A close look on legal fintech related topics (second part)

By Axel Beelen (IP News)

We agree with you: you have an original idea, being a new product or service. You deposited your trademark or your invention as a new patent as we previously adviced you. You hired the most skilled IT teams (web designers, real-post nerds and crazy fanatic coders possessing the secret to always be on the first results on Google) who provide you powerful draft webpages. Now, you would like to build this beautiful dream-of-your life website on the domain name you recently bought and adding to it a guenuily cool salesflow. But… you are lost in the translation of all the legal jungle. Let us here help you.


Rules are complex and hidden in many texts

It’s true, you will have to cope with a lot of regulation. And believe us, more regulation are to come. One of the purpose of these regulation is to oblige you to better inform potential web-clients. That’s the goal of the 2011 Directive on Consumer Rights, of the Mifid I and II European Directives, of the data protection texts, etc. Having this basic principle in mind is the cornerstone of every compliant website. And being compliant can bring you a real competitive advantage and a label of correctness. 

The Belgian Economics Code foresees that any website must contain basic information allowing webusers to know who is behind the website they are on and how to contact him. The access to these kind of information has to be permanent, direct and easy. That’s why these info are generally put in the header or the footer of the websites via a link called « Legal informations » or « Who are we and how to contact us ».

Because a website contains advertisements, you will also have to take into consideration the regulation applicable to ads. Remember for example that your ads must be clear, transparent and above all not misleading. Disputes regarding Belgian ads can be lodged to the JEP

Since 2016 all financial ads have to also follow another set of rules. Indeed any ads related to a financial product (being a banking or an insurance one) have to contain a list of legal mentions informing the consumer about the financial product subject of the ads. These mandatory legal mentions depend on the product and are, for example, the applicable jurisdiction in case of trouble, the objectives of the investment product, etc. You can find more info on the website of the Belgian financial supervisor (the FSMA). 

Don’t forget privacy regulation

Your product/service is great and fantastic. That’s why you would like to add to your website a webshop to sell your great invention. Why not ? It is a modern way to directly sell your beautiful creation. But creating a webshop implies to be complied with remittance sales regulation. 

Moreover, because you will collect personal data of your clients (their name and surname, their address, their email, etc.), you will have to respect data privacy regulation. Remember that in May 2018 new rules will entry into force with the big General Data Privacy European Regulation (we will come back to that another time). You will have to add (again in the header or in the footer of your salesflow) a privacy clause. In it you will have to explain your potential clients (e.a.) what kind of data of them you will collect, why and until when you will store these data. You will have to tell your clients the identity of your Data Protection Officer and add an email allowing to contact him

The GDPR introduces two new notions : « privacy by design » and « privacy by default ». « Privacy by Default » simply means that the strictest privacy settings automatically apply once a customer acquires a new product or service. Under the « privacy by design » requirement, companies will need to design compliant policies, procedures and systems at the outset of any product or process development.

If you would like to collect clients email to, in the future, send them electronic direct marketing, know that you will to catch, in the salesflow, the clients opt-in. Generally shops add a sentence like « I accept to receive in the future commercial emails » that clients have to tick in. Note that the choice can’t be pre-ticked ! Every direct marketing email you will send after must provide the client with an easy process to no more receive them in the future.

Your client bought your product nevertheless don’t shout victory too soon. Indeed, because an online sale is a remittance sale, the client will always have at least 14 days in order to cancel his buying

Conclusion

Building electronic platforms is technically not already so easy (it’s possible to spend days trying to chose THE graphic template !). Incorporating all the beautiful functionalities you have in mind to differentiate you from your competitors could be a real challenge. You want to be unique with all the innovative and disruptive marketing tools allowing you to quickly engage with your growing audience. But remember to include a legal guy in your project. And from the beginning. Because you will have to comply with a lot of Belgian and European regulation. And all these texts are full of expensive traps if you are caught by one of the numerous supervisors. 

Prevention is better than cure!

Click here to read the first part. 

About the author

Axel Beelen is a not-so-young-but-still-enthusiastic digital lawyer. He passionately manages the ipnews.be electronic platform. The e-platform (unique in the French part of the country) explains in ordinary words the complex IP world to its large audience. The e-platform consists of a well-known website (www.ipnews.be), a Twitter account (@ipnewsbe) and a Facebook page.