Online shopping has become the order of the day. From apparel to white goods to daily needs, consumers find shopping over the web easy, efficient, and less time-consuming. Online shops have multiplied in the decade, with the largest online retailing corporations remaining E-bay and Amazon.

Information must be provided in such a way that consumers can store it, ensure it has not been altered, and access it- Josette Grech

The process of online shopping is simple: once a particular product is identified in a web store, the consumer proceeds to choose the size, colour or quantity. The chosen item is put into a virtual shopping cart that allows the consumer to accumulate multiple items or adjust quantities.

During checkout, payment details and delivery information is collected by the retailer and the consumer often receives an e-mail confirmation once the transaction is complete. Before you know it, the item is at your doorstep.

Transactions of this nature are known as B2C or business-to-consumer. A large part of these dealings are nowadays concluded in circumstances where there is no face-to-face contact. These transactions are specifically protected under EU law under the Distance Selling Directive.

The directive compels traders to provide consumers with certain information about their businesses and about sales transactions. Details of traders’ names and addresses, information about the product or service, the price and details of consumers’ general right to withdraw from a contract must be provided in good time before to the conclusion of any transaction.

The information ought to be provided in a clear and comprehensible manner and consumers must receive confirmation in a durable medium of the trader and sales details. The most common way of doing this is by sending the customer an e-mail with the relevant details.

A recent ruling of the Court of Justice of the European Union dealt with the extent of the requirement to provide consumer access to such information. The matter concerned an online website, configured in German and also accessible in Austria, by means of which Content Services Limited, an English company, offered various online services.

This company informed consumers that they had agreed to waive their right of withdrawal from the transaction only in the terms and conditions of sale, which was accessible during the order process over a hyperlink. The right of withdrawal therefore was not shown directly to internet users, who could view it only after clicking on the hyperlink.

The action was brought by an Austrian consumers’ organisation challenging Content Services’ business practice on the grounds that it infringed consumer protection rules.

The Higher Regional Court of Vienna referred the case to the CJEU for a preliminary ruling after an appeal to it was filed by Contents Services that had been unsuccessful in the first round of court proceedings. The Court of the EU was requested to rule on whether a consumers’ right to information is satisfied when information is made available to the consumer by means of a hyperlink on the trader’s website.

The CJEU ruled that the information businesses must supply to online consumers cannot be merely provided by a hyperlink to their website. The Court made a distinction between passively receiving information and having to take a particular action in order to view information. It held that customers are not deemed to have received the information if they had to click on a link sent in an e-mail to view it. Merely sending a link to a webpage containing the requisite information does not qualify as sending information to consumers and it could not be said to have been received by consumers.

In ruling against Content Services, the CJEU stated that the information must be provided in such a way that the customer can store it, ensure that it has not been altered and access it. Links were not considered to be a durable medium through which traders can provide consumers information that is required under EU law.

Consequently, the manner in which the Content Services website provided the information to its customers did not meet these requirements as the customers could not store it themselves nor could they ensure that it had not been altered.

Many e-commerce businesses already provide the requisite contract and related information in a ‘durable’ medium.

However, those companies that only provide the information over a hyperlink may need to revise their practices in order to ensure they are in full compliance with their legal obligations. Best practice now is to send a personalised e-mail to the customer with the required information.

jgrech@demarcoassociates.com

Josette Grech is an associate with Guido de Marco & Associates and heads its European law division.