The Electronic
Commerce (EC Directive) Regulations 2002
The Electronic
Commerce (EC Directive) Regulations, implementing the
EU E-Commerce Directive came into effect on 21 August 2002.
The regulations may apply to you if:
- You sell goods or services to businesses or
consumers on the Internet or by email.
- You advertise on the Internet or by
email.
- You convey or store electronic content or
provide access to a communications network.
The regulations apply to on-line trade and
advertising (eg over the Internet, by email or by mobile phone) whether the
goods or services in question are themselves delivered electronically. The
regulations do not apply to goods themselves, the delivery of goods or services
not provided on-line, nor do they apply to on-line activities that are not of a
commercial nature.
The regulations do not apply to betting,
gaming or lotteries that involve wagering a stake with monetary value but
they do apply to promotional competitions or games whose purpose is to
encourage the sale of goods or services and where any payments that arise serve
only to effect that sale.
You may need to make textual or structural
changes to your Website in order to comply with the new
requirements.
What happens if a
business does not comply?
Non-compliance with the regulations could have
serious implications for your business. Depending on the nature of the
non-compliance, end users may:
- Cancel their order.
- Seek a court order against you.
- Sue you for damages for breach of statutory
duty if they can demonstrate that they have suffered loss as a result of your
failure to comply with your obligations under the regulations.
Advertising or selling
goods or services on-line
If you advertise or sell goods or services
on-line you must provide end users with:
- The full name of your business.
- Your contact details, including an email
address.
- If you belong to a Trade Association whose
register is open to the public you must provide the name of the register and
your registration number (or other means of identification on the
register).
- If you on-line service is subject to an
authorisation scheme (eg an authorisation to advertise or sell financial
services) you must provide the details of the relevant supervisory authority
that has granted the authorisation.
- If your business is part of a profession whose
qualifications are recognised across Europe (eg the Institute of Chartered
Accountants) you must provide:
- Details of any professional body or
institution with which you are registered.
- Details of any professional titles you
hold.
- Details of the Member State in which such
titles were granted.
- A reference to professional rules and how end
users can access them.
- If your on-line business activities are
subject to VAT you must provide details of your VAT number.
- If you contract with non-business customers
you must, prior to an order being placed by the recipient or a service, provide
to that recipient in a clear, comprehensible and unambiguous manner the
following information:
- the different technical steps to follow to
conclude the contract, so that recipients are made aware of what the process
will involve and the point at which they will commit themselves;
- whether or not the concluded contract will be
filed by you and whether it will be accessible;
- the technical means for identifying and
correcting input errors prior to the placing of the order; and
- the languages offered for the conclusion of
the contract.
These requirements do not apply to
contracts concluded exclusively by exchange of email or by equivalent
individual communication.
- If you subscribe to a Code of Conduct,
indicate which you subscribe to and give information on how those codes can be
consulted electronically. The government believes that the codes in question
are those relevant to the order, not to the service providers business in
general.
- Where the recipient of the service places his
order through technological means, you must:
- acknowledge receipt of the order to the
recipient of the service without undue delay and by electronic means;
and
- make available to the recipient of the service
appropriate, effective and accessible technical means allowing him to identify
and correct input errors prior to placing the order.
Practical
suggestions
- The general terms should be directly available
to a customer when he makes an electronic purchase. You can do this by
presenting the purchaser with a Web page of the general terms and an
"Agree" button he must click to finalise the order.
Also reference or hyperlink to the general terms can be made on the order form
and ideally the general terms should be easily accessible from anywhere on the
Website.
- When a customer completes his order and clicks
on the "proceed to check-out" button:
- Give him a preliminary receipt with all items
purchased, their cost and any optional features (such as colour, size
etc).
- Have tick boxes and fields so he can change
his order without having to cancel the entire order. Every time he makes a
change, give him a new preliminary receipt. Make it clear that this is a
preliminary receipt and he must still click on the "Buy" button to
finalise his order.
- Once the customer clicks on the
"Buy" button to finalise his order, you should immediately send him a
follow up receipt via email.
- Accepting payment: you can ask on-line
customers to send you a cheque and you dispatch the goods once the cheque has
been cleared. This may discourage some sales if it is your only means of
accepting payment.
- If you already accept credit card payments for
purchases that are made off-line you can ask your customers to phone or fax
their card details through. Do not ask customers to email credit card
information.
Email
advertising
If you actively promote goods or services
through electronic communication, the following applies to you:
- The message should be clearly identifiable as
a commercial communication.
- The message should clearly identify the person
and/or organisation on whose behalf it is sent.
- If the message contains discounts, promotional
offers, premiums, gifts, promotional competitions or games you must:
- Clearly identify them as such.
- Ensure that any qualifying conditions for such
offers, promotions or games are easily accessible and presented clearly and
unambiguously.
- If you send unsolicited messages you must
ensure that recipients are able to identify them as such as soon as they
receive them. (This is to ensure that recipients or their Internet Service
Providers, van block or delete the message without the need to open and read
it).
Whose law will apply
to cross-border trade?
Generally UK service providers are to comply
with UK laws even if they are providing services in another Member State but
this is subject to a number of qualifications and exclusions, which include in
particular the freedom to choose the law applicable to a contract and
contractual obligations concerning consumer contracts.
Further
guidance
A guide for business on the Electronic Commerce
Regulations can be found at
www.dti.gov.uk/cii/docs/ecommerce/businessguidance.pdf,
and
Guidance for small business on the Electronic
Commerce Regulations can be found at
www.dti.gov.uk/cii/docs/ecommerce/smallbusinessguidance.pdf.
Don't Panic Do E-commerce A Beginner's Guide
to European Law Affecting E-commerce, by Corinna Schulze and Jeffrey
Baumgartner is a basic guidebook to European Legislation related to e-business.
It explains key legislation, provides examples and offers suggestions. You can
download a free copy by visiting
www.jpb.com/ecommerce/dontpanic.html.
If you are an Internet
trader dealing in financial services
You will need to know the Electronic
Commerce Directive (Financial Services and Markets) Regulations 2002 which
amend the Financial Services and Markets Act 2000 which will apply to you
regardless of where in the European Economic Area the services are actually
provided.
Further information can be found on the
Financial Services Authority Website at www.fsa.gov.uk.
Trading Standards Division, 3rd Floor, Wallasey Town Hall, Brighton Street, Wallasey, Wirral CH44 8ED
Telephone: (0151) 691 8020 Fax: (0151) 691 8098
Internet World Wide Web http://www.tradingstandards.gov.uk/wirral/
Electronic Mail: tradingstandards@wirral.gov.uk
