With continued restrictions on physical interaction and proximity and many non-essential businesses being forced to remain closed or to reduce opening hours temporarily, there has been a shift towards online commerce. Many retailers with no previous e-commerce presence are moving quickly to change their businesses’ trajectories and there has also been a significant increase in consumer bulk buying online.
This surge in online commercial activity has resulted in a need for businesses to evaluate and analyse, from a legal perspective, the customer purchase process. In particular, businesses may need to consider how goods and services are advertised and delivered to consumers. Even as restrictions are eased, e-commerce is likely to continue to grow as consumers have become accustomed to online shopping and may be unlikely to risk physical exposure where these alternative purchase methods are available.
By way of assistance, we have summarised the top ten legal issues for organisations looking to sell goods and services online.
1. Terms of Sale:
Robust terms and conditions of sale are vital for online retailers. These set out the legal basis on which the goods or services are supplied to the consumer and include important information (e.g. delivery, pricing, and payment terms). More importantly, these terms enable retailers to protect themselves by limiting liability. Retailers should take care, in preparing any such terms, to avoid including any terms that would be considered ‘unfair’ under the applicable laws regulating consumer contracts.
2. Consumer Rights Information:
Consumer information rights legislation imposes obligations on retailers to provide information to consumers before the goods or services are purchased. Consumers must be informed of the identity and address of the retailer, the characteristics of the goods, the price or manner in which the price is calculated, and any applicable delivery charges.
3. Cancellation Rights:
For ‘distance’ contracts (contracts concluded ‘facelessly’ online or via mail order, SMS, fax, phone or teleshopping), consumers should be informed of the 14-day ‘cooling off period’ which entitles them to cancel the contract within 14 days of the delivery of the goods.
These terms (which are separate to terms of sale) apply to all website/app users rather than just to customers and set out the terms and conditions on which the user may use the website/app. These terms enable businesses to limit their liability and to assert intellectual property ownership over website or app content.
5. Website Cookies Policy:
6. Website Privacy Statement:
Most websites and apps will collect some, even if only a very limited amount of, personal data from website users. Retailers should therefore take care to ensure that their websites and apps contain a Privacy Statement that meets the standards set down by the GDPR.
7. Electronic Marketing Consents:
Many businesses will seek to target customers by sending electronic marketing communications relating to new offers. This type of marketing is very tightly regulated and is frequently prosecuted by the DPC. Each vendor-customer relationship will be different and specific legal advice should be sought for these marketing activities given that this is a complex area of law.
The Geo-blocking Regulation (which only recently entered into force), places an obligation on retailers to treat EU customers in the same manner when they are in the same situation regardless of nationality, place of residence or place of establishment.
9. Advertising Code:
Where a business has subscribed to the Code of Standards for Advertising and Marketing Communication in Ireland (the Code), it should take care to ensure all online advertising complies with the standards set down by the Code. Equally, a business should ensure that its advertisements are not false or misleading as this could give rise to liability under consumer protection laws.
10. Online Dispute Resolution:
The European Commission has created an online platform where customers are provided with a swift and low-cost mechanism through which to resolve disputes arising from online transactions. Retailers engaging in online sales are required to provide customers with a link to the platform on their website.
William Fry has a dedicated Technology & Commercial practice and would be happy to assist with the preparation of any documents referenced in this article or to advise on any related legal issues arising.
If you have any queries, please feel free to contact Michelle Clancy, Anna Ní Uiginn or your usual William Fry contact.
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Contributed by: Michelle Clancy & Anna Ní Uiginn
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