Latest Newsletter

Posted in: Business News - 03 Dec 2013

Our latest Newsletter is out with information for clients on the new top-level domains such as .CLOTHING.

Free Website Audit

Posted in: Business News - 12 Oct 2012

Autumn Newsletter

Posted in: Business News - 10 Oct 2012

New Guidance on Cookies

Posted in: Business News - 03 Feb 2012

The Information Commissioner's Office ("ICO") has recently published further guidance on the implementation of the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011. We take a look at the guidance and summarise the key messages for businesses.

Background

The Privacy and Electronic Communications (EC Directive) Regulations 2003 (the "Regulations") cover the use of cookies and other similar technologies for storing and accessing information on a person's computer or mobile. In May 2011 the UK Government introduced an amendment to the Regulations. The main change introduced in the amendment required that users or subscribers to a website must consent to the use of a cookie before the cookie is activated.

What do I need to do?

Whilst there is an acknowledgement amongst law enforcers that implementing the rules will require considerable work this will not constitute a reason for not complying with the new law. As of May 2012 website owners will be required to ensure that consent is obtained from users to the use of cookies. The guidance is very clear that " those setting cookies must -
•tell people that the cookies are there,
•explain what the cookies are doing, and
•obtain their consent to store a cookie on their device." (ICO Guidance 13 Dec 2011).

What is very clear is that you must ensure that information about the use of cookies on your site is prominent and clear to the user. This can be achieved by positioning the hyperlink to a Privacy Policy in a more prominent location at the top of the page and highlighting this. For example, "Read about how we use cookies" could be displayed on the top right hand corner of the page containing an imbedded link to the Privacy Policy or Terms and Conditions which contain more detail about the cookies.

Exceptions

The Regulations cover both persistent and session cookies however cookies which are "for the sole purpose of carrying out the transmission of a communication over an electronic communications network" or which are "strictly necessary for the provision of an information society service by the subscriber or user" are excluded from the requirement to obtain consent. This means that cookies such as those which remember what a user has put in the shopping basket would be considered to be "strictly necessary" and exempt from the requirement to obtain consent. The following types of cookies will be likely to fall within the exception:
•cookies used to remember what a buyer has placed in their shopping basket

•cookies used with online banking services which provide security in order to comply with the seventh data protection principle
•cookies which help to ensure that content is loaded quickly.

How do I obtain consent?

There are a number of ways in which you could obtain user consent to the use of a cookie. Which method you use will largely depend on how your site is configured and which cookies you deploy. Examples of ways in which consent may be obtained include:

  • Pop ups or splash pages.
  • Specific consent to Terms and Conditions which include a clear statement on the use of cookies.
  • Settings led consent. You could obtain the users consent up front to the use of cookies to remember preferences.
  • Features led consent. This can be achieved at the time the user has to click on the link or switch on the feature e.g. using a video.

Can I rely on a User's Browser Settings?

In time, you may well be able to rely on the user's browser settings as a way to satisfy yourself that consent has been given. At present, however, most browser settings are not sophisticated enough to rely on this mechanism. The Government is working with major browser manufacturers to establish which browser settings will be available and when.

Third Party Cookies

If you display content from a third party on your website (e.g. an advertisement or a video service) then you will need to ensure that information is provided to the user about the cookies which may be used by the third party. This information can either be provided by you or the third party. It is therefore important that you establish this upfront with the third party.

What if I do nothing?

The ICO has given businesses a lead-in time of 12 months in order to achieve compliance (i.e. until May 2012). After this time it will follow up complaints made by users and take enforcement action where appropriate. In the first instance it will contact the website owner to discuss the complaint. The ICO has a number of remedies which are open to it including the imposition of monetary penalties of up to £500,000.

McKenna Hughes is currently working with web developers to provide a solution to its clients. If this is of interest to you please contact us on info@mckennahughes.co.uk or 01789 721831. You can download a copy of the ICO guidance by going to www.ico.gov.uk.
 

Extension of Cancellation Rights - the new EU Rules on Consumer Rights

Posted in: Business News - 14 Nov 2011

On the 10th October 2011 the EU Council of Ministers formally adopted the new EU Consumer Rights Directive. This will have implications for many of our clients, especially those who are online retailers. We have summarised the ten most important changes.

