Insight

• Look at the email address from which the message was sent, not just the part of the message that identifies the sender. Usually, such malicious messages are sent from email addresses with an extension after the “@” that has nothing to do with the party being impersonated as the sender;
• Look at the whole message – for general addresses, errors in the text, requests for urgent action, and other indicators that it is not specifically addressed to you;
• Under no circumstances should you provide personal or sensitive information;
• Do not access any links or files attached to the email in question until you have verified that the message is indeed from a legitimate source. Please do not reply to or download any content from such emails.
• Check the URL before accessing links by hovering over the link, and never access links that start with http: instead of https:
• Do not take action before consulting the IT department;
• Keep your anti-virus software up to date.

In addition, we would like to inform you that Murgova & Partners Attorneys-at-law has not sent such messages, and if you have received them, please have in mind that these are part of such phishing attack. Please do not open such e-mails and do not download their attachments!

In our practice in the field of intellectual property and protection of copyright and related rights, we more and more often encounter various cases in which photographic works are used on the Internet by third parties other than the authors or the copyright holders. We witness how some users perceive someone else’s works available in the virtual space which are a subject to free use, and in such cases the consideration of certain specific features is omitted, which in general leads to copyright infringement.

With the current article we present you the main guidelines that you should follow when using photographic works on the Internet, so as not to infringe copyright.

In English, the general term “copyright” has been adopted, which contains the rights of the authors of various works of intellectual property much more comprehensively. Bulgarian law considers either the general concept of “copyright and related rights” or the different types of such rights.

What do you need to know about intellectual property rights to photographic works in the light of their use on the Internet?

The Bulgarian Act on Copyright and Related Rights (ACRR) considers several hypotheses regarding the use of photographic works, without, however, considering the specific hypothesis of their use on the Internet, which should be equated to a public display within the meaning of our law. According to the Act on Copyright and Related Rights, the right to publicly display photographs belongs to the author or to a person to whom the author has transferred this right. Therefore, as a rule, the free use of photographs (including on the Internet) without the consent of the author is prohibited. This rule applies even to portrait photographs, as the law allows the author and the person photographed to agree on the terms of the use of the photograph. It is important in these hypotheses to note that the photographer should in the first place obtain the consent of the person being photographed to photograph him.

An exception to the rule above according to the Act on Copyright and Related Rights is allowed when using works (including photographic ones) that are constantly exhibited on streets, squares and other public places, if this is done for information or other non-commercial purposes. Such use does not require the consent of the copyright holder and no remuneration is due.

The following exception under our law for the use of a photographic work without the consent of the author is permissible in the reproduction of the work, regardless of the medium, by an individual for its personal use, provided that it is not made for commercial purposes. In this case, however, a payment of fair compensation to the author is due.

Regardless of which of the hypotheses of use it falls under, however, the fundamental right of every author, including photographers, should not be forgotten, namely that their authorship should be indicated or the so-called “photo credit” should be given. ”. Even the general terms and conditions of websites that offer access to and use of completely “free” photographs contain texts according to which the reference to the author and/or the source of the photograph is always good, and in our opinion the best practice.

This recommendation is based not only on our experience in solving many similar cases when using photographs on the Internet, but also on the basis of our work with highly developed ways to monitor the use of photographs on the Internet. Advances in technology have made it possible to create automatic platforms that detect the use of photos on the Internet and notify photographers of any such use. The assessment of whether the use is lawful or not is usually made by the author himself or by the attorney engaged by him.

In addition, it should be kept in mind that referring only to the source from which the photograph is used may also not be sufficient. According to the Act on Copyright and Related Rights, without the consent of the copyright holder and without payment of remuneration, it is admissible to reproduce works related to a current event, so that these works are used by the media to a limited extent, justified by the purposes of the information indicating the name of the author, unless this is not possible. Make sure that it is really impossible to find the name of the author of the photograph, as these would usually be rare hypotheses. It is a common practice, especially for young photographers, to publish their works on the Internet and to provide the opportunity to use them without remuneration, but with obligatory reference to the author himself. This guarantees copyright when using the “free” photo. Omission of the author’s reference in the use of such works equates to copyright infringement with all the consequences of the law.

For such violations ACRR provides a property sanction in the amount of BGN 2,000 to BGN 30,000, and the possibility remains open for the author to claim compensation for property and non-property damages in court. Here we should also take into account the hypothesis that, if you have used photography by foreign authors, the Bulgarian law will not be applicable and possibly the court case for establishing copyright infringement is very likely to be subject to a foreign court, thus the defence possibilities would be further complicated, and in addition you might be charged with high court costs and attorney’s fees. In such cases, we usually advise our clients to use out-of-court means to reach an agreement with the other party. Negotiation and mediation are extremely appropriate and successful solutions in such cases.

