- Category: November - December 2009
Whoever is marketing products and services on the Internet or wants to present their own company there should do it in the legal framework set by the legislator. And actually, this is quite easy to do, as the rules of the virtual business world don’t really differentiate substantially from the realworld. However, these few differences should always be borne in mind. Remember that a legally erroneous appearance on the Internet can be dangerous for one other reason. Your competitors will not only rapidly detect defects, but aggressively push for elimination of the violations in the future and damage your reputation – often with the aid of their attorneys.
The rule of thumb regarding e-commerce and distance selling regulations is therefore: “Customer’s legal protection in marketing and transactions should be at least the same as in any other trades.” Actually a vendor operating on the Internet can even take advantage of the Internet. Mail order transactions are conducted with catalogues which are published a few times a year, but on the Web it's possible to update product information continuously. The customer also expects that the online shop information is up to date, the out-of-stock items are not shown, and that the displayed prices are correct.
Regardless of the transaction stage the customer is in, the page should at all time display buttons which the customer can click to check the following:
- Imprint: who is the vendor
- Contract terms and conditions of the vendor
Imprint: Who is the Vendor
The imprint shall help to identify and contact the provider of a web site - quickly and reliably. Who presents an online shop should stand to this fact.In case of a deficients presentation of the owner/operator of the Website the owner of the domain shall be liable in case of any legal problems regarding customer complaints or anything else. Domain owners should therefore never lose track of deals and offers that are addressed with their domains. The imprint should contain the full address as well as contact details that are easily recognizable, immediately accessible, and continuously available. Implicitely there should be rendered in addition a direct e-mail address (not just a form) and a telephone number. Anyone who wants to avoid that he will be harassed by phone can arrange phone calls with 0800 numbers, but accepting that it’s more expensive. The Company Registration Number should be missed here if you intend to earn the trust of customers.
Contract Terms and Conditions of the Vendor
No entrepreneur is liable to use general terms and conditions, but usually they will exploit such stock phrases, which apply to a variety of contracts. In this case, there is a legal obligation to make these conditions available to end users right on the landing page. It can not be urged enough to create such terms and conditions by lawyers and to monitor the constant ongoing compliances with the conditions of the legal requirements.
In distance selling, the providers have to inform their customers prior to the conclusion of a contract in particular about personal identity, the nature and quality of the product or service sold, price, delivery modalities, and especially the revocation or return information. Indeed, the consumer may revoke every business he has virtually closed within a certain period (usually within 2 weeks) without giving any reason, but has to return the bought goods then of course. The advantage for entrepreneurs is that he only needs to refund the purchase price if the goods are back with him.
This statutory period starts running only from the date on which the consumer has received a clearly designed instruction about the revocation right. When the supply of goods is due, the right of revocation expires even only upon customers’ access to the goods, but at the latest six months after the conclusion of the contract. If the instruction is relinquish in writing only after signing the contract, as e.g. often in virtual auctions, the deadline is a full month. Of course everything has to be substantiated by the entrepreneur in case of litigations.
How a proper revocation regarding content has to look like lawmakers in general kindly disclose accordingly and a repetition of necessary information on the supplier’s website should be suffient for the time being, as the consumer can obtain information on the screen.
An online shop that forgets the instruction of revocation not only risks that products are still returned to him months later, but runs the risk to get admonished with costs and be charged for nonfeasance by competitors. Frequently there is indeed an instruction about a revocation or return, but that often doesn’t meet legal requirements, as rights of consumers are restricted in an inappropriate manner. If for example the original packaging of the goods is damaged, the customer obviously can’t return the product in the original box. That’s a fact and can’t go to the consumer’s expenses, so an equivalent packaging should be sufficient. The customer does not even have to engage that the goods will be picked up from him. A pick-up is in that sense consumer-hostile, as the consumer is then forced to be reached at home at a specific time, etc.
The exception proves of course the rule, such as for instance purchasing stocks online or some tickets on the Internet, as here the sale can’t be revoked like in a ticket agency. For practical reasons legislators generally don’t subordinate such transactions under the rules of the Distance Selling Act.
A right of withdrawal also doesn’t apply to contracts for the supply of goods which by their nature are not suitable for return, like goods that can spoil quickly or whose expiration date is exceeded. Custom made products fall in that category, too.
Software or music downloads would be unduly hampered as well, if a withdrawal would be allowed. Even downloads of software or music with costs have no right of objection as legislators envisioned it only for audio and video recordings as well as software that are provided on sealed data media. However, non refundable are such services and goods which by their nature can not be returned, which logically includes downloads. Excluded are further contracts for supply of newspapers, journals and magazines and the provision of gaming and lottery services.
With regards to content, it should be pointed out to the user which data is collected and for what purposes it is used. Only then the person can evaluate what happens to his data.
It is important to distinguish strictly between data that can be stored under a contract without further ado, and such data that can be collected and used only with the expressed consent of the user. Sole storage of data, essentially needed for the processing of a concrete contractual as e.g. the name, shipping address and account details, is always allowed.
Additional information, for instance about the age of the user's browsing habits, are not allowed to be saved without explicit consent - although such consent can be easily given online. As always, the evidence that the consent was actually given is the responsibility of the provider of the tele-medium.
Remember that there is generally a legal obligation for data avoidance. It is therefore strongly advised to collect as little as possible or store even permanently personal data, which means data that can give insight into the personal circumstances of an individual.After completion of the contractual relationship personal data must be anyway immediately deleted.
By Daniela La Marca