Online Selling & E-Marketing Regulations

Selling Online and Electronic Marketing Regulations

Don't be put off by the apparently complicated set of acts and regulation that apply to online selling and the sending of promotional emails, texts etc. Online selling and e-marketing are essential to your success as a business. We've summarised your obligations in the table below and there is plenty of further guidance. As usual, the requirements are fair and common sense, designed to protect the consumer and give clarity to traders. You just need to know what they are and how to follow them.

Customer protection

When you sell in a shop, a customer has the chance to examine the goods before they buy them. Even so, consumers have statutory rights which protect them after they've taken the goods home: if the goods are faulty or sub-standard they can request a refund, a replacement or repair. When a customer buys electronically or by mail order, they cannot see the goods and try them out first. So in addition to their usual statutory rights, they are given extra protection. Broadly, the extra protection is in order:

to make sure customers don't accidentally enter into a contract to buy without realising it
to make sure they understand the contract they are getting into - the terms and conditions attached to what they are buying
to make sure they can cancel their order or return their goods if, once they see and examine their purchases, they decide they don't want them

These rights are in addition to their usual consumer rights, so they can still return goods that are faulty or sub-standard.

Acts and regulations

All these consumer rights, and your corresponding obligations as a trader, are set out in the following acts and regulations. We've summarised your obligations in the table that follows, but you can read the law by clicking on the titles below, or follow the further guidance at the end for more information from the various government departments.

Consumer Protection (Distance Selling) Regulations 2002
These regulations govern the sale of goods when the customer is remote from the products and services being offered. Selling online is distance selling. So is selling by phone, fax, mail order and text messaging.
The Electronic Commerce (EC Directive) Regulations 2002
These are the regulations that control advertising and selling using electronic means, and also govern sending electronic marketing communications to customers.
Trade Descriptions Act 1968
This act requires that, as a trader, you are honest and accurate about the descriptions and images you use to promote and sell your goods and services.
Sale of Goods Act 1979
This act requires traders to sell only goods that match the descriptions you give, that are of satisfactory quality and that are fit for purpose. It also sets out remedies available to consumers if the goods do not meet these requirements.
Supply of Goods and Services Act 1982
This act requires a supplier of a service acting in the course of a business to carry out that service with reasonable care and skill and, unless agreed otherwise, within a reasonable time and for a reasonable charge.
Control of Misleading Advertisements Regulations 1988
These regulations prevent traders from using misleading advertisements, and they also set out requirements for advertisements that make comparisons with competitors.
The Consumer Protection Act 1987
Amongst other things this act covers product safety and product liability and prohibits the use of misleading price indications.
Unfair Terms in Consumer Contract Regulations 1999
These regulations require that the terms you use in your contracts and terms and conditions are fair and balanced.

If you provide credit to customers you will also be subject to the Consumer Credit Act 1974 which regulates all consumer credit activities. Note that this Act is not covered in this topic or the associated factsheet, but there are details of further guidance below.

Your obligations for selling and marketing electronically

In respect of selling and marketing electronically, each of the acts and sets of regulations place different, sometimes overlapping, obligations on you. We've brought them all together and summarised them in the table below. The paragraphs below the table expand on each point.

Important Note: There are exemptions to some of these obligations that are relevant to tourism businesses. Firms which deliver food, drink or other perishables, like fresh flowers, to consumers, and many tourist products and services which are time-bound - ie where the order is for a particular date or period, like accommodation, concert tickets, event tickets etc - are exempt from the following regulations:

the cancellation regulations including the specified time periods
the associated refund and return rules
the obligation to deliver or start the service within 30 days
the requirements to provide this information before the order and in a written format after the sale - though this is still a very good idea and is required under the Package Travel Regulations if you are selling/promoting a package

You should still have clear policies on cancellation, refunds and, where applicable, returns, in order to be able to have clear, enforceable contracts between you and the customer, but you can create your own policies rather than having the ones dictated by the distance selling or e-commerce regulations. However, the Unfair Terms in Consumer Contract Regulations 1999 requires you to have fair and equitable policies, see our Terms and Conditions page for more information on this.

