Cancelling under Distant Selling Regulations

WTFH

halibut2209 wrote: »

You are arguing something entirely different. And your own quote says "given to him". Providing a link to a download is not giving.

Where does the ECJ ruling state that a PDF is durable medium?

Providing a link which is a download - not a link to a webpage! You're getting hung up on the term "link" a hyperlink is a link. Whether it goes to a webpage or a download or an executable, it is still a link. If you click on a link and it opens a PDF file, then the link has gone to a download. The consumer now has (in the words of the ECJ) the information "on another durable medium available and accessible to him"

The ECJ ruling does not list what it considers specifically valid forms of "durable medium". There's currently a working party deciding if the rules should state what a durable medium is to clarify that problem.
According to Article 2(10) of Directive 2011/83, ‘durable medium’ means ‘any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored’.

WTFH

unholyangel wrote: »

You don't seem to understand. The ECJ said the information wasn't given in line with DSRs based on 2 elements. Firstly because it was not given to the consumer, they had to act to obtain it and secondly because providing a link in a email is not durable.

The first part of that (about passive conduct by the consumer) is the relevant part. Since if you have to download something, you have to act to obtain the information, it has not been given therefore doesn't fulfil the requirements of the DSRs.

Can you provide the exact quote in the ECJ where this is stated as two seperate things?

halibut2209

WTFH wrote: »

So, you're saying it's unlawful for a company to give a consumer their terms and conditions before the consumer is allowed to place an order?

Sorry, before I commit to buying something, I want to know what the terms and conditions are. If I don't know them, I'm going to think twice about buying - and that is exactly what the ECJ ruling is about - making sure the consumer is able to go through the T&C of the business in a static document form, such as a PDF which they have downloaded and saved on their own hard drive.

Once you've finished understanding the ECJ ruling, take a look at the OFT description of Durable Medium. Webpages are not acceptable, neither are links to webpages. But if you don't know the difference between a webpage and a document, there's no point in me trying to educate you further.

And this is why you are arguing a different thing. There is a difference between legal rights and a business' T&Cs. The T&Cs CANNOT overrule your legal rights. So if the T&C's contradict that, then that part of it is meaningless.

So no, I'm not saying that ' it's unlawful for a company to give a consumer their terms and conditions before the consumer is allowed to place an order'. I'm saying that the law supercedes T&Cs

halibut2209

WTFH wrote: »

According to Article 2(10) of Directive 2011/83, ‘durable medium’ means ‘any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored’.

So that would cover an email or as part of the invoice, but not a generic PDF

unholyangel

WTFH wrote: »

Can you provide the exact quote in the ECJ where this is stated as two seperate things?

The ECJ upheld the Advocate General's opinion of March 2012 and decided that the requirements of the DSD were not met in such instances. On its facts, the case is not particularly surprising. There had been no attempt to provide information by Content Services other than by posting information on its normal website content and providing a link to it. However, it is the reasoning of the judgment that has the potential to go far wider than the facts themselves.

The decision rests on two elements:
1. What does the DSD require when it refers to information being "received" (or given) and how does that impact on the manner in which information is being made available to customers?
2. What is the nature of information for it to be in a durable medium?

On the first element, the ECJ found that the use of the term "receive" in Article 5 (in relation to the provision of durable information) was deliberately different to that used in Article 4 (dealing with pre-contractual information) which uses the word "provide". Whereas "provide" could be read more flexibly, the Court found that the use of the word "receive" and "given" implied the need for transmission of the information and passive conduct by the customer. The Court found that a link sent or provided to a customer could not satisfy this requirement since the customer must act (i.e. click on the link) in order to obtain the information.

The bits I have bolded are the relevant parts.

bod1467

Badoom, and indeed, Tish.

WTFH

[FONT=&quot]

unholyangel wrote: »

The bits I have bolded are the relevant parts.

Can you give me a link to the EU directive page where you got that from, it doesn’t look like an EU one, more like a lawyer’s report? Googling it, it looks like you went to this PDF to get it:
http://addleshaw-goddard.org/cdc/asset_store/document/durable_medium_12123.pdf

So, let me quote a few other sections which clearly highlight the difference between your interpretation of the results, and what the case was about...

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"After signing up, a confirmation e-mail was sent containing a link to a web address, with a username and password (this enabled access to the area of the website that enabled downloads to be accessed. The e-mail did not contain the required information.”

“The question referred to the ECJ was whether the requirements of Article 5 were met where the required information is made available to the consumer by means of a hyperlink on the trader’s website, which is contained in a line of text that the consumer must mark as read by ticking a box in order to be able to enter into a contractual relationship?”

Now, note (should you care to), that the tick box in question was just to say you had READ the document. Not “Read and downloaded”

(interestingly, the article you quoted goes on to contradict some of the other posts on here about what a durable medium is, but I won't bother arguing that point)

unholyangel

WTFH wrote: »

[FONT=&quot]Can you give me a link to the EU directive page where you got that from, it doesn’t look like an EU one, more like a lawyer’s report? Googling it, it looks like you went to this PDF to get it:[/FONT]
[FONT=&quot][FONT=&quot]http://addleshaw-goddard.org/cdc/asset_store/document/durable_medium_12123.pdf[/FONT][/FONT]
[FONT=&quot]
[FONT=&quot]So, let me quote a few other sections which clearly highlight the difference between your interpretation of the results, and what the case was about...[/FONT]

[/FONT][FONT=&quot][/FONT]
"After signing up, a confirmation e-mail was sent containing a link to a web address, with a username and password (this enabled access to the area of the website that enabled downloads to be accessed. The e-mail did not contain the required information.”

