Distance Selling – Hyperlink to Terms Not Sufficient

The Court of Justice of the European Union (CJEU) has held that the information which businesses must supply to online consumers cannot be merely provided by a hyperlink to their website.

 

The Court of Justice of the European Union (CJEU) has held that the information which businesses must supply to online consumers cannot be merely provided by a hyperlink to their website.

When a business supplies goods or services to a consumer in circumstances where there is no face-to-face contact (e.g. online, mail order, by telephone), the Distance Selling Regulations apply. Under the Regulations a consumer must receive certain information relating to a purchase, including a description of the goods or services and information on the right of cancellation. The information must be received either in writing or in a durable medium available and accessible by the consumer. The most common way of doing this is by sending the customer an email with the relevant details.

A different approach was taken however by a German website in a case ultimately referred to the CJEU. Content Services Limited runs a subscription based website providing trial versions of software to their customers. When a customer subscribes to the service they receive an email containing a link to the Content Services website where the required information can then be viewed.

The CJEU made a distinction between passively receiving information and having to take a particular action in order to view information. It held that a customer did not receive the information if he or she had to click on a link sent in an email in order to view it.

Further, 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. 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 and nor could they ensure that it had not been altered.

Many ecommerce businesses already provide the requisite contract and related information in a ‘durable’ medium. However those which only provide the information via a hyperlink may need to revise their practices to ensure they are in full compliance with their legal obligations.

Contributed by Leo Moore.

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Leo Moore Partner