The European Union's E-commerce Directive orders companies to
publish certain information about themselves on their websites. The
measures are intended to protect consumers and apply to almost all
commercial websites, not just those that take payments.
Companies must include an email address and a geographic address
on their website. The ECJ has ruled, though, that something else is
required. That could be the provision of a telephone number but it
does not have to be. They have to provide some other way for a
consumer to communicate with the company in a direct and effective
manner.
The ECJ has ruled that a web form filled in by a consumer and
responded to by the company via email was acceptable in a case
where the company answered queries within 30 to 60 minutes. It
stopped short of suggesting that all companies should respond to
web form queries within 60 minutes.
The German Federation of Consumers' Associations (Bundesverband)
took a court case to try to force online insurance seller deutsche
internet versicherung (DIV) to publish its telephone number on its
website.
DIV did give policy buyers the phone number, but only after the
conclusion of a contract.
While a German court agreed with the Bundesverband, DIV won its
case on appeal. The Bundesverband brought an appeal on a point of
law, and the ECJ was asked to clarify the meaning of the
Directive.
Article 5(1) of the E-Commerce Directive says that
companies:
"shall render easily,
directly and permanently accessible to the recipients of the
service and competent authorities, at least the following
information:
(a) the name of the service provider;
(b) the geographic address at which the service provider is
established;
(c) the details of the service provider, including his electronic
mail address, which allow him to be contacted rapidly and
communicated with in a direct and effective manner".
The ECJ was asked to decide whether this part of the Directive
meant that anything more than an email and postal address was
necessary and, if so, whether the additional method of
communication had to be a telephone number.
The ECJ said that another means of communication did have to be
offered. "It is clear from all those considerations that under
Article 5(1)(c) of the Directive the service provider is required
to offer recipients of the service a rapid, direct and effective
means of communication in addition to his electronic mail address,"
it said.
It found that though that means of communication could be a
phone number, it did not have to be.
"It is clear that there are forms of communication other than by
telephone able to satisfy the criteria of direct and effective
communication referred to," said the ruling. "[The] information
does not necessarily have to be a telephone number. That
information may be in the form of an electronic enquiry template
through which the recipients of the service can contact the service
provider via the internet, to whom the service provider replies by
electronic mail."
The ECJ said, though, that the E-commerce Directive was intended
to promote, not restrict, electronic commerce, and that if a person
was going to be out of contact with electronic networks they had to
be given an alternative communications option.
"[The communications option can be a web form] except in
situations where a recipient of the service, who, after contacting
the service provider electronically, finds himself without access
to the electronic network, requests the latter to provide access to
another, non electronic means of communication," said the
judgement.
The ECJ said that such situations might occur when a query is
submitted and the user goes on a "a journey, holiday or a business
trip".
Rapid response
The ECJ ruling implies that where a contact form is offered as
an additional means of contact, answers should be prompt.
It said that effective communication does not mean that the
response given to a question posed must be instantaneous. "On the
contrary, a communication is to be regarded as effective if it
permits adequate information to be obtained within a period
compatible with the needs or legitimate expectations of the
recipient," it said.
Personal contact at the premises of a web business with a person
in charge or fax would also count as direct and effective forms of
communication, it said. But where web forms are offered, it appears
that queries should be answered quickly.
"It is true that an electronic enquiry template may be regarded
as offering a direct and effective means of communication … where,
as is clear in the case in the main proceedings … the service
provider answers questions sent by consumers within a period of 30
to 60 minutes," it ruled.
The ECJ did not elaborate on timescales that may be appropriate
for other businesses.
The UK position
The E-commerce Directive was implemented into the UK by the
E-commerce Regulations. The Regulations' relevant wording is almost
identical to the Directive's.
The UK Regulations require a website to list, in addition to its
postal address, "the details of the service provider, including his
electronic mail address, which make it possible to contact him
rapidly and communicate with him in a direct and effective
manner".
Government guidance on the UK Regulations said that common sense
should determine the contact details to be provided. It was silent
on the issue of needing something more than an email and postal
address.
"The Regulations also do not prescribe what is meant by details
which make it possible to contact the service provider 'rapidly' as
this may vary according to circumstances," said the guidance from
2002. "The enforcement authorities are expected to treat this as a
question of common sense appropriate to the particular service
provided but also to place the onus on the service provider to
demonstrate that he has complied with this requirement."
Struan Robertson, a technology lawyer with Pinsent Masons and
editor of OUT-LAW.COM, described the ECJ ruling as impractical. "We
always thought that a postal address and an email address would
suffice," he said. "This ruling will come as a shock to many
businesses, though it will be welcomed by many consumers."
"The ruling could be interpreted as saying that businesses
should have a team of people ready to answer customers' questions –
which would be a huge problem for lots of companies," he said. "I
can't see eBay opening a call centre just to deal with European
users' queries."
"While many consumers do want that, it's totally impractical for
many web-based operations. Unfortunately, the ECJ has given very
little guidance on acceptable response times. If DIV's response
time had been 48 hours instead of 60 minutes, would the outcome
have been different? Does it expect a response only during normal
office hours or should it be round the clock? Does it expect less
of a website that doesn't sell anything than one that does? We are
not told."
Offering a web form and sending an automated response is
unlikely to comply, said Robertson. "That would not be 'effective'
communication," he said. "The ECJ seems to expect a more personal
service. It even seems to be saying that individuals have a right
to submit a question through a form and ask for an answer by
telephone if that's more convenient for their travel plans, which
seems remarkable."
Robertson said that if the issue ever comes before a UK court,
judges will be under pressure to follow the DIV ruling.
"A judge in a UK court would be obliged to interpret the
E-commerce Regulations as far as possible in accordance with EU
law. This ECJ ruling has become the authority for what the
Directive really means. So the best hope for businesses that fear
this judgment is that the issue is never raised in a UK court," he
said. "If it is raised, the battle will surely focus on just how
fast a business must respond to web form queries."
Trading Standards or the Office of Fair Trading could take
action against a company that does not comply with the judgment,
arguing that the company is in breach of the UK Regulations. Any
user of a website that fails to comply with the duty could also go
to court and seek damages for the company's breach of its statutory
duty.
But such actions may never be raised.
"Consumers are unlikely to show any loss – so they'd be doing it
on a point of principle, to win an order for the company to change
its way of doing business," he said. "So far, we've heard nothing
from Trading Standards or the OFT that suggests a need for more
than an email address and a postal address on a website."
The OFT told OUT-LAW today that the issue is one for BERR to
consider, not the OFT. BERR had not responded to OUT-LAW at the
time of publication.
Editor's note, 05/11/2008: BERR told OUT-LAW
today that it is still considering ECJ the decision. "We are
currently assessing the impact of the ECJ's decision and what it
means for UK e-businesses," a spokesman said. "We will respond with
more detail in due course."
