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Summer is a promissory note signed in June, its long days spent and gone before you know it, and due to be repaid next January (Hal Borland)
January? Most of us are back in the office and accounting for the lazy days of summer now. Meetings are starting to take over diaries like an infestation of Japanese knotweed and, to the surprise of many, telephone calls are actually getting answered.
Things are getting done.
So, before you get too excited and start to tick off everything on your 'to do' list, take 5 to check out August's top 5 commercial law developments:
Between November 2014 and January 2015, the committees on non-broadcast (the Committee on Advertising Practice (CAP)) and broadcast advertising (BCAP) consulted on proposals to remove the distance-selling rules from the UK Codes of Non-broadcast and Broadcast Advertising.
The CAP and the BCAP proposed removing the distance-selling rules from the Codes because:
Following the consultation, the CAP and the BCAP have removed the distance-selling rules from the Codes with effect from 6 August 2015.
The changes do not affect consumers' statutory rights but the Advertising Standards Authority (ASA) will no longer look into complaints in this area.
The UK Code of Non-broadcast Advertising, Sales Promotions and Direct Marketing (the Cap Code) provides that advertisements must be obviously identifiable as such. Therefore, if a video blogger or vlogger is paid to promote a product or service and an advertiser controls the message, it becomes an advertisement.
New guidance from the Committee of Advertising Practice (CAP) clarifies that if vloggers are advertising, they must be upfront and clearly signpost the fact.
The guidance aims to help vloggers better understand how and when the advertising rules apply to their vlogs, and comes in response to calls for greater clarity from vloggers about when material in vlogs becomes advertising and how they can make this clear.
The CAP guidance follows an Advertising Standards Authority (ASA) ruling in 2014 in which several vlogs, in which there was a commercial relationship between the advertiser and the vloggers, were found to be misleading because they did not make clear to consumers that they were advertisements.
The guidance provides a non-exhaustive list of vlogging scenarios with practical advice on how and when the rules kick in. The scenarios covered are:
The advertising rules do not cover or prohibit vloggers entering into commercial relationships, and the ASA does not regulate editorial opinion.
In response to feedback from vloggers, however, the CAP and the ASA are also reminding brands and agencies looking to partner with vloggers of the need to be transparent. Any advertiser or agency that asks a vlogger not to disclose that they're advertising are asking the vlogger to break the advertising rules and potentially the law.
The government has outlined its intention to stop bans on invoice assignment clauses in business-to-business contracts following a consultation.
Invoice finance can provide a vital means of finance for suppliers, including small businesses, for which it might be the only assets against which they can borrow.
Currently, a supplier's commercial customers are able to contractually bar invoice assignment, which can subsequently raise the cost of, or even prevent access to, invoice finance.
The government intends, through powers provided in the Small Business, Enterprise and Employment Act 2015 (SBEEA 2015), to nullify the contractual terms which seek to prohibit assignment of invoices. The government has concluded that the nullification of ban on invoice assignment clauses should:
The Information Commissioner’s Office (ICO) has served an enforcement notice on Google requiring it to remove information about a person relating to a minor criminal offence committed nearly ten years ago.
The ICO’s ruling confirms that although searches may contain links to stories in the public interest, an unwarranted and negative impact on the individual’s privacy can nevertheless constitute a data protection breach.
Following a request by the individual concerned, Google agreed to remove links relating to the criminal offence. However, once the story was delisted, the delisting itself became a news story soon after. Some articles on the delisting included information about the criminal offence. The individual again complained to Google regarding these later links. However, Google refused to remove these links from their search results, arguing the stories concerned its decision to delist a search result and, further, the articles were an essential part of a recent news story relating to a matter of significant public importance.
The ICO, however, ruled in favour of the individual. It said by including in its search results links to articles containing information no longer relevant to the individual, Google breached the Data Protection Act 1998
The Department for Business, Skills & Innovation (BIS) is consulting on the introduction of a Small Business Commissioner.
The discussion paper sets out the government's current understanding of the problems that small businesses face and its thinking about possible solutions.
It seeks views and further evidence about the problems and how the proposed Commissioner can help.
The Commissioner's services will enable smaller firms to resolve disputes with other businesses quickly and easily. This will preserve important commercial relationships without the need to go to court. Its main functions will be:
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