Linkable contracts are NOT enough

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This is a reposting from Giulio Coraggio’s gamingtechlaw.com blog: http://www.gamingtechlaw.com/2012/07/linkable-contracts-are-not-enough.html

The European Court of Justice (ECJ) held that in distance contracts the minimum information to be provided to consumers according to the EU Distance Selling Directive cannot be supplied through a mere link as this cannot be deemed to be a “durable medium”.

The Distance Selling Directive provides indeed that at least the following information shall be “given” to consumers through a “durable medium”:

  • written information on the conditions and procedures for exercising the right of withdrawal,
  • the geographical address of the place of business of the supplier to which the consumer may address any complaints,
  • information on after-sales services and guarantees which exist,
  • the conclusion for cancelling the contract, where it is of unspecified duration or a duration exceeding one year.

Since if the information is accessible through a mere link is not “given” and a mere link is not “durable” as the accessible information can be amended by the Internet service provider, such approach does not meet the requirements provided by the Directive.

The above mentioned decision is interesting as e-commerce operators will not be able anymore to provide the required information through a mere link to the Ts&Cs in the email acknowledging the placed order, but the information above shall be at least provided in the body of the email confirming the order or attaching a copy of the Ts&Cs.

It is worth it to mention that the Distance Selling Directive does not provide the so called “country of origin” principle, but any entity (including US companies) selling their products/services to people located in Italy which – as previously discussed – will be also obliged to act before European consumers’ courts if found to “direct” their business to European consumers.

The scenario is even more complicated under an Italian law perspective as the Legislative Decree 70/2003 implementing the EU E-Commerce Directive requires that the following information is provided through the communication acknowledging the placing of the order:
general and special contractual conditions;
information of the essential features of the purchased good or service and
details on the price, the means of payment, the right of withdrawal, the delivery costs and the applicable taxes.

The above mentioned decision and the provision referred above are likely to convince e-commerce operators to attach to the email of acknowledgement of orders a copy (rather than a link) to their general and special contractual conditions.

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Giulio Coraggio (LL. M.) is Senior Associate at DLA Piper, Milan. Join Giulio's Linkedin network at: http://www.linkedin.com/in/giuliocoraggio

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