Cookie monster still threatening

Most fashion websites use cookies or similar devices. Usually this is for no more sinister a purpose than to enable users to navigate through the site and to track forwards and backwards at the customer check out. They are increasingly also being used to facilitate affiliate and behavioural marketing techniques to be deployed.

Until now, website operators have simply been required to tell users about the existence of cookies and what they are used for (usually contained somewhere in the privacy policy) and to enable users to disable them through their browser settings.

Potential changes to this legislation which are being discussed by the European institutions would greatly increase this burden however. The draft provisions require operators to obtain users' "consent" to their use. One of the problems with this change is that it is not clear what is meant by consent. There is a real risk however that it could be construed as requiring an "opt in" prior consent. This would be very uncommercial for websites and the advertising industry and is it really protecting individuals in an appropriate manner? The last thing Fashionista wants when trying to race to the latest sales bargains on her favourite sites, is to be confronted with lots of pop up boxes about cookies.

The European institutions aren't going to be discussing this change again until mid September but hopefully this will give some more time for industry lobbying to ensure a proportionate and commercial approach is taken.

Online shoppers still spending

Fashionista has always found browsing the Internet a good way of getting in some fashion research and yes maybe occasionally that does involve checking out the relative merits of different sites' sales processes. It seems she is in good company however since recent sales figures indicate that the e-commerce sector is still holding out pretty well.

At the end of last month the IMRG announced its latest e-Retail Index findings which it regularly produces with CapGemini and revealed that shoppers may not be as prevalent on the high street but they are turning up in healthy numbers to their virtual equivalents. Figures show a 9% month on month growth this year with annual growth at around 19% (although this is still down on the same time last year).

There have also been some notable individual successes reported recently. In particular, last week Asos announced that a boom in international sales resulting from the weakness of the pound and its price-conscious market positioning had led to a massive increase in sales by 104% for the year ending at 31 March 2009. They continue to be optimistic for the rest of the year.

Good signs indeed. Right, time for some more research....

The beauty is in the small print

Fashionista has been lucky enough to receive the following offering from her friend Mark Sebba of Net-a-Porter:

"Fashionista at Net-a-Porter has been an avid fan of Fashionista-at-Law since she started blogging and has been both amused and interested by her take on the current retail and fashion scene. At least Fashionista at Net-a-Porter doesn’t have to worry about those High Street real estate problems; of late she has been more pre-occupied by the imminent launch of her “sister” website, http://www.theoutnet.com/. In addition to scouring the best known fashion designers’ factories for some spectacularly exciting bargains to offer Fashionistas-at-Large, she has been troubling her pretty little head with the small print.

Hidden inside those Terms and Conditions, only a click away on every website, lurk a multitude of traps for unwary e-tailers. Although most people probably never read the T's and C's, every e-tailer has a horror story about someone – usually it turns out to be a lawyer – who has picked over them in detail and then challenges the e-tailer on the most arcane of points. So Fashionista at Net-a-Porter, as well as respecting Trade Descriptions, Sale of Goods legislation and Consumer Protection From Unfair Trading Regulations 2008 like any traditional bricks and mortar retailer, also has to pay careful attention to the Distance Selling Regulations and the Electronic Commerce Regulations. And that’s only for selling in the UK.

Many of Fashionista at Net-a-Porter’s customers live outside the UK: in the European Union – where another set of rules is fast developing for cross border e-commerce and Data Protection; and in the United States, where Fashionista at Net-a-Porter operates a separate distribution centre and a different website. So she needs to write another set of Terms and Conditions for her US business, but this set needs to conform to the laws of 51 different states, as well as to, among other things, the FTC Guidance document "Dot Com Disclosures Information About Online Advertising". Meeting these varied requirements calls for some juggling and of course much consultation with Fashionista-at-Law and her American cousin. How would we manage without the lawyers?"

If any of our other readers would like to share their thoughts or concerns, please email fashionista@olswang.com

Online, cross-border: new report published

The European Commission has just published a new report on cross border trade in the EU which contains some interesting stats and information for fashion e-tailers thinking about wider European opportunities. Running at 75 pages, it isn't likely to be your bedtime reading of choice, but luckily you have Fashionista to tease out some of the juicy bits for you!

• The overall the conclusion is that consumers are still not regularly purchasing items over the internet from other European countries. Some of this is down to personal-based decisions, for example language differences, the efficiency of different postal or payment systems and just familiarity and trust.


• But it isn't just this, since 33% of EU consumers say they are willing to purchase goods and services in another language (good news for UK e-tailers given that English is so widely spoken as a second language in Europe).


• It seems instead that many e-tailers simply aren't wanting to take orders from outside their own country and so impose the barriers themselves. Sometimes this is because of concerns about mulitiple jurisdictional compliance costs and tax management and the Commission is going to look into such barriers further.


• 3/4 of all EU retailers only sell domestically but 1/3 of consumers said that they would consider buying from another country because a product was better or cheaper.


• The UK maintains the second highest user or e-commerce services, pipped by Denmark and closely followed by The Netherlands, Sweden, Germany and Finland so you might want to start thinking about the potential of Nordic markets although another option is where the fastest growth appears to be happening in France, Italy and Spain.


• Clothes and sports goods are the second most popular purchase (at 41%) after holidays and flights, with online retail sales for clothes and footwear totalling 7.3billion euros in their review period of 2002 to 2007.


• Luxembourg, Cyprus, Malta, Denmark and Ireland feature as the most open to cross-border online shopping. The report notes that in smaller and/or insular countries, cross border e-commece has outpaced domestic e-commerce because there is less domestic competition.

Sounding off: the dangers of reviews and comment-based sites

Fashionista's attention has been drawn by Vicki Day of Pure Sauce to a growing desire in the UK for replicating the model of sites such as RetailDish.com, a US site which encourages fashion designers and sales reps to post details of which retail stores they have done good and bad business with. Some of the comments can get pretty catty indeed. One particularly choice example reads along the lines of alleging that "X should be locked up in jail or fed to the Hawaiian SHARKS...this woman is a criminal". No mincing words there then!

But is it legal to have such a website in the UK? Isn't this just an invitation for nightmare defamation claims?

The laws in the UK don't prevent sites from allowing posters to upload comments per se and such sites certainly can be very popular. Think for example of the success of electronic goods or restaurant review sites or even blogs which invite viewer responses. It is also worth remembering that there are potential defences to a defamation claim such as truth (although proving this may be another matter).

However things can certainly go wrong. Posts can be made which are defamatory or unlawful in other respects such as infringing of intellectual property rights. Whilst the poster is unlikely to be able to rest easy (and even the mask of anonymity won't help if a court order can require the website to disclose the poster's details) a website may still be able to find some protection in the UK provided it treads carefully and has done its homework. A website may, for example, be able to rely on defences in Electronic Commerce Regulations where it is only hosting such information and has not monitored, amended or had notice of the unlawful content. It is a tricky area however and much care is needed in the design of a website in order to understand the risks and ensure that it is set up and managed in a defence-friendly manner. It will also be essential to respond to complaints and take down content which is the subject of such complaints as soon as possible.

An alternative option is to monitor and amend content to ensure that it is toned down and no longer unlawful but this can be very risky if something is missed. Fashionista also thinks this can rather spoil the freedom of speech and spontaneous gossip fun of it all which attracts readers in the first place....