To avoid such consequences and risks when using third parties’ photographic works on the Internet, we advise you to follow the recommendations in this article, as well as to consult with attorneys-at-law with vast experience in the field of intellectual property, just like us in “Murgova and partners” Attorneys at Law. If you have any questions or need advice, we will be happy to help you. Contact us through www.murgova.com

*Image by mohamed Hassan from Pixabay

In our previous article on the subject, we have presented you some of the most important requirements that the legislation sets for online trading. In its continuation with the current article we would like to provide you with information considering several additional, but fundamental questions for every trader. Thereinafter we will focus on how product advertising should be organized so that, without violating statutory prohibitions, the trader can distinguish his own from those of his competitors and thus direct the consumer demand to them, as well as how should promotional/discount campaigns be organized.

Requirements for comparative advertising to be observed:

The legislation is based on the perception that the comparison between the qualities of different products is predominantly useful for the consumer and therefore comparative advertising is allowed in compliance with the requirements aimed at preventing malicious harm to the interests of competing companies. On the other hand, the comparison between the products of competitors always carries the risk of harming the interests of the competitor, since the purpose of advertising is precisely to highlight the advantages of the advertised product and thus direct consumer demand to it.

Therefore, and in order to avoid the restrictions of the prohibited comparative advertising, more often than not established methods are used in which the ads themselves set a basic appearance of similar products in order not to target those of a particular competitor, but despite that the effect of emphasizing the positive characteristics of the advertised product is achieved.

What should the advertising message of the trader who has decided to take advantage of the opportunities for comparative advertising look like?

• The comparison should be objective, between products and services that satisfy the same needs. Otherwise, there is no way to make a real and adequate comparison, and advertising will not be objective;
• Advertising messages that make false claims, use vague or misleading messages, withhold or exaggerate information, and that harm the competitors’ name or trademarks in bad faith should be avoided.

Requirements for organizing promotional/discount campaigns:

When organizing discounts, the trader should comply with the following requirements:

• It is recommended for larger campaigns to prepare clear rules for the discount, provided for customers;
• The discount announcement should contain information about the goods and services which are on a discount and the duration of the reduced price;
• The announcement should be made in one of the ways provided in the Consumer Protection Act, so that the comparison between old and new price is visible;
• The old price, which will be stated in the discount announcement, is considered to be the one applied by the trader at least one month before the discount (this condition was introduced to avoid price speculation and the so-called “fictitious reductions”). ;
• The reduction period should be between 1 working day and 1 month;
• The conduct of a discount campaign does not entitle the trader solely because of the proposed lower price to “take away” certain rights of consumers (eg the right of withdrawal, complaint, etc.).

It is important to keep in mind that non-compliance with the requirements for lawful conduct of discount campaigns could lead to the imposition of administrative sanctions on the trader, but more significant would be the “sanctions” imposed by consumers themselves, who as a result of established unfair practice, would redirect their demand to other similar products of competing companies.

On the other hand, it is important to keep in mind that a large part of the e-commerce legislation aims not only to protect the interests of consumers, but also to protect the competitive environment. Therefore, when taking a number of actions in an online environment, the trader should continue to comply with the rules of competition law, which he adheres to in his usual course of business.

This article has outlined some of the most important aspects that every trader should keep in mind when conducting online trading. The variety of factual relationships leads to the emergence of many other cases that require a complex and timely solution from the trader. Therefore, we at Murgova and Partners Attorneys at Law are next to our clients every day, providing them with constant assistance in finding the most appropriate solutions. If you need additional information and assistance, you can visit our website: https://murgova.com/

During the past period of social distancing and restrictions we have witnessed an unprecedented boost in the development of e-commerce. The inability of many retailers to continue direct sales of goods and services to their customers has led to the relocation of a number of businesses online. An interesting phenomenon is that in the online environment have moved even services, the added value of which is to provide an individual experience of the client (eg classes in creative activities, etc.).

In order to adequately organize its activities in a dynamic environment and to protect themselves from unwanted sanctions, every trader should ensure compliance with certain requirements set from a legal point of view. In this article we will summarize some of the most important of them, the observance of which we define as particularly important in order to legally exercise the commercial activity of companies in the online environment.

