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Retail via live streaming: potential legal pitfalls

06 November 2020

Live streaming is now a very popular form of retailing, assisted no doubt by the stay-at-home restrictions caused by the ongoing pandemic.

Brands are increasingly marketing themselves, and their products, via TikTok, Amazon Live and other online services which can be used to showcase products via live online videos. The content of the live videos is often similar to that on television shopping channels. The live shows give viewers the chance to access special promotions during the show and viewers can interact directly with the content, asking questions of the host of the show. The host is often an influencer, celebrity or brand representative. The shopping experience is transformed.

But before embarking on selling products this way, it is important to anticipate and prepare for the potential legal issues that live streaming gives rise to, to ensure that everything goes to plan. To take a few examples:

  1. Ensure that you have the appropriate licences to use copyright works such as music, artwork, choreographed performances, and dialogue which features in the live stream. Be careful about displaying another company’s trade mark and, if you have to display it, make sure that you don’t use that trade mark more prominently than is necessary, in a derogatory way, or in a way which suggests a commercial connection between you and the owner of the trade mark which does not exist.
  2. Depending on the filming location, permission may be needed to film there, or to use the location for commercial use, or to feature the property in the live stream. If the location is public, permission may be needed from members of the public who contribute to the show, for example, by participating in an interview.
  3. Just as with Instagram advertising, ensure that the show is compliant with guidance from the Advertising Standards Authority and the Competition and Markets Authority, including the CAP/BCAP Codes where the overarching principle is that advertisements should not mislead or cause serious or widespread offence or harm. Note that particular care will need to be given if you are marketing to children, or advertising food products which are high in fat, salt and sugar.
  4. If the platform hosting the live show is processing customer personal data on behalf of the brand, for example when fulfilling a transaction, such personal data will need to be processed in compliance with the GDPR and the contractual arrangements between the brand and the platform will need to be GDPR compliant. In addition, if a brand is collecting customer data for its own purposes, it will need to have an appropriate privacy policy in place and ensure that it has obtained consent (where necessary) for any marketing communications.
  5. If the show features one-off promotions, viewers may be tempted to impulse-buy. Whilst that is good for sales, consumers will still be protected by the Consumer Rights Act 2015 and other consumer protection legislation. That means ensuring that goods can be returned, and are of the requisite standard, in the normal way. The fast-paced nature of the retail experience does not mean corners can be cut.

If care is taken to address these matters, brands will benefit from the opportunity to market their products in new, more interactive, ways, optimising growth in a difficult time for some retail brands, and shoppers will continue to gain confidence in this approach to online shopping.

This article was written by one of our senior associates, Lizzie Williams, and a version of this first appeared in Charged (Retail Gazette), which you can read here.

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