Tourist packages are also exempt from these obligations, but only because these elements are governed by the Package Travel, Package Holidays and Package Tours Regulations 1992, see our Package Travel Regulations page, for more information on this.

Obligation checklist


Providing Information	You must display the following information when advertising goods and services for sale by electronic means.
I1. Contact details	Full business name Geographical address Phone and/or email so you can be contacted quickly
I2. VAT	VAT registration number
I3. Limited companies	Company registration number Registered company address
I4. Trade organisations	Details of trade organisations you belong to Links to any publicly viewable registers
I5. Professional bodies	Details of any internationally recognised professional body Details of any professional title you hold Details of the member state in which those titles were granted A reference to the professional rules and how consumers may access them
I6. Authorising bodies	Details of any bodies that authorise your activities
I7. Goods and services	Full description of goods and services Details of what is not included if needed for clarity No false, misleading or misrepresenting statements
I8. Images	Clear, accurate pictures No misleading images
I9. Prices	If you refer to prices: Full prices Include VAT, packaging, delivery etc Include calculations or information about additional costs that cannot be fully calculated Mention optional costs and extras, for clarity
I10. Payment	Payment schedule: when and how, plus any consequences Payment methods Payment surcharges (eg credit card surcharges)
I11. Delivery	Delivery details: how, when, who by, requires signature etc
I12. Cancellation	Cancellation rights Cancellation period Any return delivery charges (only for unwanted goods, not faulty or substitute)
I13. Terms and conditions	Terms and conditions detailing customer rights and all details about delivery, cancellations, refunds and returns


Selling	When a customer can actually place a booking or make an order by electronic means you must also do ALL of the following:
S1. Transaction steps	Provide a clear and obvious description of the technical steps required to place the order, and at what point the customer commits themselves to the purchase
S2. Corrections	Provide clear instructions about the technical steps to review and correct errors in the placing of an order BEFORE the order is placed
S3. Terms and conditions and specific information	Provide your terms and conditions in such a way that they can be stored and reproduced - just on your website is not enough unless they can be easily saved and then printed Provide the customer with the following information (if not included in your terms and conditions) BEFORE they place the order: Your business name and contact details A description of the main characteristics of the goods and services being bought The full price, inclusive of taxes Details of the delivery costs Details of how payments can be made The arrangements for delivery or performance of the service Information about the customers rights to cancel and how they do so Whether goods must be returned in the event of cancellation and if so who will have to pay for the return of any goods, you or the customer NB: Businesses with exempt products and services are not required to have the cancellation, refund and returns policies directed in the explanatory notes. Note that if you are selling a package you must check the Package Travel Regulations, for the information you must supply to customers before they book.
S4. Languages	Tell the customer which languages the contract is available in
S5. Receipt	Acknowledge receipt of the order quickly and by electronic means
S6. Filing	Tell the customer how the order will be filed and whether it will be accessible for their review
S7. Written notification	As soon as possible after the sale, provide the customer with written notification in a durable form (email, post or fax) regarding: their rights to cancel and how to cancel refund and return policy your geographical location and contact details, and if different the geographical address and contact details of the business they should direct any complaints to any guarantees and after sales service NB: Businesses with exempt products and services are not required to do this in this format, though it is still a good business practice. Note that if you are selling a package there are similar obligations under the Package Travel Regulations, which you must comply with.


C1. Cancellation	You must make your cancellation policy (see explanatory note) available to customers before they place an order. (This can be part of your terms and conditions.) NB: Businesses with exempt products and services are not required to have the cancellation policy directed in the explanatory note. Note that if you are selling a package you must check the Package Travel Regulations, for the cancellation requirements.
C2. Refunds	You must make your refund policy (see explanatory note) available to customers NB: Businesses with exempt products and services are not required to have the refund policy directed in the explanatory note. Note that if you are selling a package you must check the Package Travel Regulations, for the refund requirements.
C3. Returns	You must make your returns policy (see explanatory note) available to a customer before they place an order. (This can be part of your terms and conditions). NB: Businesses with exempt products and services are not required to have the returns policy directed in the explanatory note.


