Whilst not specific to email marketing, the Competition and Markets Authority (CMA) has recently published advice on unfair terms under the Consumer Rights Act (the Act) 2015, which became law on 1 October. The intent of this article is to encourage you, or the specific person/department that deals with contracts, to read the guidance and, obviously, modify any wording to comply with it.
The guidance is essential reading for any business and an appreciation of what you can and cannot say in contracts might well save you court costs. This article must not be taken as legal guidance, it is merely an overview of certain aspects.
In essence, the Act, in assessing whether the wording of a contract places the consumer in an unfavourable position, uses a fairness test. Further, there is a requirement for transparency and plain, intelligible language.
Fairness will be judged as described in the Act, taking into consideration ‘all the circumstances existing when the term was agreed’. However, this is not when the contract under scrutiny was agreed but with reference to ‘a correctly defined hypothetical consumer for that case’. Headline terms need to be included early on in adverts.
The cooling off period is explained and some helpful tips are provided.
The guidance includes a ‘grey list’ of terms that may be deemed unfair unless the contrary is proved. These include exit fees, price changes, financial penalties, extended periods required for cancellations and variable terms. There are others. The grey list will reward close reading and closer interpretation.
Following on from the grey list is a blacklist, terms which cannot be used in consumer contracts. In essence, what this means is that their use would render the specific terms unenforceable and the fairness test mentioned above would not be used. The classic one, mentioned on various commentaries on the guidance, is the exclusion of liability for death/personal injury due to negligence.
Again, close reading of the blacklisted words and phrases is an essential as there is no argument; they cannot be binding.
There are some exemptions to the fairness test, in particular those terms required in law to be included, although the provision for transparency, and plain and intelligible language, is still required.
As you would expect, a term which limits or specifies the main subject matter of the contract or price will come under scrutiny and assessed as to whether it is fair, transparent and prominent.
To sum up the guidance and the specific provision of the Act in a few words, it is there to ensure that there is no significant imbalance in any contract between a company and consumer to the detriment of the consumer. Whilst this is rather crude, it is a fair summary.
It would seem that the guidance does not break any barriers or move into any areas that will cause dispute. In fact it is extremely clear (as it should be) and helpful. It comes in three sizes:
There is the Short Guidance, giving tips and an overview:
The Intermediate Guidance goes into the fairness/transparency tests and explains the various lists:
The Detailed Guidance complies with its title: