Honest & Clear Communications
This guide flags the most relevant consumer protection laws, regulations and Codes, and sets out what is considered good practice in terms of dating services. The list of regulations and Codes is not intended to be comprehensive, but the ones highlighted below are of direct relevance.
The legal and regulatory framework
The European Directive on Unfair Trading implemented the EU Directive on Unfair Commercial Practices. The text of the UK Regulation can be reached through the link here. A thorough and clearly written assessment of the Regulations by lawyers, Pinsent Mason can be found here.
In 2014 the UK passed further regulations and guidance clarifying practices deemed unacceptable and setting out the rules and expectations re remedies and consumers rights to cancel or “unwind” a contract. The official guidance can be found here.
Dating services must also comply with the self-regulatory arrangements for advertising and marketing. The CAP Code on non-broadcast advertising and direct and promotional marketing can be found here.
Within the broad regulations on Unfair Practices the UK Competitions and Markets Authority (CMA) published guidance for businesses on the actions they can take avoid disputes:
Competition and Markets Authority Guidance on Unfair Terms published on 23 March 2016
Here are some of the main things to consider to help you communicate with your customers clearly and avoid unnecessary disputes:
The formal CMA guidance on the 2008 Regulations, including commentary on subscriptions and automatic rollovers can be found here.
On 13 June 2018 the UK Competitions and Markets Authority completed a review of the online dating sector and published guidance specific to the sector. This is of high importance and the advice is set out below in full along with the relevant links.
Dos and don’ts for online dating service providers:
Why is this important?
People need clear information about your services so that they know what to expect and can make an informed choice about whether your dating service meets their needs.
Under consumer law, if your terms or practices are unfair (including because the terms are unclear and/or the practices are misleading), you could face action by the CMA or Trading Standards Services, as well as directly from consumers in certain cases. Unfair terms are also not binding on consumers.
Where can I find more information?
Please note: these materials do not constitute legal advice and should not be relied upon as such.
The CMA does not seek to treat dating services differently from others when it comes to the principle of auto-renewal which is a recognised and allowable activity. They do, however, look at what might be considered proportionate in individual cases. They comment that few people sign up to dating services on a truly ongoing basis; as they might with a telecoms or financial services provider. On that basis we believe good practice with dating services is that any auto-renewal arrangement that has a term in excess of six months should include a reminder notification two to four weeks before the date at which renewal would take place.
Clarity when User’s join a service
Advertising, marketing and other regulations and the original ODA Code refer to ensuring people are not misled by omission, exaggeration or by other means. Customers should not need to struggle to get a full understanding of what’s on offer, how it’s paid for and how their data is used and privacy maintained.
There is a need for Terms and Conditions that address all the duties on operators to disclose relevant information.
It is possible through Google or others to check-out good examples of clear terms and conditions written with the user in mind. Google’s own T&C’s are generally highly regards (see) and Pinterest is another interesting example.
The Dating Service Offer and the Terms that apply
Before Users make any financial payments, service providers should be clear as to:
- the service offer: what is available free and what additional access or provision exists for those who make payment
- the duration of any services offered for the payment including any minimum subscription period resulting from the payment
- any element of automatic renewal and how this would happen
- any other key membership conditions or requirements that may affect the User’s decision to enter into some form of membership and contract
- the terms, duration and limitations on any free services it offers to Users and must make clear if any on-going commitments, including any financial commitments, arise or are applied as a consequence of accepting such an offer.
Being clear on the service provider and being accessible
If a service is targeted at a particular user base this should be made clear.
Users should be given a good understanding of how the service works. This includes advice on the basis on which users may regularly receive profile alerts and the basis on which these profiles are selected.
Alerts introducing new joiners to a service or others who appear a good match to the user messaged should be clear as to their status. They should not be drafted to appear to come direct from someone and with a seemingly friendly and personal greeting if the message is generated by the service provider.
If operators wish to refer to the scale of membership on a service, they should make sure the number used is a reasonable representation. It could mislead, for example, to include those who joined a service two or more years before and who have been inactive for most or all of that time.
Service Management and Pooling
Services should explain any the relationship between the site owner or promoter and any other third party who have a responsibility for managing the site or service.
Operators should advise prospective Users in advance if registration, membership or use of a service is based on being included in a pool of Users that goes beyond the User base of the service they are being invited to join. Those offering services within some pooled arrangement should be able to explain the nature of the arrangements, perceived benefits and any limits or safeguards in ways Users are likely to understand.
Operators who operate services based on pooling of Users should have regard to the appropriateness of the pools operated. They should give thought to the reasonable expectations of those joining a site in terms of the profiles and communications they might receive. For example, services that might be extremely “casual” in nature, facilitating encounters of an adult nature should not be pooled with mainstream or other niche services where there would be no expectation of this happening.
The Competition and Markets Authority has highlighted the importance of services that exist within some pool of other services supported by a “white label partner” ensuring they do not mislead new users over the pool of people on the service but present them with a realistic assessment of the number of users on the service and site they are considering joining.
Profiling and managing profiles
User information should include an explanation of the operator’s policy on data use, retention and any profiling needed to help the service deliver for users.
Operators should have easy to use arrangements for removing profiles from public view and the process to follow if a user wants to have their personal data erased.
Services need to be clear with Users as to their policy with regard to retaining profiles on a service after a subscription cancellation has been completed. Users may or may not want their profile retained and should be told this is something for them to decide.
Ending membership of a service
Operators should be clear as to their right to terminate a User’s membership or a User’s registration with immediate effect and the grounds on which the operator could invoke such termination. This is an important tool in addressing harm and maintaining trust. It should be under-pinned by guidance for staff on the possible importance of such interventions and of the need to pay attention when users report concerns.
Users must be able to cancel memberships and/or subscriptions online within the service or by e –mail. Introducing complexity, delay or limiting the ways in which cancellation can be achieved might be considered an Unfair Commercial Practice.
The advice on how to end a subscription or/and remove a profile should be easy to find, not limited to or submerged in Terms and Conditions. This can be done by integrating this information in a membership toolbar or page where users build, post and amend profiles.
Service providers should process and confirm all cancellation instructions from Users promptly.
Services should provide Contact details for those with responsibility for the site.
ODA Members operating paid-for services must have an accessible and clear refund policy.
Operators should have appropriate and effective arrangements for handling online complaints, queries or other User issues in a timely manner. Remember these issues go beyond the renewal or cancellation of subscriptions.