  1. Hidden charges and costs will be eliminated on the internet. Consumers will be required to explicitly confirm that they understand that a fee is payable before ordering goods or services.
  2. Increased price transparency. Traders must disclose the total cost of a product or service. If all of the costs are not disclosed to the consumer then these will not be payable.
  3. Banning of pre-ticked boxes on websites.  Pre-ticked boxes will be banned across the EU. So, for example, sites which currently have pre-ticked items such as insurance will need to change this practice.
  4. Cancellation period extended to 14 days. The current period of 7 days will be extended to 14 calendar days during which time the consumer may change his/her mind and cancel the order. If the consumer has not been clearly informed of his/her cancellation rights the return period will be extended to one year. Buyers at online auctions will also be offered the protection of the cancellation period if they are purchasing from a professional seller. No distinction will be made between solicited and unsolicited visits for traders who visit consumers at home.
  5. Refunds must be made within 14 days. Traders must refund consumers within 14 days of the cancellation and this will include the cost of delivery (as is the case now).
  6. An EU wide model withdrawal (cancellation) form to be introduced. Consumers will be able to use a standard EU template withdrawal form which they can complete and send to the retailer.
  7. Credit card and telephone hotline surcharges to be eliminated. Traders will only be permitted to pass on the actual costs which they incur when accepting credit card payments and using a hotline telephone number.
  8. Clearer information on who pays for returning goods.  The retailer must make it very clear beforehand if the consumer is to pay the costs of returning the goods if he/she changes his/her mind. An estimate of the costs of returning large items should be provided to the consumer.
  9. Better consumer protection in relation to digital products. Information on digital content, compatibility with hardware and software and the application of any technical measures or restrictions will need to be made clear before a purchase is made. Cancellation of the goods can only be made up to the point that downloading begins.
  10. Common rules for businesses across Europe. These will include a common set of rules for distance selling contracts; the use of standard forms (e.g. the cancellation form); and specific rules for small businesses and craftsmen such as no right of withdrawal or cancellation for urgent repairs or maintenance and Member States may include exemptions for traders who are requested to undertake work in a home where this is less than €200.

Member States have been given a period of 2 years to implement this legislation so there is time to prepare and the changes won’t be immediate. Some of these changes however do pose an added burden on businesses and will result, in some cases, in a loss of revenue. McKenna Hughes will be updating clients when the UK Government confirms the implementation dates for this new piece of legislation. We will be able to offer our clients assistance with changing existing terms and conditions and advise on implementation. If you would like to discuss any of these changes and the impact it may have on your business please get in touch – info@mckennahughes.co.uk or call 01789 721831.

Qualifying Period Increases for Tribunal Claims

Posted in: Business News - 06 Oct 2011

As from the 1st April 2012 the qualifying period to bring an unfair dismissal claim in front of an Employment Tribunal will increase to 2 years.

The current requirement is that the employee must have been employed by the employer for a minimum period of 1 year before he/she can bring an unfair dismissal claim. The change follows the recent "Resolving Workplace Disputes" consultation which the Government launched earlier this year. More changes are due to be announced in the next few months. It is anticipated that these changes will reduce Tribunal claims by more than 3,000 claims per year.

New Regulations in force 1st October

Posted in: Business News - 03 Oct 2011

 Agency Workers' Regulations
Anyone employed through an agency will be entitled to the same terms and conditions of employment as if they had been recruited directly with the employer provided they have completed a 12 week qualifying period in the same job with that employer. Prior periods of employment do not count. For those currently engaged as agency workers the qualifying period starts from 1st October 2011. The agency worker is entitled to access to the same facilities and job vacancies information from Day 1 of their assignment. There is no requirement for a qualifying period for this. For more information go to http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance

 Minimum Wage

The new minimum wage rates increase from the 1st October 2011 to:

  • £3.86 for those aged between 16 - 17 years but under 18 years
  • £2.60 for apprentices aged under 19 years or in the first year of apprenticeship if over 19 years
  • £4.98 for those aged between 18 - 20 years
  • £6.08 for anyone aged over 21 years.

Unfair Contract Terms

Posted in: Business News - 23 Sep 2011

The High Court has ordered a gym management company to change its terms and conditions as it found these to be unfair and unenforceable. In particular, the company was ordered to reduce the minimum term in standard contracts and to notify all customers of this change - The Office of Fair Trading v Ashbourne Management Services Limited & Ors. 12 Aug 2011. To avoid these issues in your business our advice is to always ensure that your terms and conditions are properly drafted by a professional. Contact us for a quote - info@mckennahughes.co.uk.

Distance Selling Resource Launched

Posted in: Business News - 08 Aug 2011

On the 1st August the OFT launched a new online resource to help traders understand the Distance Selling Regulations. The resource can be found at http://www.oft.gov.uk/business-advice/treating-customers-fairly/dshome.

July Newsletter

Posted in: Business News - 15 Jul 2011

Our July Newsletter is out! Please click on the following link if you would like to read or download a copy http://www.facebook.com/l.php?u=http%3A%2F%2Feepurl.com%2FeK0FI&h=uAQCYakYX.