Ian Skuse is a partner and head of Piper Smith Watton LLP’s Aviation, Travel & Tourism department. Piper Smith Watton LLP (www.pswlaw.co.uk) is a business and private client law firm based in Westminster
BE CLEAR ON TRANSPARENCY
How are the latest developments in e-commerce and marketing regulations affecting those buying and selling travel?
MUCH BUSINESS AND MARKETING is now online, and this area has become a focus of European regulation covering online activity and the use of social media such as Facebook and Twitter. Key legislation includes the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Advertising Codes produced by the Advertising Standards Authority (ASA), and other relevant law. The capture of personal data
when transacting business, or the use of a database and cookies are the subject of strict rules. Any trader transacting e-commerce or e-marketing will need links in their website to a privacy policy, and terms and conditions website use. For cookies (particularly those
that record a user’s visit to your website, the pages visited and the links followed) the Information Commissioner’s Office produced guidance in May 2012, following the UK’s introduction of the EC Directive a year ago. This recommends a “cookie audit”, a requirement to provide users with clear information about the purposes for which the cookie is stored and accessed, and steps must be taken to ensure that the user has given consent. E-marketing and commerce providers should consider setting up a separate web page with a link where information about cookies can be reviewed by the user.
MARKETING The rules relating to collecting customer data require you to provide the details of your organisation and what you are likely to use the information for. In particular, it is recommended that consent is
obtained from the customer to use their personal data, including implied consent by use of words such as “by submitting your details you agree to the conditions of our privacy policy”. There are strict rules about sending unsolicited electronic marketing (aka ‘spam’) to both individuals and companies who may have signed to an opt-out from receiving spam. The general rule is that you can only send
After enforcement action was taken by the OFT, 12 airlines agreed to include debit card charges in headline prices
out unsolicited electronic marketing if the individual who is receiving the message has given his consent, known as ‘opt-in consent’. The only exception to this is what is known as the ‘soft opt-in’, which applies where the contact details of the recipient have been obtained in the course of sales or negotiations for sales of products or services, the unsolicited email relates to the direct marketing of similar goods and services, the recipient was offered an opt-out when the data was originally collected, and each unsolicited email includes a right to opt-out from future direct marketing by email.
ADVERTISING There are yet further hurdles to overcome. The ASA, through its Advertising Codes, produces booklets specifically relating to marketing in the travel sector and gives specific advice about problem areas. These include tickets described as “free” which are dependent on the purchase of something else, and that
headline prices should include all non-optional charges. And where advertisements include a “from” fare for a ticket, then a minimum of 10 per cent of reservable seats must be available at that fare and availability should be spread evenly across the travel period. The ASA regularly investigates and reaches adjudications concerning offending advertisements, and its findings are usually immediately recognised by any company falling foul of the rules.
CARD CHARGES Enforcement action was taken by the Office of Fair Trading (OFT) against 12 airlines, including Easyjet and Ryanair, who then agreed to include debit card charges in headline prices, rather than adding an extra surcharge at the end of each online booking process. They agreed to include these charges in July, with implementation before the end of this year. These charges have formed an important revenue stream for the carriers, and the OFT intervened to ensure that passengers were aware of the compulsory charges before booking so that they could compare prices between different carriers. Further investigations continue into what are seen as excessive debit and credit card charges, and the government has announced it will introduce legislation concerning this.
IN RECENT MONTHS, the European Court of Justice (ECJ) has confirmed that a worker who falls sick during their annual leave has the right to retake that leave at a later date, irrespective of when they fell ill. According to the decision, a worker who is unfit for work during a period of paid annual leave, and therefore incapable of working, is entitled to take paid annual leave corresponding with the period of sick leave at a later time, irrespective of when his incapacity for work arose. In an earlier judgment, the ECJ confirmed that the new period of annual leave (including additional leave caused by sickness during holidays) can be taken, if necessary, outside of a company’s annual leave year. This is a difficult area for those
involved in human resources, in terms of managing staff who may advise of sickness while on holiday and make what might be seen as unwarranted claims, particularly where it is difficult to verify their fitness. ■