Website operators who sell products or services to consumers online must comply with the provisions of the Consumer Protection (Distance Selling) Regulations 2000. These require you to provide consumers with specific information in a durable medium before the products or services are delivered.

Pre-Contract Information

The following minimum information must be provided to customers before online sales are concluded:

  • the name and full address of the supplier;
  • exactly what is being bought;
  • the price (including any additional charges or costs, such as taxes and delivery costs).

The above information must be provided in a way which allows the customer to store, access and reproduce the information for as long as may be necessary in connection with the online sale.

Cancellation Rights

You must inform customers of their right to withdraw from the contract within the cooling-off period (14 days), otherwise the customer’s right to withdraw will automatically extend to 12 months.

What is a Durable Medium

“durable medium” is not defined in the Distance Selling Directive on which the UK law is based. The Office of Fair Trading states in its guidance that a website is not a “durable medium” because it can be changed at any time after it has been accessed by a consumer.

This view seems to have been confirmed by the recent European Court of Justice (ECJ) case below.

Content Services Ltd v Bundesarbeitskammer

The ECJ ruled in this case that sending a consumer a link to terms and conditions on a website does not constitute providing information in a “durable medium” because:

  • the consumer must receive the relevant information without having to take any positive action i.e. clicking on a link; and
  • a website is not a “durable medium” as it does not allow a consumer to store information which has been addressed to  him personally; the content can be changed;and it does not allow the consumer to reproduce the information unchanged.

How to Provide Information Correctly

In light of the above ruling if you enter into distance contracts with consumers which are subject to the Distance Selling Regulations, make sure that you do not rely on a link to a web page to provide customers with the required information.

Instead you should provide the required information:

  • via  email before the products or services are delivered; or
  • send the consumer a hard copy of the information by fax or in a posted delivery note.

Help

Irene Bodle is an IT lawyer specialising in SaaS agreements with over 10 years experience in the IT sector. If you require assistance with any SaaS, ASP, software on demand contracts or any other IT legal issues contact me:

irene.bodle@bodlelaw.com
www.bodlelaw.com

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