Content Services Ltd v Bundesarbeitskammer, European Court of Justice
The Consumer Protection (Distance Selling) Regulations 2000 implement in the UK the Distance Selling Directive, and require that suppliers of goods by distance contracts must inform consumers of certain information by, at the latest, the time of delivery of the relevant products or services. The information must be communicated via a “durable medium”, which is not defined in the Distance Selling Directive but is defined elsewhere in European Union law as a means by which a consumer can store information addressed to him in a way that is accessible for future reference for an adequate period of time. The UK’s Office of Fair Trading (OFT) has issued guidance which states that a website is not considered a “durable medium” because it can be changed at any time after it has been accessed by the consumer.
The Austrian courts recently considered a case where a website provided consumers only with a web link to the relevant information, and referred the issue to the European Court of Justice (ECJ).
The ECJ has recently published it ruling, which states that providing a link to the relevant information on a website is not a “durable medium” for the purposes of the Distance Selling Directive. The ruling gives two reasons for this:
1) the Distance Selling Directive states that a consumer must “receive” the relevant information, which should not involve any positive action by the consumer; such receipt was not achieved by the consumer having to undertake the action of clicking on a link; and
2) the website in question was not a “durable medium” as it (i) did not allow the consumer to store information addressed personally to the consumer, (ii) could be altered, (iii) was not necessarily accessible for an adequate period taking into account the purposes for providing that information, and (iv) did not allow the consumer to reproduce the information unchanged.
The ruling is interesting as it clearly points online suppliers towards ensuring that the relevant information is received by a consumer either as an email before delivery of the relevant products or services or as a hard-copy delivery note. It is also interesting that the ruling is consistent with the OFT’s guidance in the UK. However, the ruling seems to indicate that a website could be a “durable medium” provided that it fulfils the requirements set out by the ECJ.