European briefing | Complying with information requirements online
Few would disagree that handing over a letter counts as communicating information, even though the recipient must open it to know about its content, 'so why not consider hyperlinks in the same way, asks Paul Stanley NO
The description given in case C-49/11 Content Services Ltd (3rd Chamber, 5 July 2012) of how the company Content Services offered software subscriptions from its German website will be familiar to anyone who has ever bought something on the internet. Users completed a registration form. They had to click a box indicating that they agreed to terms and conditions. These were accessible from a link on the registration form, and were provided in an email that users received when they signed up. They included the information that must be provided to consumers under Directive 97/7/EC. As soon as they had signed up consumers had access to the software provided on the site, for a year.
The Bundesarbeitskammer, an Austrian body responsible for the protection of ?consumers, brought proceedings against Content Services, alleging that this way ?of doing business infringed various provisions of the directive, which is designed to protect consumers who enter into distance selling contracts.
Under the directive, the trader is obliged to provide certain information 'in good time prior to the conclusion of any distance contract', and the consumer 'must receive written confirmation or confirmation in another durable medium and accessible to him. . . in good time during the performance of the contract' unless the information has 'already been given to the consumer prior to the conclusion of the contract in writing or on another durable medium'.
The question posed was whether the provision of information by means of hyperlinks on the website and in an email constituted the giving (or receiving) of information, and if so whether it was supplied in a 'durable medium'.
Information by hyperlink
The ECJ started by considering the meaning of 'giving' and 'receiving'. Was information 'given' or 'received' by telling the consumer where it was available (at a particular hyperlinked location on the internet)? The ECJ thought not. Giving and receiving suggested 'transmission'; the consumer who is provided with a hyperlink (which may or may not be clicked) 'must act in order to acquaint himself with the information in question'. This, the ECJ said, was not enough, where the aim was to protect the consumer.
Is this sensible? Even in common cases, a person may need to do something in order to access information. If I hand a letter over in an envelope, the recipient must 'do something' to acquaint himself with its contents: he must open the envelope and take the trouble to read it.
Of course, many people don't bother. But nobody would suggest that the information had not been 'given' or 'received'. The act of clicking a hyperlink does not seem significantly different; it requires no more effort (less surely) than opening an envelope. It fulfils the role of enabling the interested consumer to obtain information without any difficulty at all.
The approach adopted by the ECJ can easily be satisfied by banal formalities: it is a simple task to have terms written on the page, pop-up boxes, forced (and, one suspects, usually fictitious) confirmation that the consumer has actually read the information. It seems highly doubtful that these things do anything to advance the cause of consumer protection. Most consumers are not interested; they will ignore the information however it is presented; they prefer to do so when spending small sums of money because they generally find that the 'small print' is irrelevant in small transactions.
It seems highly unlikely that someone who can't be bothered to click on a hyperlink is going to take the time to read such information. Consumers need protection but the approach taken by the ECJ really does nothing practical to enhance it
Durable medium
The second question concerned the recording of the information in a 'durable medium'. Here the ECJ held that the medium needed to be either paper or a paper-equivalent: something the consumer can, as it were, take control of and 'store'. So something like an email would suffice. But not just a link to a website controlled by the trader, because the trader could unilaterally change the content of that site at any time.
This aspect of the judgment seems sounder. It is important, to avoid and resolved any dispute about what was provided, that there is some sort of record of it. That is presumably what the 'durable medium' is intended to ensure. The ECJ left open the question whether, with appropriate safeguards and technology which guaranteed that the contents of a website remained accessible and unchanged for a sufficient period, it would be possible for the information to be recorded in a 'durable medium' while remaining on the traders' website. It did not necessarily exclude that possibility, but found that it did not apply to the case at hand.
It might be objected that any consumer could make a record of the contents of the link by printing it or saving it. But that is not as easy as following a hyperlink. And the directive places the onus on the trader to supply the information in a durable medium, not on the consumer to make that record.
Online traders will need to make sure that their procedures are compliant with this judgment. Simply making information accessible on a website is not enough. Where the directive applies, the information needs to be directly presented to the consumer before any contract is concluded, and '“ at least in most cases '“ it needs to be individually supplied to the consumer in a form that can be archived afterwards.