Black Friday/ Cyber Monday sales ‘botched’ – Did retailers get it wrong?

Irate customers of internet-based UK fashion retailer, ASOS, claimed the company misled them about its Black Friday sales.  Australian customers were not able to claim Black Friday discounts, despite an ASOS Instagram post informing its customers to keep an eye on the site for Black Friday deals to arrive.  ASOS defended its actions through a follow up Instagram post, explaining that certain promotions are not offered in all markets.   Meanwhile, Aussie retailer, JB- Hi Fi, promoted its Black Friday sale through a Facebook post. Unfortunately, technical glitches on JB’s website prevented many customers from completing their Black Friday purchases.  Similarly technical problems on Black Friday and Cyber Monday also plagued a number of large U.S retailers (including Gap, Walmart and Victoria’s Secret), who all experienced website outages during the sales.

ASOS’s conduct, in not clarifying that Australia was exempt from the sale, may well have been misleading or deceptive to Australian consumers.  While it is unlikely that legal consequences will flow from either that or JB Hi Fi’s technical glitch, their reputations have not escaped untarnished.

These Black Friday mishaps are a timely reminder for in-house teams to nail down processes for legal clearance of their businesses’ promotions and advertising campaigns in the run up to Xmas and Boxing Day sales; particularly if promoting through social media.

If your organisation is running a promotion or sale, key questions to probe your business on include:

  • Are the deals you’re promoting what they seem? Can you honour your promotions?
  • Can you substantiate all your claims (be particularly wary about comparative advertising)?
  • Are your terms and conditions crystal clear, particularly in relation to returns policies and voluntary warranties applying to sale products?
  • If you’re running the sale through your website, can your website server withstand the extra traffic?

If your business intends to use social media to promote its sale, avoid the tendency to be flippant.  Remember the same laws apply to social media vis a vis infringing third party intellectual property and breaching consumer laws.  Keep in mind the following guidelines:

  • Always obtain permission before sharing (or re-tweeting) a third person’s social media content.  You will need to check the relevant platform’s rules.
  • Ensure you don’t imply an endorsement or connection with a celebrity or organisation unless that endorsement is genuine.
  • If using material obtained from an image library (such as Shutterstock), remain mindful of the terms of use and track the material’s use. The terms may have territorial and timing restrictions that are hard to enforce if shared via social media.

The consequences of breaching the Australian Consumer Law or infringing intellectual property can be serious. But we know (being in-house lawyers ourselves) that legal marketing clearance is often a low priority for in-house legal teams. That’s why lexvoco has developed technology that automates and simplifies the legal marketing clearance process for clients.  We’ve also developed services, such as Legal Operations, to help legal teams achieve their objectives as efficiently as possible.

For help with law firm work, legal operations or legal technology, contact us via info@lexvoco.com or by calling 1800 875 735.