Culture Counsel is a monthly column focusing on the intricacies of law through the lens of pop culture and business.
We live in a rampant consumer society. This has never been more apparent than during Black Friday and Cyber Monday. In the retail world, these have become iconic and exceptionally lucrative days for the consumer goods world. In fact, they are the 2 biggest shopping days, at least in North America. Traditionally, they bookend the US Thanksgiving long weekend holiday in November. Whereas Black Friday refers to sales at brick and mortar locations, Cyber Monday pertains to e-commerce retail. Slowly Black Friday has evolved into having an online element. It’s almost guaranteed that this year, Black Friday will almost exclusively take place online. In 2018, sales on Cyber Monday in the US alone totalled $7.9 billion. We reiterate: that’s $7.9 billion in 1 day of shopping in 1 country! COVID-19 lockdown or not, taking advantage of this shopping weekend is critical to any consumer good business. We can only anticipate how much more your e-commerce platform will be during 2020! As always, there are key legal issues that should be addressed in the lead up to Black Friday/Cyber Monday, which is scheduled for the weekend of November 27, 2020.
1. Privacy and Data. The facilitation of e-commerce transactions necessarily requires obtaining key personal information: name, contact information, address, banking information etc. Whether you are obtaining this information directly or a 3rd party is obtaining it on your behalf to facilitate the transaction, care must be taken to abide by privacy laws. Are you abiding by the governing privacy and consumer protection laws? What are you using the data for and do you have the rights to do so? Are you allowing 3rd parties to also use the data? How are you protecting that data? The collection and use of data is fast becoming a legal sticking point and will only continue to rise in prominence as businesses accelerate toward the digital economy.
2. Contracts. Contracts are foundational for your business. This also extends to your e-commerce supply chain. You will need to enter into written(!) contracts with your consumers, e-commerce service providers, suppliers, manufacturers, etc. At every point of the supply chain, you want to ensure that the rights and obligations are clearly set out in terms of both parties’ performance obligations and non-performance of those obligations is managed.
3. Website Policies. Policies dictate how your platform is used and is an important consideration. Policies can be as customized as your actual e-commerce platform. Consider incorporating return policies, privacy policies, shipping policies, moderation policies, user generated content policies etc. into your general terms and conditions.
4. Digital Marketing. Ensure that you are complying with marketing legislation, as well as the social media platform’s own advertising policies. Deceptive marketing practices are not allowed. Moreover, if you are integrating e-mail marketing campaigns into your marketing strategy, ensure that you comply with Canada’s Anti Spam Legislation. Factor in laws governing competitions and rewards, as well.
5. Influencer Marketing. Once an outlier in the advertising world, influencer marketing is now a prominent and wildly recognized online advertising vehicle. Governments have been cracking down on deceptive marketing practices run through influencer marketing campaigns. Carefully architect your influencer marketing campaign so that it complies with governing legislation. Moreover, enter into appropriate influencer marketing contracts as well.
6. Battling Infringement/Online Counterfeiting. Unfortunately, the greater your exposure online, the greater the likelihood that your brand will be ripped off by counterfeiters. It is possible to monitor the activities of unauthorized third parties through online watch services. Ensure that you take action against these third parties by enforcing your rights. Your avenues of enforcement may be varied. For example, social media platforms and third party e-commerce platforms have their own intellectual property enforcement mechanisms from which you can enforce your rights. In addition, it is possible to register your intellectual property with customs borders to stave off the import/export of counterfeit/grey market goods. As well, it is possible to use domain name dispute tribunals to take over ownership of domain names that incorporate your trademarks. Suffice it to say, the online world is not lawless. There are many avenues to enforce your rights. But recognize that you’re in the best position to enforce your rights, if you’ve actually invested in protecting those rights. So don’t forget to build up your intellectual property portfolio first, from which to enforce your rights.
7. Abiding by Foreign Laws. If you are targeting consumers in countries outside of Canada, be cognizant that there may be local laws governing your retail presence. This may extend to licenses/permits, how certain goods must be shipped, age restrictions of purchasers for certain types of goods.