Next Online Credit Account - Legal Advice Please

danielanthony

But you havent signed a credit agreement.

Next stung me with an account after I tried to buy some electrical applicances, they sent me a credit agreement form some days later which they wanted me to sign and return. I didnt sign or return it. So is the credit agreement still valid?

bingy_burge

danielanthony wrote: »

But you havent signed a credit agreement.

Next stung me with an account after I tried to buy some electrical applicances, they sent me a credit agreement form some days later which they wanted me to sign and return. I didnt sign or return it. So is the credit agreement still valid?

I expect so as you ticked the box next to the terms and conditions!

Be careful where you click.

never-in-doubt

danielanthony wrote: »

But you havent signed a credit agreement.

Next stung me with an account after I tried to buy some electrical applicances, they sent me a credit agreement form some days later which they wanted me to sign and return. I didnt sign or return it. So is the credit agreement still valid?

You don;t need to sign now, the tick can do it for you only on online applications though (as per above post).

chattychappy

The root of this problem is that CRA records are becoming so important that people feel a sense of "ownership" of their record and like to "maintain" it like a cherished possession. Therefore they resent something that they perceive has a detrimental impact on it.

Anyway the OP asked for legal advice. Of course you can't get "proper" legal advice on a forum. But I believe he may wish to take it up with the Information Commissioner. As I have said many times before - just because something is written in T&Cs, doesn't mean that it's legally effective (or binding in the case of a contract). Statute often intervenes to save the little man from himself. Companies love the way people get the wrong end of this particular stick because it's an excellent way of dealing with the disgruntled. It's a pity that some posters, in their attempts to be holier than thou fall into the same trap.

Now that I have established myself as extremely holy in these matters without a hint of hypocrisy... here is some relevant law if the OP wishes to take it further. From his/her original post, it seems there is a case to be made that the data obtained in the course of the online session was not obtained fairly. The OP thought he was entering data so as to place an online order, not open a credit account.

I have added the emphasis..

Data Protection 1998
4. (1) References in this Act to the data protection principles are to the principles set out in Part I of Schedule 1.
(2) Those principles are to be interpreted in accordance with Part II of Schedule 1
....
(4) ... it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.


Schedule 1
Part I
1. Personal data shall be processed fairly and lawfully


Part II 1(1) In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purpose or purposes for which they are to be processed.

never-in-doubt

chattychappy wrote: »

The root of this problem is that CRA records are becoming so important that people feel a sense of "ownership" of their record and like to "maintain" it like a cherished possession. Therefore they resent something that they perceive has a detrimental impact on it.

Nice post chatty

However, can I query something with you, the website has a disclaimer at the bottom and therefore renders the DPA quote above ineffective because they clearly met their obligations under the CCA1974 & DPA1998 (the appropriate terms as to how they use your information)....

Secondly, you are aware the ICO have no powers to do anything - only advise therefore legally the OP has no recourse because no law has been broken and the ICO will find in favour of the lender (Next) as they do have a disclaimer.

I'm not sticking up for Next - far from it (you know me lol) - i'm just saying the DPA doesn't come into this as the website met the criteria for sharing information (unless you started getting hassled for previous debts etc in which case you could argue then - but it'd be a civil case that you'd have to pay for!).

Ok so lets assume I add something to my basket and complete the steps to register.... I then end up on the following screen:



As is clear from the above - you're agreeing to them opening a credit account for you - this is clear before you click the complete button! This therfore does conform with DPA Regs.

To confirm, click the Terms and you get this screen: http://www.next.co.uk/Help/WinHelp.asp?Flg=SC

Look at section 5:

Use of Credit Reference Agency Information and sharing of credit information.

In the interests of responsible lending and for security purposes we carry out searches with credit reference agencies when you register with Next and further searches may be carried out before deciding whether to accept orders and/or grant further credit. The agencies record these searches. We also share information about you and the conduct of your account with credit reference agencies, other lenders and relevant third parties.

chattychappy

never-in-doubt wrote: »

However, can I query something with you, the website has a disclaimer at the bottom and therefore renders the DPA quote above ineffective because they clearly met their obligations under the CCA1974 & DPA1998 (the appropriate terms as to how they use your information)....

Well... the disclaimer doesn't exactly help the OP's case, but I disagree that they have "clearly met their obligations". I don't feel it gets Next off the hook.

The check-box offers free delivery if you order a directory. Above the check-boxes it says open an account today if you request a directory. Actually on my first reading I read it as an invitation to open an account if you requested the directory, not that requesting a catalogue would be considered an an account application. Either way, I think the intention is to mask the nature of the transaction and the use your personal data is being put to.