Marketing communications	*When you send unsolicited, promotional emails, texts, pictures, videos etc to customers you must:** *See explanatory note on mobile phone messages
M1. Have permission	ONLY send communications to customers whose details you have permission to send to
M2. Identify yourself	Clearly identify the name and full contact details of the business offering the products or promotion (not the agency who sends the email)
M3. Identify the communication as advertising	Make it obvious that the communication is a promotional one, not a personal one, and that it is unsolicited, not a response to a request made by them
M4. Identify the offer, discount etc and the terms	Clearly identify the offer, discount, premium service etc and clearly set out the terms and conditions and any qualifying criteria
M5. Identify a competition, game etc and the terms	Clearly identify the competition, game etc and clearly lay out the terms and conditions and any qualifying criteria
M6. Opt out/unsubscribe	Provide an easy, free of charge method for customers to opt-out of or unsubscribe from receiving marketing information or other unsolicited emails in the future

Explanatory Notes

Providing Information
When you have a business website you must make sure that you display at least the following information. All businesses are required to do this. If you are advertising or selling packages there will be additional information you must display, check the Travel Package Regulations page for more information on this:


I1. Contact details	You must provide your full business name, geographical address and your contact details, including an email address, so that you can be contacted urgently if required.
I2. VAT	If your online activities are subject to VAT you must include your VAT number.
I3. Limited companies	If you are a limited company, you must include your company registration number and registered address.
I4. Trade organisations	If you belong to any trade organisations or associations that have a publicly viewable register, you must publish this fact and provide any information that helps you to be found on the register, eg a registration number.
I5. Professional bodies	If you belong to an internationally recognised professional body, you must publish the following information: the name of the body, the professional titles you hold, the country in which you were awarded them, a summary of the professional rules and how an end user can find out more about them.
I6. Authorising bodies	If your activities are subject to any authorising bodies (like the Adventure Activities Licensing Association) you must publish this fact and the details of the authorising body, eg a link to their website.
I7. Goods and services	If you describe your goods and services on your website (and if it is possible to place an order electronically you must describe them) you must provide full and accurate descriptions, including any details of what is not included, if this is needed for clarity. You must not make any false, misleading or misrepresenting statements. (Eg 'It is 10 minutes to the beach', when it's a 10 mile journey.)
I8. Images	If you use images, pictures, photos, video or other graphical information at your website they must be clear and accurate and you must not use any images that are misleading or inaccurate, or that misrepresent your goods or services. (Eg Don't show pictures of families in a pool if you don't have a pool and it could be inferred from the picture that you do.)
I9. Prices	If you refer to prices on your website (and if is possible to place an order electronically you must publish your prices) then you must show full prices, inclusive of any VAT, taxes, packaging, delivery etc. If you cannot show the full price then you must show how your prices are calculated and you must include any additional costs that may be applied. You should also, for the sake of clarity, detail any optional costs the customer may incur.
I10. Payment	You must detail how payment may be made (ie the payment methods possible), when it must be made and how. If a deposit and balance is to be paid, you must state the amounts and when they are due. If different payment methods incur different charges (eg a surcharge for payment by credit card) you must detail these.
I11. Delivery	You must detail when and how any goods will be delivered (or, if it applies, services obtained). Goods should be delivered as soon as possible and must be delivered (or services begun) within 30 days of ordering - unless agreed otherwise before the order is placed. You cannot make customers pay for insurance on goods - the goods belong to you until the customer accepts them, it is up to you to insure the goods if you wish. You are also responsible for any goods lost in transit. You must either resend goods or provide a full refund, including any delivery charges. NB: Businesses with exempt products and services are not obliged to deliver or start the service within 30 days, but you must still provide the information as to when and how the delivery will take place and when and how the service will be taken up.
I12. Cancellation	Every customer has the right to cancel an order. You must make your cancellation policy clear and it must at least comply with the requirements. See the full explanatory note below.