Obligation to provide information to customer-users

The relationship of the online trader with consumers (individuals who buy goods or services for their non-professional needs) has a significant and inevitably accompanying them in their entire development light motive. This is the requirement for the trader to provide the consumer with as much information as possible, which will enable him to make an adequate decision for product selection. In its turn, the latter is partly difficult due to the fact that in online trading consumers cannot see and directly compare several similar products (something they can do without a problem when physically buying goods). Therefore, the legislation introduces several additional requirements for the trader, the implementation of which aims to guarantee the consumer’s right to information in its various aspects and in its full scope.

These requirements are set out in several national and European regulations, given the qualities of the parties in the relationship in e-commerce leading among which is the Consumer Protection Act (“CPA”). According to the requirements of the latter, before the consumer is bound by a contract, the trader should have provided him with information on:

• your trade name, address of management, phone number, e-mail;
• the main characteristics of the goods or services (through a textual description of their main parameters such as size, material from which the goods are made, etc., as well as through a photo that objectively presents the product);
• the final price of the goods or services including all taxes and fees;
• payment terms, including accepted means of payment (information regarding the payment should be provided in a clear and obvious way close to the button through which the user places his order);
• terms of delivery (including whether there are any restrictions on the delivery itself, as well as the date of delivery);
• information on whether a right of withdrawal is provided and under what conditions it can be exercised;
• conditions of a legal guarantee for correspondence of the products, and if any-of an additional commercial guarantee, as well as additional information under what conditions, in what terms and where the granted rights are exercised.

In addition to the above, the Electronic Commerce Act (“ECA”) strengthens the requirements for providing unimpeded access to certain information, which further includes:

• designation of an authority which controls the activity of the trader;
• VAT registration information.

Last but not least, the legislation in the field of personal data protection requires the trader (who also has the capacity of Administrator within the meaning of the General Regulation on Data Protection) to provide certain information to users whose data are processed when accepting orders in online stores. Part of it overlaps with the one already described, and in addition the trader-administrator should inform the client – subject of personal data about:

• an appointed data protection officer (if any) and contact details;
• purposes of data processing and legal basis for processing operations (the most common case in online trading will be for the purposes of contract execution – the customer’s order);
• data recipients;
• data retention period;
• information about the rights of the clients in relation to the provided personal data;
• information on the right to appeal and to which authority the same can be exercised;
• information on whether the provision of data is mandatory or voluntary and what would be the consequences of not providing it.

It is important that the full required information is provided by the trader to the consumer and that this circumstance can be proven by the trader.

How to document the presentation of all the described information?

A very large part of the information described above is usually contained in several basic acts of the trader related to his commercial activity, including that carried out in an online environment. Here we will consider the most important of them, as well as some of their significant specifics:

• General terms and conditions: given the standardized form of the relations between the parties, it is an established practice for the contracts within the framework of online trade to be concluded under general conditions.

In addition to the information described above, the General Terms and Conditions most often contain information about the customer registration procedure (if required for placing an order), as well as the sequence of actions when placing an order. Something that is often missed is the inclusion of information and an active link to the Public Online Dispute Resolution Platform.

In case the trader wishes to collect additional declarations, consents, etc. from the clients, which are not among the obligatory requisites of the General Terms and Conditions, he should do so with a separate document. This is important because with the adoption of the General Data Protection Regulation, the previous practice of including in the General Terms and Conditions or in another general document a number of additional statements to be made by the user in a single action has been established as vicious (usually by pressing on the “I agree to the Terms and Conditions” button).

• Confidentiality rules: they perform the purpose of an act presenting preliminary information to data subjects within the meaning of the General Data Protection Regulation. Following the adoption of this Regulation, it has become established practice to place this document in a publicly accessible place (eg in the trader’s office, on his website, etc.).
• Cookie policy: contains information about what cookies are, what types the trader uses on his website and how they can be regulated. It is known that there are cookies without which the website cannot function and are therefore considered strictly necessary. On the other hand, there are those that are not necessary for the functioning of the website – e.g. marketing and other Particular attention should be paid to the so-called third party cookies (installed by third parties). For the majority of cookies, which are not strictly necessary for the functioning of the website, the regulations require the collection of prior explicit consent for their installation on a user device by the visitors of the website. It is worth mentioning here that the consent should be explicit and the so-called pre-ticked boxes.

This article outlined some of the most important aspects that every trader should keep in mind when starting an online business. In our next article we will provide you with additional information on how to organize the advertising of products so that without violating statutory prohibitions, the trader can distinguish his own products from those of his competitors and thus direct the consumer demand for them, as well as how discount campaigns should be organized.

Murgova and Partners Attorneys at Law has significant experience in advising online traders. If you need additional information and assistance, you can visit our website: https://murgova.com/