASA found the ads were misleading as they failed to illustrate the risks of gold investments. The ASA upheld the complaint.

Failure to prevent fraud—Statutory guidance

Corporate Crime analysis: Following a wait of nearly 12 months since the failure to prevent fraud (FTPF) offence was enacted, the government has now issued the statutory guidance on the procedures which companies are expected to implement for the purpose of preventing the relevant underlying fraudulent conduct by persons associated with them and, where such conduct occurs, providing a potential defence to the offence . Written by John Binns and Alexander Gorst at BCL Solicitors LLP.

Consumer contract—unfair terms (legal sector) (Glaser KC and Miller v Atay)

Commercial analysis: Barristers failed in their appeal from a finding that a term in their contract with a direct access client was unfair under the Consumer Rights Act 2015 (CRA 2015). A term providing that the full fee was payable where a hearing was adjourned for any reason, regardless of whether any work had been done or benefit was received by the client, was found to be unfair and unenforceable. Further, no quantum meruit claim (contractual or for unjust enrichment) was made out. As a result, no fee was payable. This case gives guidance as to the evaluative task undertaken by the court in assessing whether a consumer contract term is unfair; and is a salutary warning to legal professionals to ensure that their contract terms are carefully considered so that they do not unfairly balance the risks in favour of the lawyer. Written by Morwenna Macro, barrister at Five Paper.