Selling

If you actually sell using electronic means, meaning a customer can place an order as opposed to just looking at the information about your products and services, then additional regulations apply. All the following regulations except S3 apply to all businesses:


S1. Transaction steps	You must make it obvious to the customer what the steps are that must be taken in order to complete a transaction. You must make it crystal clear at which point the customer is actually committing themselves to the purchase.
S2. Corrections	You must provide them with an opportunity to review all the details of their order and then make it possible for them to go back and correct their order BEFORE they place it. You should spell these steps out, eg "Here is a summary of your order/booking. Please check it carefully and use the back button to make any changes. Once you are content that all the details are correct, please press confirm and your order will be placed."
S3. Terms and conditions and specific information	As above, you must provide these BEFORE the order is placed. They must include the following: Your business name and contact details A description of the main characteristics of the goods and services being bought The full price, inclusive of taxes Details of the delivery costs Details of how payments can be made The arrangements for delivery or performance of the service Information about the customers rights to cancel and how they do so Who will have to pay for the return of any goods, you or the customer (see Returns) You should provide them in a way that can be stored and reproduced. If you don't, you must send them in a written, durable form (post, fax, email) as soon as possible after the sale. Since your terms and conditions form part of your contract, the customer must have some way of referring to them. NB: Businesses providing exempt products and services are not required to provide this information in this format. However, it is a very good business practice, avoids confusion and makes your terms and conditions enforceable. Note that if you are selling or promoting a package, then you must provide specific information under the Travel Packaging Regulations.
S4. Languages	By law, you must tell the customer which languages the contract can be concluded in.
S5. Receipt	When an order is placed, you must quickly acknowledge receipt of the order by electronic means, eg email. This is a requirement of the Electronic Commerce (EC Directive) Regulations 2002.
S6. Filing	You must tell the customer how the order will be filed and whether it will be accessible for their review, eg "Once you have placed an order, you can access it online by...." Or "We file your order offline, please contact us with any queries."
S7. Written information	If you haven't already provided this information in a durable form at the time of placing the order (eg made it available at your site in a way that can be saved and later reproduced) then you must provide this information in writing, in a durable form (ie post, fax or email) AFTER the order has been placed, as soon as possible. The information you must include is: The customers rights to cancel and how they go about cancelling Refund and return information Your geographical location and the address and contact details, if different, of the place they should direct complaints to Any guarantees and after sales service Note: You don't have to send additional written confirmation if it was clearly made available to your customer before the sale in a form that could be saved and reproduced, but it is still a very good idea to do this. Check any dealings you've had with the big online retailers, they all provide this extra information with the receipt they send. NB: Businesses providing exempt products and services are not required to provide this information in this format. However, it is very good business practice, avoids confusion and makes your terms and conditions enforceable. Note that if you are selling or promoting a package, then you must provide specific information under the Travel Packaging Regulations.

C1. Cancellation
All customers have the right to cancel an order, and, provided they cancel within the cancellation period they don't need a reason to cancel. This right begins the moment the order is placed and persists until the end of the cancellation period - how long this is depends on what you are selling and whether you supply the written terms and conditions and specific information at the time of the order or shortly afterwards (certainly by delivery or take up of the service):

For services: 7 working days (not including weekends and bank holidays) after the order was placed (unless, by mutual and prior agreement, the services have started within 7 days, in which case the cancellation period stops as soon as the service starts).
This is provided you supplied the written terms and conditions and the specific information outlined above (if this aspect of the regulations applies to you) at the time of order or very soon afterwards.
For goods: 7 working days after the goods arrive (starting the day after they arrive). This is provided you supplied the written terms and conditions and the specific information outlined above (if this aspect of the regulations applies to you) at the time of order or very soon afterwards.

If you didn't provide the written terms and conditions at the time of sale or at the time of delivery or taking up the service, the cancellation period last until 7 working days after you have provided written terms and conditions, even if the goods have been used and the services started.