So logically Next have a case, but the DP principles are drawn in terms of fairness. It is not enough to be logical, the bar is set higher for DPA compliance. Not being misled as to purpose is given as a particular example of the principle not being complied with - the "get up" of the site steers you into the belief you are supplying data for the purposes of a simple purchase.

never-in-doubt wrote: »

To confirm, click the Terms and you get this screen: http://www.next.co.uk/Help/WinHelp.asp?Flg=SC

Look at section 5:

I think the content of the terms and conditions are irrelevant here. If the OP has been misled as to the nature of the agreement - ie believes fundamentally he is supplying data to make a purchase - then he might well take a view that he is willing to accept whatever T+Cs Next impose on such a transaction (as modified by distance selling, consumer protection etc) and would not expect them to go beyond that. Ie it is reasonable for him to assume that T+Cs are within the domain of a purchase transaction and therefore not to click through to see them.

Just once again, I would like to remark I'm focussing on Data Protection law here - the way Next obtained the OP's data and used it to do a search. I'm not saying that any particular contract is void or commenting on whether CCA legislation has been complied with.

never-in-doubt wrote: »

Secondly, you are aware the ICO have no powers to do anything - only advise therefore legally the OP has no recourse because no law has been broken and the ICO will find in favour of the lender (Next) as they do have a disclaimer.

The ICO can investigate if the rules have been broken - cancel registrations, issue notices etc. Whether the ICO would find in favour of Next depends on whether they "buy" my logic above. If they don't, then they would do nothing except write a polite letter pointing out the disclaimers!

I suggested the ICO, because it appears to me that the DPA has been contravened, but in the event the OP has not suffered any loss. I don't know whether one extra search is likely to impact his mortage application in the future, but it seems not.

IF he had suffered a tangible loss, then I wouldn't bother with the ICO for the reasons you say. I'd sue for damages under s13(1) of the DPA

13 Compensation for failure to comply with certain requirements
(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

And of course, our OP is so upset by all this...
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—
(a) the individual also suffers damage by reason of the contravention


NB note the Act only permits a claim for distress if it can be established there was damage - then both can be claimed for. Distress alone is not enough!

Suzy_S_2

Thank you Sara - I just experienced the same thing with no apology from Next and it makes me furious that they could potentially take advantage of those less able to manage their funds by automatically setting up an account like this. Seriously irresponsible in these times.

never-in-doubt

chattychappy wrote: »

Well... the disclaimer doesn't exactly help the OP's case, but I disagree that they have "clearly met their obligations". I don't feel it gets Next off the hook.

Fair enough, i'm no DPA expert so will trust your judgement on this one matey..... I don't agree with the website or the sneaky way they do open accounts but I don't think they're breaking the law as such.

Something isn't quite right though, they have announced changes to their site so obviously something was amiss - how often do retailers change a website just cos of a few hundred complaints? Hmmmm

I think if they were breaking the law someone would have pulled them by now, that's all - thus my logic that the disclaimer will protect them from any action - but as you say when you're talking DPA things change somewhat.

So to summarise, I do feel they are being sneaky but not acting unlawfully in the eyes on the CCA. However with regard to DPA I feel they meet their obligations by way of the disclaimer but it could be a contentious issue for the reasons you mention.

But I do kinda agree with your points - believe it or not, but fail to see how a company like Next could 'blag' this for soooooo long unnoticed...!

olly300

One thing you need to do when complaining about firm's sneaky practices is find all the relevant regulators that are involved.

In this case due to credit accounts being set up, Next Retail Ltd are also regulated by the FSA.

If one customer has done their homework or even a consumer group has raised a complaint with the FSA, then they are legally obliged to look into Next Retail's T&Cs and see if they breach any consumer acts such as The Unfair Terms in Consumer Contracts Regulations 1999.

This would go wider than the initial complaint so all T&C are looked at. If there is a potential breach Next would then "agree" to change either their T&Cs and/or how their site operates by a certain time.

I know this from raising a complaint about a company regulated by the FSA and from someone who works for them.

supadupa1

next are at fault here. i was interested to read that they promised to change their system in feb, 2010 as they have not done so. the same thing happened to me just the other day. the site implied that will you get credit checked if you choose the free delivery option, and pay for the catalogue. therefore, i chose to pay for the delivery and still a credit search was carried out and an account opened, without my explicit agreement.