“The question referred to the ECJ was whether the requirements of Article 5 were met where the required information is made available to the consumer by means of a hyperlink on the trader’s website, which is contained in a line of text that the consumer must mark as read by ticking a box in order to be able to enter into a contractual relationship?”

Now, note (should you care to), that the tick box in question was just to say you had READ the document. Not “Read and downloaded”

(interestingly, the article you quoted goes on to contradict some of the other posts on here about what a durable medium is, but I won't bother arguing that point)

You seem to be thinking that the lawyers report is somehow wrong or corrupted. I quoted that article as its less "long winded" than the EU document - which you could have found easily just by googling "durable medium".
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62011CJ0049:EN:HTML

31 First, it should be examined whether, in the context of that business practice, the relevant information is ‘given’ to the consumer or ‘received’ by him, within the meaning of Article 5(1) of Directive 97/7.

32 In that regard, it must be stated that neither Directive 97/7 nor the documents relevant for its interpretation, such as the travaux pr!paratoires, provide clarification of the exact scope of the concept of ‘receive’ and ‘given’ in Article 5(1) of the directive. Therefore, the meaning of those terms must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (see, to that effect, Case C‑336/03 easyCar [2005] ECR I‑1947, paragraphs 20 and 21).

33 As regards the usual meaning in everyday language, it should be noted, as the Commission did, that the terms ‘receive’ and ‘given’, used in that provision, refer to a process of transmission, the first from the point of view of the consumer and the second from that of the supplier. In a process of transmission of information, it is not necessary for the recipient of the information to take any particular action. By contrast, where a link is sent to a consumer, he must act in order to acquaint himself with the information in question and he must, in any event, click on that link.

34 As regards the context in which the terms in question are used, it should be recalled that Article 5(1) of Directive 97/7 seeks to ensure the communication to the consumer of the information necessary to the proper performance of the contract and, above all, to the exercise of his consumer rights, in particular his right of withdrawal. As the Italian Government states, that provision contains a series of requirements intended to protect consumers, who are the weak parties in contractual relations concluded at a distance.

35 It should also be noted in that regard that, whereas the European Union legislature opted, in Article 4(1) of Directive 97/7, in the vast majority of the linguistic versions, for a neutral formulation, according to which the consumer is to be ‘provided’ with the relevant information, it chose, by contrast, a term with greater implications for the business in Article 5(1) of that directive, according to which the consumer must ‘receive’ confirmation of that information. That term expresses the idea that, regarding the confirmation of information to consumers, passive conduct by those consumers is enough.

36 The purpose of Directive 97/7 is to afford consumers extensive protection, by giving them a number of rights in relation to distance contracts. The objective of the European Union legislature is, as is apparent from recital 11 in the preamble to the directive, to avoid a situation where the use of means of distance communication leads to a reduction in the information provided to the consumer.

37 In those circumstances, it must be held that, where information found on the seller’s website is made accessible only via a link sent to the consumer, that information is neither ‘given’ to that consumer, nor ‘received’ by him, within the meaning of Article 5(1) of Directive 97/7.

38 Secondly, it must be examined whether a website the information of which is accessible to consumers via a link provided by the seller must be regarded as a ‘durable medium’, within the meaning of Article 5(1) of Directive 97/7.

As I have said, there was 2 elements to the question posed. You keep focusing on the 2nd part of durable medium as opposed to the first part which states in order for the regulations to be met, the information needs to be given to the consumer with passive conduct by the customer.

Clicking on a link - whether it be to a website or a document is still committing the same act in order to get the T&C's, the ECJ ruled that because action was required by the consumer.....the retailer had not complied with the DSRs.


You're still also ignoring all the information I posted from OFT relating to unfair contract terms which cover the usage of such declarations. OFT object to such declarations as their only purpose is to bind the consumer whether they have had read the T&C's or not.

I'll repeat:

If consumers are routinely told or given to understand that they must say one thing for the contract to go ahead, the declaration is just as likely to be considered unfair and legally ineffectual as if the written words gave no apparent choice.

18.5.5 'Have read and understood' declarations. Declarations that the consumer has read and/or understood the agreement give rise to special concerns. The Regulations implement an EU Directive saying that terms must be clear and intelligible and that consumers must have a proper opportunity to read all of them (see Part IV). Including a declaration of this kind effectively requires consumers to say these conditions have been met, whether they have or not. This tends to defeat the purpose of the Directive, and as such is open to serious objection.

WTFH

The link isn't sent to the customer. That is key - so the ruling about a link being emailled is not relevant to the ECJ. You've even bolded the part where they say "In a process of transmission of information, it is not necessary for the recipient of the information to take any particular action. "
To me that says that if the durable medium is supplied as part of the order process (while in the order process, and not seperately by an email), then there is no particular action the recipient has to perform.
If the information is provided outside of the order process, then the recipient does have to take a particular action.

Also, regarding the OFT document, that does not talk about downloading anything. 18.5.5. is about "read and understood", not "read and downloaded".

Sorry, I disagree with you, but it appears we are both reading the same documents and getting different conclusions.

Can you tell me how you would see a website could supply the terms and conditions prior to placing an order in a way that would be acceptable to you?

halibut2209

That's irrelevant. Prior, they can supply them however the hell they like. What the law states is that the DSR information must be given to the customer otherwise they have 3 months instead of 7 days.