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Web contract changes are just not cricket

US appeals court silences Talk America

The UK position

Jon Fell, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM, said a UK court would likely come to the same conclusion when faced with these facts.

"I'm not at all surprised by the ruling," he said. "Unilateral changes to a contract, particularly a consumer contract, will always struggle to stand up in court."

"If an ecommerce site wants to change the terms of sale for returning customers, it's quite easy: you display a message on screen that tells customers, before they place an order, that the conditions have changed. You just have to make sure they accept the changes," he said.

Fell also warned against burying the changes in a long page of small print. "Summarise the key changes, to make life easy for the customer, and offer a link to the full terms," he said.

"It's impossible to evade this issue without running a big risk: whether you deal with businesses or consumers, if you want to make changes to a contract, you need the customer to accept them if you want to rely upon them," said Fell. "That acceptance usually can be implied by continued use of your services, but you have to bring the changes to the attention of the consumer."

Fell pointed out that credit card companies typically change their terms by sending a letter with full details and a summary of changes. "These letters often go straight into your bin, but the notification is what counts. Your continued use of the card implies your acceptance and you have a genuine opportunity to cancel if you want to."

He added that the mechanism for notifying any future changes to a contract should be addressed in the contract itself. Again, this must be fair to the customer and should offer an opportunity to cancel.

Last year, UK regulator Ofcom asked UK Online to modify its terms of service. These included a right for the broadband provider to modify its contract at any time by emailing changes to consumers. Ofcom noted that this did not give consumers a right to terminate if the changes were to their disadvantage. The wording was amended to provide that if a consumer reasonably considers he has been disadvantaged by a change, he can cancel.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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