I spoke to an official in the Department for Business Enterprise and Regulatory Reform (BERR) earlier today about the current status of the UK’s implementation of EU Directive 2005/29/EC – The Unfair Commercial Practices Directive (UCP)

This Directive aims to harmonise legislation across the EU and improve consumer protection.

The issue for bloggers is that fake bloggers or bloggers who recommend 3^rd party products and do not disclose they have a contractual agreement with that company, could be in breach of this new law.

I asked the BERR official two direct questions:

     Q:  If a blogger promoted a 3^rd party product or service and did so without

          disclosing any financial or contractual relationship would that be a breach?

     A: Yes. For example if a hotel employee or an agent or other 3^rd party wrote a review of a hotel and posted it on a forum or user comment site

         like TripAdvisor without declaring the business relationship it would be a breach.

     Q: If a blogger recommended a book on their site and provided a link to an e-merchant and in turn received a commission then would it be a

         breach?

     A: Maybe or maybe not. This is a grey area. In the UK it would take a court action to determine if it was a breach. For example a person may

         write a review of a book and link it to Amazon and receive a commission. There is no contractual relationship per se but it maybe deemed that

         by the blogger signing up to be an Affiliate and receive commission on sales it is in effect a ‘commercial practice’

The UCP legislation is being implemented to stop unfair behaviour towards customers and make business clearly identify ‘advertorial’ or ‘misrepresentative’ marketing by misleading consumers.

Misleading commercial practice is defined as:

• Contains false information
• Deceives or is likely to deceive the average consumer

And

• Causes or is likely to cause a transactional decision that would not have been otherwise take

The two watchwords that bloggers need to take into account – transparency and disclosure. At all costs they should avoid ‘advertorial’ without disclosing the fact.

The EU have provided a useful guide.  

Directive 2005/29/EC should have been enacted into UK legislation by the summer of 2007 to be in force by December 12 2007 but it is late and not expected now until the Spring of 2008. The UK will be repealing and updating a number of consumer protection laws and this has delayed matters.

For a status of other EU country implementations of the Directive see the EU site.