If you never supply written terms and conditions (which puts you in breach of contract) the cancellation period lasts for three months plus seven working days, even if services have already begun.

A customer must cancel in writing (post, fax, email) unless you say otherwise in your terms and conditions. The day of posting counts as the day of notification.

Note: Many tourism products and services which are time bound, eg accommodation, tickets, transport etc are exempt from this part of the regulations and you are free to create your own cancellation policy. However, unless you wish to have an indefinite cancellation period with no charges, you should have a policy and it must be fair, under the Unfair Terms in Consumer Contract Regulations 1999. (See Terms and Conditions from the Toolkit.)

C2. Refunds
All customers are entitled to a full refund, including any fees paid for delivery, packaging etc, if they cancel within the cancellation period (whether that is the cancellation period defined by the Distance Selling Regulations or the one set (fairly) by you). All customers are entitled to a full refund for faulty goods or for ones sent by you as a substitution for the actual goods a customer requested. A refund includes any delivery charges paid. You must pay the refund as soon as possible and absolutely within 30 days of cancellation - even if the customer has not yet returned the goods to you.

In the case of services, if a customer has cancelled within their cancellation period, they are entitled to a full refund. If the service has already started and they have incurred charges, but they are still within their cancellation period (because, for example, you failed to provide written notification of the specific information) they are entitled to cancel and claim a full refund even if they have incurred service charges.

For most tourism businesses, this won't apply. Because you aren't obliged to provide written notification of the specific information (although you should provide your terms and conditions, or they won't form part of your contract) the customer's right to cancel, and to any refund, is set by your terms and conditions and ends once the services start.

In all cases, however, the customer is entitled to a refund if the goods or services you supplied were faulty, or you supplied a substitute that was of inferior quality and was not accepted by the customer.

You cannot wait for a customer to return goods before you give their refund. You must provide refunds as soon as possible and certainly within 30 days even if the customer hasn't returned the goods.

C3. Returns
You must make your returns policy available to a customer before they place an order. You can ask them to pay for the cost of returning the goods, but only if you make this clear before they buy the goods. You can only ask them to pay for the direct cost of returning, not for anything else including administration or restocking. You cannot make a customer pay to return goods that are faulty, or that are substitutes you sent because you did not have what they requested available, under any circumstances.

Customers are obliged, under the regulations, to keep your goods in reasonable condition. But they are allowed to open packaging and do whatever they need to properly examine the goods and, in order to determine if they are the items they want and expect.

You cannot wait for a customer to return goods before you give their refund. If your terms and conditions specified they pay for the return of goods and they send them back to you at your cost, you can send them an invoice to recover this cost. If they don't return the goods, you can invoice them for the cost of reclaiming the goods.

Electronic marketing communications
If you want to communicate with your customers electronically - a very good idea - then you are subject to certain regulations. Electronically means online, by email, by text, video or picture message, through interactive TV or through any other electronic means.

When you send unsolicited communications (ie, not in response to a direct request by a customer) or promotional emails, texts, pictures, videos etc to customers you must:


M1. Have permission	You can ONLY send electronic, unsolicited communications etc to customers whose details you have permission to send to. You are allowed to send communications to customers whose details you have obtained in the course of your business - through bookings, sales, enquiries, competitions etc - but ONLY if you gave them the option NOT to receive future information at the time that you collected their details. If you don't have this permission, don't send an unsolicited electronic communication - it is against the law.
M2. Identify yourself	You must clearly identify the name and contact details of your business (not the agency who sends the communication). You cannot send communications that are unclear about who they are coming from, or pretend to be from someone else.
M3. Identify the communication as advertising	You must make it obvious, in the communication, that this is a promotional email, not a direct response to an enquiry or request.
M4. Identify the offer, discount etc and the terms	You must clearly identify what you are promoting, and clearly identify any offer, discount, premium service etc. You must also set out any terms and conditions that apply and any qualifying criteria. The offer must be unambiguous and, if you refer to pricing, the pricing and attendant criteria must be clear.
M5. Identify a competition, game etc and the terms	If your promotional communication contains an invitation to join in with a competition or game, then this must come across clearly. You must also detail the full terms and conditions of the game and any qualifying criteria.
M6. Opt out/unsubscribe	You MUST provide an easy, free of charge method for customers to opt-out of or unsubscribe from receiving marketing information or other unsolicited emails in the future. This could be clicking on a link to go to your (or someone else's) website where they untick a box, or it could be sending an email with UNSUBSCRIBE in the subject bar. If you receive such a request you must make it impossible for that customer to receive marketing communications of any kind in the future.

Note: the regulations accept that a mobile phone text message is too short to provide all the information required. They accept that it is sufficient to refer the customer to your website for full details. However you must still:

Identify yourself clearly
Identify the message as a promotional one
Make the offer clear and state that terms and conditions apply
Provide an easy opt out
Clearly refer users to your website for full details, terms, conditions and qualifying criteria

Exemptions

As described above, some products and services are exempt from some of the regulations. The regulations regarding cancellation rights and the specified cancellation periods; the associated refund and returns regulations; the requirement to deliver or begin the service within 30 days, and the requirements to provide this information before and after the sale do not apply to the following products and services:

time-bound tourist services like accommodation, event tickets, concert tickets, travel, entry to sporting events etc
goods made to the customer's specification
perishable goods (flowers, fresh food)
CDs, DVDs, and tapes with software, audio or video if unsealed
newspapers and magazines
betting, gaming and lotteries

However, if you fail to make your terms and conditions regarding cancellation, refunds, returns and product or service delivery plain both before and after the sale, you will find it very hard to enforce these terms as part of your contract with the customer. You should have clear and fair policies and follow the requirements as guidelines of good practice.

Note also, if you are selling a package then you are required to provide specific information in your advertising, before a sale and after a sale by the Travel Packaging Regulations.

Failure to comply

If you don't comply with the regulations consumers are within their rights to:

cancel their order
seek a court order against you
sue you if they can demonstrate that they have suffered losses as a result of your non-compliance

If you are conducting online business in a way that Trading Standards thinks 'harms the collective interest of consumers' you can be ordered to stop online trading and advertising and even to publish corrective statements.

The regulations can be enforced by any body with the powers, given by law, to impose sanctions for failure to observe or comply with UK law. This would include, for example, Trading Standards, the Office of Fair Trading and ICSTIS (the body responsible for overseeing premium rate telephone lines).

Further reference and guidance

The Electronic Commerce (EC Directive) Regulations 2002
These are the regulations in full from the Office of Public Sector Information www.opsi.gov.uk.

The Privacy and Electronic Communications (EC Directive) 2003
These are the regulations which govern consumers' and marketeers' rights regarding electronic communications.

BERR official guidance on the Electronic Commerce (EC Directive) Regulations
This is very readable guidance on the E-commerce regulations.

Guide for Marketeers on the Privacy and Electronic Communications (EC Directive 2003)
Another readable and useful guide, this one is from the Information Commissioners Office and covers sending email, texts etc to consumers and to other businesses. It also references many other acts and regulations that have an impact on electronic marketing.

Guide to Online Retailers
This recently produced guide is from the Office of Fair Trading.

How to Protect Yourself Online
This is another guide from the Office of Fair Trading and gives advice to businesses on payment processes for online payments.

Short Guide to Distance Selling
This is a useful guide to the Distance Selling Regulations (DSRs) but, by its nature, doesn't cover any of the other legislation that also applies to online selling.

Guide to Distance Selling
This is the fuller guide from the Office of Fair Trading.

The Office of Fair Trading Research into Online Shopping
This huge report - more than 170 pages - is a very recent and interesting study into the attitudes of online shoppers and retailers. The summary is very readable and relevant to all businesses.

BERR's Guidance to the Unfair Terms in Contracts With Consumers Regulations
This page leads to the Department of Business Enterprise and Regulatory Reform's pages on the Unfair Terms in Contracts with Consumers Regulations. From this page you can access Quick Facts about the regulations and fuller guidance.