Under the Companies Act, companies must identify their company registration number, place of business, registered office and address on all of their websites.
Businesses which undertake distances sales or provide services over the internet must give clear and comprehensive prior information to all customers.These requirements which are in addition to other requirements, apply to information society providers. An information society service is any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service. See the chapter on information services under Internet Issues.
The information, must be easily, directly and permanently accessible to the recipient of the service. The information must be provided both to consumers and non-consumers. There are provisions whereby non-consumers can agree to the contrary. These requirements are dealt with in the earlier part of this chapter.
Further information requirements applies to distance sales, subject to certain exclusions. They apply principally to distance sales between traders and consumers. See the relevant defintions in the chapter on Consumer Rights in relation to the scope of these requirement and the various exclusions which apply. They are dealt with in the latter part of this chapter.
Business and Contract Infornation
The required business information which must be provided by infomration society services providers (persons or corporates) includes:
- name of service provide (the correct person or corporate must be clearly identified);
- its physical (geographic) address;
- its electronic address which allows direct, rapid and effective contact;
- where the service provider is registered, details of the public register in which it is registered registration numbers or equivalent means of identification;
- where the service provided is subject to an authorisation scheme, the particulars of the relevant scheme;
- where the services are provided by a member of a regulated profession, details of any professional body or other institution
- relevant codes of conduct /professional rules to which the business is subject and information on how they can be consulted electronically;
- the professional title of the provider and the Member State where it has been granted,
- in relation to unsolicited commercial communications, details of how natural persons can register their choice; these should be prominently displayed on the service provider’s website and at every point where natural persons are asked to provide information at the service provider’s website (for example a registration form);
- where the relevant service refers to prices, those prices are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs.
See above in relaiton to the definition of an information services providers. See below in relaiton to the limited opt outs whch can be agreed with non-consumers.
In the case of telephone communication, the identity of the supplier and the commercial purpose of the call must be made clear at the beginning of the conversation.
The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable.
Promotional offers, such as discounts, premiums and gifts shall be clearly identifiable as such, shall comply with any enactment for the time being in force relating to such activities.The conditions which must be satisfied in order to qualify for them shall be easily accessible and be presented clearly and unambiguously.
An unsolicited commercial communication by an information service provider established within the State shall be identified clearly and unambiguously as such as soon as it is received by the recipient by stating that it is an unsolicited commercial communication.
Details of how natural persons can register their choice regarding unsolicited commercial communications shall be provided; these should be prominently displayed on the relevant service provider’s website and at every point where natural persons are asked to provide information at the provider’s website (for example a registration form);
Concluding a Contract I
The service provider must comprehensively, unambiguously and prior to the receipt of the service indicate:
- the different technical steps to follow to conclude a contract;
- whether or not the contract will be final and whether it will be accessible;
- the technical means for identifying and correcting input errors;
- the language offered for the conclusion of the contract;
- whether it is bound by any codes of conduct.
Inertia selling is prohibited. Inertia selling is the supply of goods and services to consumers beforehand where such supply involves the demand for payment. The absence of a response does not constitute consent and would not, in any event, constitute a contract.
Concluding a Contract II
In respect of a contract to be concluded by electronic means a provider shall indicate to the recipient of the relevant service, on the placing by the recipient of the order or as soon as practicable thereafter, which relevant codes of conduct, if any, the provider subscribes to and information in relation to how those codes can be consulted electronically.
Placing of Orders
- the relevant service provider shall acknowledge the receipt of the order of the recipient without undue delay and by electronic means,
- the order and the acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them.
Distance Selling and Online Trading (Consumer)
There are are EU wide regulations which deal with consumer protection in the area of distance selling. The Distance Selling Regulations (now the Consumer Information Regulations) are designed to protect consumers who are not physically present with the seller at any point during the sale or transaction. They cover purchases which make exclusive use of one or more means of distance communications.
The Distance Selling Regulations apply to distance contracts for the supply of goods and services concluded between a supplier and a consumer. A consumer is an individual acting in a private capacity outside of his trade or business. A supplier is any business acting in a commercial or professional capacity. They only apply to transactions between businesses and consumers. Accordingly, business to business transactions are not included.
