Product descriptions and photographs are among the more important aspects of a typical online sales strategy. Descriptions should be clear, informative and fresh; photos should be properly exposed and focused, and large enough enough to show off the products to best effect. But also, descriptions and photos must be legal.
This article – part 3 in a series – looks at the legal issues affecting product descriptions and photos. If you haven’t read the previous articles in the series, you should start here:
There are two main areas of law that affect product descriptions and photos: intellectual property law and marketing law.
Intellectual property law
Anything but the most basic product description will be protected by copyright as a literary work, and almost every product photo will be protected as an artistic work.
There are two implications :
- you must not use others’ descriptions or photos without their consent; and
- if someone else uses your descriptions and photos without your consent, you may be able to bring proceedings against them for copyright infringement.
For the sake of evidential certainty, consents should be in writing.
If you instruct an agency or freelance to produce descriptions or photos, the contract should specify the basis upon which the works will be used by you: whether under a non-exclusive licence, an exclusive licence or an assignment of copyright. In any case, where you don’t produce descriptions and photos yourself, you should ensure that any moral rights accruing to the author or photographer have been adequately waived.
If you’re planning on re-hashing someone else’s product descriptions, you need to ensure that the end result doesn’t take a substantial part of the original – if it does, you’re likely infringing their copyright. Just changing a few words won’t an original description make.
In respect of some products, there may be a question over whether a photograph infringes copyright in the product itself. For a detailed discussion of this slightly technical question, see:
Can you use someone else’s trade marks in your product descriptions? Can you photograph products that display trade marks? Yes, if you do it right.
Although, in general, the use of someone else’s trade marks in relation to products may infringe, there is a special exception in Section 10(6) of the Trade Marks Act 1994:
Nothing in the preceding provisions of this section shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor or a licensee. But any such use otherwise than in accordance with honest practices in industrial or commercial matters shall be treated as infringing the registered trade mark if the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark.
This section also allows for – and according to Kerly’s Law of Trade Marks and Trade Names was introduced for – the purpose of enabling comparative advertising.
In any event, the section requires that you treat others’ trade marks with respect.
Marketing law: legal rules
Sale of Goods Act 1979
Perhaps not strictly part of marketing law, I’ll start with Section 13(1) of the Sale of Goods Act 1979. It says:
Where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description.
As regards England and Wales and Northern Ireland, this implied terms is a condition of the contract.
Section 6 of the Unfair Contract Terms Act means that it’s often impossible to exclude the application of Section 13 of the Sale of Goods Act:
(2) As against a person dealing as consumer, liability for breach of the obligations arising from … section 13 … cannot be excluded or restricted by reference to any contract term.
(3) As against a person dealing otherwise than as consumer, the liability specified in subsection (2) above can be excluded or restricted by reference to a contract term, but only in so far as the term satisfies the requirement of reasonableness.
What this means is that your descriptions must be accurate: the products must correspond. If they’re don’t, then you will be in breach of contract every time you sell the described product to a consumer. Even where you’re selling to businesses, you will be in breach of contract unless you have reasonably excluded the application of Section 13(1).
The Consumer Protection from Unfair Trading Regulations 2008
If you are selling to consumers, The Consumer Protection from Unfair Trading Regulations 2008 also affect your product descriptions and images.
Regulation 3 prohibits “unfair commercial practices”. These are defined, first, as practices that both contravene the “requirements of professional diligence” and materially distort or are likely to materially distort the economic behaviour of the average consumer with regard to the product.
Further, a “misleading action” or “misleading omission” will constitute an unfair practice. A list of very specifically described unfair practices are also included in the first schedule to the Regulations.
The definitions of “misleading actions” and “misleading omissions” are rather long-winded, and I won’t reproduce them here. Suffice to say that a product description need not actually be untruthful to constitute a “misleading action”: a description that is liable to deceive will do. Similarly, a description could fall within the category of “misleading omissions” if it were unclear, unintelligible, ambiguous or untimely, of if it simply failed to identify its commercial intent. See Regulation 5 and Regulation 6 for details.
An online product description could also, in principle, fall within many of the specific examples of unfair practices set out in the schedule.
The Business Protection from Misleading Marketing Regulations 2008
These Regulations prohibit advertising which is misleading.
Regulation 2(1) contains the definition of advertising:
“advertising” means any form of representation which is made in connection with a trade, business, craft or profession in order to promote the supply or transfer of a product and “advertiser” shall be construed accordingly;
This seems to cover product descriptions and product photographs comfortably.
Regulation 3(2) clarifies the meaning of misleading:
Advertising is misleading which – (a) in any way, including its presentation, deceives or is likely to deceive the traders to whom it is addressed or whom it reaches; and by reason of its deceptive nature, is likely to affect their economic behaviour; or (b) for those reasons, injures or is likely to injure a competitor.
So, these Regulations only apply to advertising addressed to or that otherwise reaches “traders”.
The Regulations specify various factors which must be taken into account when assessing whether advertising is misleading. These include product characteristics, price or price calculation, the conditions upon which product is supplied, and the “nature, attributes and rights” of the advertiser.
Product safety legislation may require the display of warnings about the product at the point of sale. These rules are product-specific, with the necessary warnings depending upon both the type of product in question and the risks associated with the particular product. See part 2 of this guide for more details.
Marketing law: CAP Code
Since 1 March 2011, the CAP Code has applied not only to paid advertising on websites, but also to websites themselves insofar as they constitute marketing vehicles. Product descriptions and photographs fall within the ambit of the rules.
The code comprises a detailed rule book. The general principles set out in the code are as follows:
1.1 Marketing communications should be legal, decent, honest and truthful.
1.2 Marketing communications must reflect the spirit, not merely the letter, of the Code.
1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society.
1.4 Marketers must comply with all general rules and with relevant sector-specific rules.
1.5 No marketing communication should bring advertising into disrepute.
1.6 Marketing communications must respect the principles of fair competition generally accepted in business.
1.7 Any unreasonable delay in responding to the ASA’s enquiries will normally be considered a breach of the Code.
1.7.1 The full name and geographical business address of the marketer must be given to the ASA or CAP without delay if requested.
1.8 Marketing communications must comply with the Code. Primary responsibility for observing the Code falls on marketers. Others involved in preparing or publishing marketing communications, such as agencies, publishers and other service suppliers, also accept an obligation to abide by the Code.
1.9 Marketers should deal fairly with consumers.
1.10 Marketers have primary responsibility for ensuring that their marketing communications are legal. Marketing communications should comply with the law and should not incite anyone to break it.
1.10.1 Marketers must not state or imply that a product can legally be sold if it cannot.
Everyone has locus standi to complain about breaches of the CAP Code. The ASA adjudicates such complaints, and publishes decisions each week regarding such complaints.
As noted above, the Code does not have the force of law. Marketers are told the outcome of the ASA Council’s rulings and may be asked to withdraw or amend their marketing communications. Perhaps the main penalty for breaches of the code is bad publicity. The ASA can also order that an advertiser must have all its adverts vetted before publication.
Marketing law: summary
So, there’s a great deal of regulation surrounding product descriptions and photographs, but for the most part it boils down to this: product descriptions and photographs should be honest, accurate, non-misleading and accompanied by appropriate notices and warnings.
I was planning on writing a four-part guide to the legal issues associated with selling online, with the last part being published yestedary. It looks increasingly likely to be an eight-part guide, with the last part being published perhaps towards the end of this month.