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How do I promote my activities while complying with the law ?

How do I promote my activities while complying with the law ?

Online advertising or other forms of what is known as commercial communication will enable you to reach your audience directly, and make it easier for you to enter the market and build a competitive business.

Forms of online advertising include web banners, e-mail marketing, social networking, Search Engine Optimization (SEO), i.e. making sure that you are high on the list of answers that search engines show when someone is looking for a product or activity like yours, or site takeover, i.e. advertising yourself with a full-page overlay when someone else’s site opens.

If you make use of commercial communication, you need to be aware of certain requirements.

Provide transparent Information

If you decide to display commercial communication online (including promotional offers, discounts, premiums, promotional competitions or games), you must clearly indicate:

•    The commercial communication designed to promote (directly or indirectly) your goods, services or image;
•    The natural or legal person on whose behalf the commercial communication is provided;
•    The promotional offer you are advertising (e.g. any discount, premium gifts, competitions, games);
•    Any qualifying conditions, e.g. who is or is not eligible to take part in such offers, promotion and games, and on what terms.

If you send your customers unsolicited commercial communication by e-mail (i.e. if you send them promotional e-mails without them having asked for them), then that must be made clear. For instance, include the word ‘advertisement’ in the header of the e-mail message, so that your customer knows what it is without even opening it.

No direct marketing electronic mail can legally be sent without the express consent of your customers (e.g. they have ticked a box agreeing to receive unsolicited e-mails), unless there is a pre-existing business or commercial relationship.

Avoid unfair commercial practices

Commercial communication (including advertising and marketing) is covered by rules on unfair commercial practices. There is a single set of common rules across the EU on what is an unfair commercial practice so the playing field is level for everyone. A commercial practice is any act, omission, course of conduct or representation, or commercial communication directly connected with the promotion, sale or supply of your product to your customers.

The rules on unfair commercial practices are for consumer protection. They ensure that consumers are not exposed to misleading information (either as a result of misleading actions or omissions on your part) or to aggressive commercial practices.

For example, you should not send customers a product they did not order; you may not offer a product for sale on attractive terms in order to capture their attention (i.e. as ‘bait’), and then say the product is unavailable and offer a similar but more expensive item; you must not mislead your customers about the price and how it is calculated, etc.

Consult the Black List of 31 commercial practices, which are in all circumstances considered unfair in all Member States. Learn from the practical information on Your Europe. This is where your customers will be able to find out how to check if they have fallen victim to unfair commercial practices, and how to get help.

Find out more about how your country has translated the common EU rules on unfair commercial practices into the law of your country and any other EU country where you trade. Training for SMEs on consumer law, adapted to the situation in each Member State, is available on ConsumerLawReady.eu.

The Commission has also developed a new database which gathers the national laws, jurisprudence, administrative decisions and reference to related legal literature and it will be integrated into the e-Justice Portal soon.

Make sure that any claim you make is clear, accurate and substantiated so that your customers can make informed and meaningful choices.

Be Aware of Consumer Protections

If you offer your products (goods, services, digital content) to a consumer in any EU country, then you have to comply with EU consumer law. The generally applied definition of consumer is “any natural person who buys a product from you that he/she will not use for professional, but only for personal purposes”.

Note that if your business sells to traders for professional purposes, these laws will not apply to you.

A “dual purpose contract” is defined by a situation in which a good or a service has a double purpose; it serves both trader for professional purposes and personal uses (consumers): for example, you might sell somebody a piece of equipment like a laptop that will be used for work but also for personal purposes. In such cases, in order to determine whether consumer law applies, one needs to check the prevailing purpose of that contract: if the prevailing purpose is the professional use, then consumer law will not apply.

Remember, you cannot exclude or limit the application of consumer law by agreement. For example, it is illegal to write contract terms stating your intention to exclude or limit the application of consumer law. Different aspects of consumer law are dealt with in this guide: if your business is selling to consumers, you must abide by these laws.

Sources of information

Transparency on commercial communication

•    E-Commerce Directive, Article 6-7
•    European Commission (2012), Online services, including e-commerce, in the Single market, p 13-14, available at:  http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011DC0942&from=EN
•    European Commission (2006), Protecting privacy and fighting spam, available at http://ec.europa.eu/information_society/doc/factsheets/024-privacy-and-spam-en.pdf

Unfair commercial practices

•    Unfair Commercial Practices Directive
•    European Commission (2011), Online services, including e-commerce, in the Single market, p 64-65, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011DC0942&from=EN
•    Unfair Commercial Practice

Consumers protection

•    Directive 2011/83/EU on Consumers rights