Distance sales include internet sales, unaddressed printed matter, addressed printed matter, standard letters, press advertising catalogues, telephone with human intervention, telephone without human intervention, videotext, email, fax and teleshopping.
There are separate EU laws on distance selling of financial services. The rules are broadly speaking similar to those applicable to goods and services but are more detailed. There are more specific requirements in relation to rights of redress.
Distance and Off-Premises Sales
In distance and off-premises sales, the trader must provide specified information both pre-contract and post contract. Before a consumer is bound by an off-premises contract or offer, the trader must provide specified information.
The information must be apparent to a typical or average consumer who is reasonably well informed and reasonably observant. The totality of what is provided, including brochures and leaflets etc., is relevant to whether the requirements have been complied with. The information provided may become part of the contract, in which case, it may not be altered without the agreement of the trader and consumer.
- the main characteristics of the goods or services to the extent appropriate to the medium and to the goods or services concerned;
- the identity of the trader, including the trader’s trading name;
- if the trader is acting on behalf of another, the geographical address and identity of that other trader;
- the geographical address at which the trader is established; the telephone number, fax and e-mail address where available, to enable the consumer to contact the trader quickly and communicate efficiently;
- the geographical address of the place of business of the trader to which the consumer may address complaints, if different to the above;
- where the trader acts on behalf of another, the place of business of that other, to which the consumer may address complaints;
- the total price of the goods or services, inclusive of tax
- where the nature of the goods or service is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
- where applicable, additional freight, postal charges and other costs; where those charges cannot reasonably be calculated in advance, the fact that such charges may be made;
Further Required Information I
The following information is also required;
- in the case of contracts of indeterminate duration or containing a subscription, the total cost per billing method, where contracts are charged at a fixed rate, the total monthly costs or where the total cost cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
- the cost of using the means of distance communication, used for the conclusion of the contract, where this is other than at the basic rate;
- arrangements for the payment, delivery, performance and time by which the trader undertakes to deliver the goods or perform the service;
- where applicable, the trader’s complaint handling policy;
- where a right to cancel exists, the conditions, time limit, and procedures for exercising that right in accordance with the legislation;
- where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and in the case of distance contracts, if the goods by their nature cannot normally be returned by post, the cost of returning the goods;
- where the consumer exercises the right to cancel after having made a request in accordance with the regulations, that the consumer is liable to pay the trader’s reasonable costs in accordance with the regulations;
- where there is right to cancel the contract, the model form of cancellation certificate must be provided.
Further Required Information II
The following information is also required;
- where the right to cancel the contract does not apply under the regulations, confirmation that the consumer will not benefit from that right or where applicable, the circumstances in which the consumer loses that right;
- in the case of a sales contract, the existence of a legal obligation on the trader to supply goods that are in conformity with the contract;
- where applicable, the existence and conditions of customer assistance, after sale services and commercial guarantees;
- the existence of relevant codes of practice where applicable, how copies of such codes can be obtained;
- the duration of the contract, where applicable or if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating it;
- where applicable, the minimum duration of the consumer’s obligations under the contract;
- where applicable, the existence and conditions of deposit or other financial guarantees to be paid or provided by the consumer at the request of the trader;
- were applicable, the functionality including applicable technical protection measures of digital content;
- where applicable, any relevant interoperability of digital content with hardware and software of which the trader is or can reasonably be expected to be aware;
- where applicable, the possibility of having recourse to an out of court complaint and redress mechanism, to which the trader is subject and the methods for having access to it.
Before a consumer is bound by a distance contract, the information set out above must be provided in plain and intelligible language and in a way appropriate to the means of distance communication used. The information must be provided before the contract and promptly after it has been formed. The information above is deemed to form part of the contract. It cannot be varied without the consent of both parties.
The cancellation form must be provided where the right of cancellation exists (as is generally the case). The prescribed form of cancellation form should be provided. The costs associated with the return are not to apply when the information regarding such cost etc. has not been provided. The onus is on the trader to prove compliance.
In the case of a distance contract, it is enough for the trader to make the information available, rather than provide it. Accordingly, the information may be set out on a website. The information must be in plain and intelligible language and be presented in a way appropriate to the means of distance communication used.
