EU Distance Selling Rules - How Not to Comply with the Information Provision Requirements

EU distance selling rules require businesses selling goods or services online to provide certain information (for example, the seller's name and address, the price of the goods and the right to cancel the contract) to their customers before a contract is concluded. Further, if that information has not been given to the customer in a "durable medium available and accessible to him" before the contact was concluded, the seller must make sure that it is provided (in a durable medium) to the customer in good time during the performance of the contract and, at the latest, at the time of delivery.

E-commerce businesses beware, making certain EU-required information available to your customers via hyperlinks to the relevant page on your site is, on its own, unlikely to satisfy the requirements of EU distance selling rules. You need to make sure that such information is provided on time and in a way that enables customers to store it, ensure that its content is not altered, access it for an adequate period and reproduce it unchanged - for example, by setting it out in an email to the consumer.

In the recent case of Content Services Ltd v Bundesarbeitskammer (C‑49/11), an English company offered various subscription services via its website, including, for example, downloads of free software or trial versions of software. Users had to subscribe in order to use the site and, when they did so, they had to tick a box to say that they accepted the company's general terms and conditions and that they waived their right to cancel the subscription. The information required by EU distance selling rules (including, in particular, the right to cancel) was not shown to users at this point - they could, however, view it by clicking on a hyperlink on the contract sign-up page.

This theme of providing users with a hyperlink to a page where they could access the relevant information rather than expressly providing the information to the users continued through the order confirmation email and invoice stages of the contracting process.

The Bundesarbeitskammer, an Austrian consumer protection body, challenged Content Services’ business practices on the basis that they infringed EU distance selling rules. Several questions were referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling including, in particular, whether making the requisite information accessible to consumers only via a hyperlink on a website meets the requirements of European distance selling rules.

The CJEU held as follows:

• Making information available on a seller's website accessible to consumers by sending them a hyperlink to that content does not constitute "giving" that information to consumers, or consumers "receiving" that information - this is primarily because action is required by the consumer to click on the link in order to see the information.
• Placing information on a website and making that website accessible to consumers does not constitute providing that information to consumers in a "durable medium." To be "durable" the medium must allow the consumer to store the information which has been addressed to him personally, ensure that its content is not altered and that the information is accessible for an adequate period, and give consumers the possibility to reproduce it unchanged. This was not the case in respect of Content Services' website.

© Arnold & Porter Kaye Scholer LLP 2012 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.