Cancelling under Distant Selling Regulations

WTFH

halibut2209 wrote: »

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.

OK, so if they supply the information prior to placing the order by means of me clicking a download button, then ticking a box to confirm I've downloaded it, then does that comply with your "however the hell they like"? And by so doing, are you saying they have complied with the law?

unholyangel

WTFH wrote: »

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?

You're still misunderstanding.

They can give information on their website as a first instance, but then have to send (not provide) the information by durable means. Article 4 (of EU directive) relates to information that needs to be provided (not sent) prior to the conclusion of the contract. Article 5 relates to receiving that information in a durable medium. Article 4 does not relate to a durable medium.

In other words, PDF download doesn't satisfy the requirements for article 5 since - regardless whether its durable or not - it hasn't been "sent" to the consumer and thus the retailer has failed to adhere to DSRs.

As for OFT...you've clearly never read the document as the section I quoted from related to consumer declarations, not just "have read and understood". In fact part of what I quote earlier actually says:

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.

Have read and downloaded is still a declaration covered by the above....it says read and/or understood. That means it includes declarations stating "I have read the terms and conditions". And as bolded above, it still requires the consumer to state they have read and downloaded, whether they actually have or not.

halibut2209

That may well comply with the legislation regarding general terms and conditions. But not with the necessary legislation to allow 7 days DSR as opposed to 3 months.

TallArnie

Following your comments, I sent a response to the merchant yesterday detailing that I had followed their recommended returns procedure as described on the paperwork that came with the order, that I had filled in their form as requested, and that this did not state that I should've sent an additional email to cancel my order.

Although they haven't admitted any wrongdoing, I have now received an email from the merchant that "as a matter of goodwill" they've refunded the initial delivery costs.
I know that they may have been obliged any way, but they have been very courteous in the process, so for me that's the matter closed.

Thank you all for your help and suggestions, and for giving me a better understanding of the DSR.

unholyangel

TallArnie wrote: »

Following your comments, I sent a response to the merchant yesterday detailing that I had followed their recommended returns procedure as described on the paperwork that came with the order, that I had filled in their form as requested, and that this did not state that I should've sent an additional email to cancel my order.

Although they haven't admitted any wrongdoing, I have now received an email from the merchant that "as a matter of goodwill" they've refunded the initial delivery costs.
I know that they may have been obliged any way, but they have been very courteous in the process, so for me that's the matter closed.

Thank you all for your help and suggestions, and for giving me a better understanding of the DSR.

Glad you got the result you were hoping for without too much hassle. :j

Ideally they'd have refunded it in the first instance without having to press the issue but the world isn't perfect. Sometimes you just have to play the hand you're dealt.

WTFH

unholyangel wrote: »

You're still misunderstanding.

They can give information on their website as a first instance, but then have to send (not provide) the information by durable means. Article 4 (of EU directive) relates to information that needs to be provided (not sent) prior to the conclusion of the contract. Article 5 relates to receiving that information in a durable medium. Article 4 does not relate to a durable medium.

In other words, PDF download doesn't satisfy the requirements for article 5 since - regardless whether its durable or not - it hasn't been "sent" to the consumer and thus the retailer has failed to adhere to DSRs.

The information is not "given" on the website. When the consumer clicks the button on the ordering page, the information is SENT to them. They don't have to copy a webpage, respond to an email or anything like that. They go and look in their downloads folder on their computer. That's where the information has been sent to. There is no link to a webpage, no variable text and no requirement for the consumer to do anything after they place the order. The information has been sent to them as part of the order process.

How is that wrong?

Let me put it a different way, when you click on a button on a website and a screen pops up saying "Downloading 10MB...time left 3 seconds" is that information being sent to you or not?

(I'm not trying to have an argument, I'm trying to understand what would be considered acceptable)

halibut2209

Just to further muddy the waters.

As you appear happy that downloading a PDF is acceptable under the DSRs, what else would be acceptable.

Downloading a Word 2013 docx file?
Downloading a video where the CEO reads them out?
Downloading the PDF whilst having to use the companies own download manager (like Adobe do)?

(also not trying to have an argument. This is genuinely interesting )

unholyangel

WTFH wrote: »

The information is not "given" on the website. When the consumer clicks the button on the ordering page, the information is SENT to them. They don't have to copy a webpage, respond to an email or anything like that. They go and look in their downloads folder on their computer. That's where the information has been sent to. There is no link to a webpage, no variable text and no requirement for the consumer to do anything after they place the order. The information has been sent to them as part of the order process.

How is that wrong?

Let me put it a different way, when you click on a button on a website and a screen pops up saying "Downloading 10MB...time left 3 seconds" is that information being sent to you or not?

(I'm not trying to have an argument, I'm trying to understand what would be considered acceptable)

Okay let me try and break it right down as much as I can.

Article 4 is information to be provided before contract conclusion - no mention of durable medium. This information can be provided however they like - and does not need to be sent to the consumer.

Article 5 is where the retailer has to send written confirmation (of pre-contractual information, cancellation rights etc) in a durable medium.

Making it available to download (as above, ECJ ruled "given" and "send" in article 5 means it should be passive conduct by the consumer and that if any action is required on consumers part, it does not satisfy article 5) means consumer has to click to download, thus not passive and thus not satisfying article 5.

They can have a download on their site to satisfy article 4, but they would still need to send written confirmation in a durable medium in order to satisfy article 5. And it is non-compliance with article 5 that extends your cancellation period up to 3 months and 7 working days and sees the retailer responsible for return postage costs.

WTFH

Not a Word file - they are insecure and can easily be edited without leaving fingerprints.
Videos are also easy to doctor.
PDF or image file, particularly if it's something like PNG or maybe TIFF. But PDF would be my first choice, because when you edit them you leave artifacts (i.e. fingerprints).

As for emails...
The sender may have sent it, but they have no proof it was received or opened. The recipient might not receive it or it could go into their junk/spam folder, or they could claim not to have received it. The sender has no confirmation or proof.
Emails can be manipulated very easily. Just look on here for the number of people complaining about emails from banks or Amazon or Paypal. The sender has no control or proof that the email the recipient has read is genuine and unaltered.
e.g. Say you receive an email from WTFH today saying that you owe me £100 for my services. Then tomorrow you receive an email from WTFH saying you've been entered in a draw and won £1,000, just provide you bank details for the payment.
If you're not careful, or you don't have good filters on your email, you might think both were genuine. If you had looked, you might have discovered the second one was not from WTFH, but an unholyscammer pretending to be me. You click on something, download something or reply and your bank details don't go to me, but some parasite who is cleaning your account out. I have no control of your Inbox. I only have control of what I send out, up until it leaves my server.

WTFH

unholyangel, so are you saying that there must be two documents? Will one document not be sufficient?
i.e. if the document sent prior to placing the order contains all the information required to fulfil articles 4 & 5, then why would a second document be required?