A trader who uses telephone contact with the consumer with a view to concluding a distance contract must disclose at the beginning of the call, trader’s identity, the identity of any third party on whose behalf the trader acts and the commercial purpose of the call.
Confirmation re Payment
Where a distance contract is concluded on an e-commerce site, the trader must ensure that there is set out clearly and legibly prior to completion of the ordering process, whether any restrictions on delivery or limitation on the means of payment are applicable.
If the contract requires the consumer to make payments, the trader must ensure that the consumer is made aware in a clear and prominent manner prior to placing the order, of the requisite information regarding the goods, price, and charges, as set out above.
Before the order is placed, the customer is to acknowledge that the order implies an obligation to pay. Where the entry of the contract and the making of the order involves clicking a button or similar function, it must be clearly and legibly marked with words, making it clear that the obligation to pay immediately arises.
Confirmation of Distance Contract I
A trader who concludes a distance contract must provide confirmation of the concluded contract in a durable medium. All the information set out above is required, unless that information has already been provided to the consumer in a durable medium prior to the contract. Where applicable. This must include the consumer’s acknowledgment of the loss of the right to cancel, in the case of digital contract content which is not supplied in a tangible medium and where the performance has begun, with the prior consent of the consumer.
Confirmation must be provided within a reasonable period after the conclusion of the contract, and at the latest,
- at the time of the delivery of goods or before
- the commencement of performance of a service.
- the supply of digital content other than through a tangible medium.
- the supply of utilities (gas, electricity or water) not supplied in a limited volume or the supply of district heating).
Confirmation of Distance Contract II
Once the contract is entered, the required confirmation of information must be provided promptly. A copy of the signed contract may be provided, in the case of an off-premises contract with a consumer.
The copy of the contract or confirmation must be provided in paper form or in another durable medium, with the consumer’s agreement. The confirmation provided by the trader must include an acknowledgment of the consumer’s right to cancel the contract. Contravention is an offence.
Contravention of the obligations is an offence. The onus is on the trader to prove that he has complied with the obligations.
Offence of Breach
A person who fails to comply with the above distance sale or e-commerce requirements is guilty of an offence. Where a person is convicted of an offence, the court may order any data material which appears to the court to be connected with the offence to be forfeited or destroyed and any relevant data to be erased.
The court shall not make an order in relation to data material or data where it considers that some person other than the person convicted of the offence concerned may be the owner of, or otherwise interested in, the data unless such steps as are reasonably practicable have been taken for notifying that person and giving him or her an opportunity to show cause why the order should not be made.
Breach may be subject to civil enforcement by the Competition and Consumer Protection Commission. The burden of proof is on the trader to show that the information requirements have been complied with. Breach of the legislative obligations may also constitute a breach of contract.
Where the non-compliance relates to the costs of return, the consumer is not civilly liable for those additional charges. Breach of the legislative obligations may also constitute a breach of contract. Where the non-compliance relates to the costs of return, the consumer is not civilly liable for those additional charges.
References and Sources
Consumer Law Rights & Regulation Donnelly & White (2014)
Consumer Protection Act 2007 Annotated Bird (2008)
Consumer Rights Long (2004)
Commercial & Consumer Law: Annotated Statutes O’Reilly, P (2000)
Consumer Sales Law: The Law Relating to Consumer Sales and Financing of Goods 3rd ed
John MacLeod, James Devenney (2019)
Electronic Consumer Contracts in the Conflict of Laws 2nd ed Zeng Sophia Tang (2018)
The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution Pablo Cortes (2017)
Blackstone’s Statutes on Commercial & Consumer Law 2017-2018 Francis Rose
Consumer and Trading Standards: Law and Practice 2017 Bryan Lewin, Jonathan Kirk
Woodroffe and Lowe’s Consumer Law and Practice Woodroffe and Lowe’s Consumer Law and Practice 10th ed Geoffrey Woodroffe, Chris Willett, Christian Twigg-Flesner (2016)
Butterworths Trading and Consumer Law Looseleaf Annual Subscription Deborah L. Parry, Roland Rowell (2016)
Butterworths Commercial and Consumer Law Handbook 8th ed Richard B. Mawrey, Tobias Riley-Smith (2015
Consumer and Trading Standards: Law and Practice 4th ed