Is your business ready for the E-Commerce Regulations?
Rights and obligations
Recent online pricing mistakes by Kodak and Komplett have highlighted a number of problems facing e-tailers and all those whose conduct business on the Internet.
The E-Commerce Directive seeks to resolve some of these problems by creating a legal framework in which businesses and consumers have clear rights and obligations.
Member States of the European Union were due to implement the E-Commerce Directive by 17 January 2002. The UK, like the majority of Members States, failed to meet this deadline. The Department of Trade and Industry has taken a major step towards implementation of the Directive by publishing a draft of the E-Commerce Regulations. The Regulations may apply to your business if you:
- sell goods or services to businesses or consumers on the Internet or by email;
- advertise on the Internet or by email; or
- convey or store electronic content or provide access to a communications network.
The draft Regulations are currently undergoing a consultation period until 2 May 2002. While there are likely to be changes before the final version, it is important that businesses take a proactive approach to implementation.
Compliance with the Regulations will have a cost implication to many businesses, and this can be reduced by careful planning prior to implementation. The Regulations can be divided into three main categories: information, communications and contracts. If we take a look at each category, it quickly becomes apparent that many websites need to get up to speed.
Information on your website
1.1 Does your site have the following information:
1.1.1 the full name of your company;
1.1.2 your geographic address; and
1.1.3 contact details, including email address?
1.2 Are you a registered member of a trade whose register is open to the public? Have you given information on:
1.2.1 the name of the register; and
1.2.2 your registration number or equivalent means of identification in the register?
1.3 Where the provision of your services is subject to an authorisation scheme, have you provided the particulars of the relevant supervisory authority?
1.4 Is your Internet business part of a regulated profession i.e. financial services? Have you provided the following information:
1.4.1 the details of any professional body or similar institution with which you are registered;
1.4.2 any professional titles that you hold and the Member State where that title has been granted;
1.4.3 a reference to the professional rules applicable to your regulated profession and the means to access them; and
1.4.4 if you undertake an activity which is subject to VAT, your VAT number?
1.5If you refer to prices on your website are these indicated clearly and unambiguously? Have you stated whether these are inclusive of tax and delivery costs?
2 Commercial communications
2.1 When making commercial communications are these:
2.1.1 clearly identified as commercial communications; and
2.1.2 clearly identifying the person on whose behalf the commercial communication is made?
2.2 If you offer any discounts, promotional offers, premiums, gifts or competitions have you:
2.2.1 provided the conditions that must be met to qualify for it are easily accessible; and
2.2.2 are the conditions presented clearly and unambiguously?
2.3 When sending unsolicited commercial communications by email, do you clearly and unambiguously identify them as such?
3 Formation of contracts by electronic means
3.1 Unless parties who are not consumers have agreed otherwise, prior to an order being placed, you must provide the visitor in a clear, comprehensible and unambiguous manner the following information:
3.1.1 the different technical steps to follow to conclude the contract;
3.1.2 whether or not the concluded contract will be filed by the service provider and whether it will be accessible;
3.1.3 the technical means for identifying and correcting input errors prior to the placing of an order; and
3.1.4 the languages offered for the conclusion of the contract.
3.2 Unless parties who are not consumers have agreed otherwise, you must indicate which relevant codes of conduct you subscribe to and give information on how those codes can be consulted electronically.
3.3 When providing terms and conditions of the contract, the recipient must be able to store and reproduce them.
3.4 Unless parties who are not consumers have agreed otherwise, where the recipient places his order through technological means, you must:
3.4.1 acknowledge receipt of the order to the recipient without undue delay and by electronic means; and
3.4.2 make available to the recipient appropriate, effective and accessible technical means allowing him to identify and correct input errors prior to the placing of the order.
You can read the full text of the draft E-Commerce Regulations at the DTI's website.
Michael Archer is a partner at Beale and Company, a Covent Garden based law firm.