In yesterday's post, I considered the basic legal information that most commercial websites are required by English law to disclose. Many of these basic disclosure requirements are contained in the Electronic Commerce Regulations (EC Directive) Regulations 2002 (the “Ecommerce Regulations”). The Ecommerce Regulations also contain a number of (widely ignored) provisions that apply where contracts are entered into online. This post considers those provisions. (It does not, amongst other things, consider the requirements of the Distance Selling Regulations which will affect consumer contracts concluded online.)
Technical steps to conclude a contract
Prior to the conclusion of an electronic contract, the service provider must provide to the service recipient in a clear, comprehensible and unambiguous manner details of the different technical steps to follow to conclude the contract. The easiest way to do this is to include, somewhere on the website – e.g. in the legal documentation – a step-by-step guide to the contracting process.
Filing and accessibility of contract
Prior to the conclusion of an electronic contract, the service provider must tell the service recipient in a clear, comprehensible and unambiguous manner whether or not the concluded contract will be filed by the service provider and whether it will be accessible to the service recipient. Given that online T&Cs may be regularly amended, the simplest way to deal with this requirement is to state, in the T&Cs, that the contract will not be filed and therefore may in inaccessible!
Correcting input errors
Prior to the conclusion of an electronic contract, the service provider must provide to the service recipient in a clear, comprehensible and unambiguous manner details of the technical means for identifying and correcting input errors prior to the placing of the order. The service provider must also actually provide such appropriate, effective and accessible technical means, prior to the placing of the order. The usual way to fulfil this requirement is to have a pre-order web page detailing the information submitted and asking the customer to confirm whether they would like to amend that information or place the order on the basis of that information.
Service providers must also, strangely, provide service recipients with information about the languages offered for the conclusion of the contract. This requirement can be met by stating in the website legal documents that the contract is only available in Esperanto (or whatever).
Codes of conduct
A service provider must indicate which relevant codes of conduct he subscribes to – and give information on how those codes can be consulted electronically.
T&Cs: storage and reproduction
Where the service provider provides terms and conditions applicable to the contract to the recipient, the service provider shall make them available to him in a way that allows him to store and reproduce them. In my view, an HTML page or .pdf file can be stored or reproduced with ease, and so should fulfil this requirement. However, a cautious website operator might include a “print now” button on the terms and conditions.
Acknowledgement of order
Where a recipient of the service places his order through technological means, a service provider must acknowledge receipt of the order to the recipient of the service without undue delay and by electronic means. However, the acknowledgement of receipt may take the form of the provision of the service paid for where that service is an “information society service” (e.g. a subscription to a website).
Where a contracts is concluded exclusively by email, the only requirements that apply are those set out under the “T&Cs: storage and reproduction” heading. Businesses contracting online with other businesses may agree that the above provisions – other than those set out under the “T&Cs: storage and reproduction” heading - do not apply.