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unholyangel

Sandtree said:

Durable medium can be email or within a personalized "account" space on their website but doesn't include just a link to their generic terms... obviously many companies do sent long T&Cs and we just delete/file them without reading.

Unless their terms say they will remind you in advance or its a regulated product like Insurance then generally its your responsibility to remember not for them to remind you. 

Durable medium needs to be something that cannot be amended. Websites aren't durable for that reason, that they can be amended. 

George_Michael

unholyangel said:

Sandtree said:

Durable medium can be email or within a personalized "account" space on their website but doesn't include just a link to their generic terms... obviously many companies do sent long T&Cs and we just delete/file them without reading.

Unless their terms say they will remind you in advance or its a regulated product like Insurance then generally its your responsibility to remember not for them to remind you. 

Durable medium needs to be something that cannot be amended. Websites aren't durable for that reason, that they can be amended. 

Websites can sometimes meet the requirements for a durable medium:
Durable medium | FCA

3. Interactive and secure websites

The criteria can be met by an interactive website. For example, users could log in through a secure area, where they could gain access to an interactive disclosure tool. This interactive website can constitute a durable medium as long as it is addressed personally, remains accessible in future through the secure login, and offers the unchanged reproduction of information in previous periods.

unholyangel

George_Michael said:

unholyangel said:

Sandtree said:

Durable medium can be email or within a personalized "account" space on their website but doesn't include just a link to their generic terms... obviously many companies do sent long T&Cs and we just delete/file them without reading.

Unless their terms say they will remind you in advance or its a regulated product like Insurance then generally its your responsibility to remember not for them to remind you. 

Durable medium needs to be something that cannot be amended. Websites aren't durable for that reason, that they can be amended. 

Websites can sometimes meet the requirements for a durable medium:
Durable medium | FCA

3. Interactive and secure websites

The criteria can be met by an interactive website. For example, users could log in through a secure area, where they could gain access to an interactive disclosure tool. This interactive website can constitute a durable medium as long as it is addressed personally, remains accessible in future through the secure login, and offers the unchanged reproduction of information in previous periods.

Unfortunately FCA don't decide, the courts do and they've already said websites don't count. 

If you read through the bottom part of that article, it hints at why. It's not just that you can reproduce it later providing they don't change it. It needs to be the equivalent of paper (this is what the case law on it says), physically unable to be changed after the fact.

George_Michael

unholyangel said:

George_Michael said:

unholyangel said:

Sandtree said:

Durable medium can be email or within a personalized "account" space on their website but doesn't include just a link to their generic terms... obviously many companies do sent long T&Cs and we just delete/file them without reading.

Unless their terms say they will remind you in advance or its a regulated product like Insurance then generally its your responsibility to remember not for them to remind you. 

Durable medium needs to be something that cannot be amended. Websites aren't durable for that reason, that they can be amended. 

Websites can sometimes meet the requirements for a durable medium:
Durable medium | FCA

3. Interactive and secure websites

The criteria can be met by an interactive website. For example, users could log in through a secure area, where they could gain access to an interactive disclosure tool. This interactive website can constitute a durable medium as long as it is addressed personally, remains accessible in future through the secure login, and offers the unchanged reproduction of information in previous periods.

Unfortunately FCA don't decide, the courts do and they've already said websites don't count. 

If you read through the bottom part of that article, it hints at why. It's not just that you can reproduce it later providing they don't change it. It needs to be the equivalent of paper (this is what the case law on it says), physically unable to be changed after the fact.

Just because a website wasn't suitable for sending and storing the required information in the past doesn't mean that it would always be the case. Technology changes all the time and legislation and legal requirements can also change to allow for this.
Do you have any links to court cases that have stated that websites can never class as meeting the definition for a durable medium?

Apart from the FCA, Trading standards have also stated that in some cases, websites are fine:
Trading Standards Institute Advice | Consumer contracts: distance sales | London Borough of Bromley

A durable medium is defined as paper, email or other medium that:

• allows the information to be addressed personally to the recipient
• enables the recipient to store the information and access it for future reference (this includes you placing the information in your customer's personal account area of your website, which they can access by logging in)
• allows unchanged reproduction of this information

and there are plenty of other websites that state the same thing.
Are you saying that they are all incorrect?
There's this one from the EU (which refers to a court case which stated that websites can meet the requirements) : (and as you know, the CCR's and plenty of other legislation is based on EU directives):
EUR-Lex - 62015CC0375 - EN - EUR-Lex (europa.eu)

Finally, the qualification of an internet website as a ‘durable medium’ depending on its functional characteristics has also been confirmed by the EFTA Court in Inconsult Anstalt v Finanzmarktaufsicht, ( 15 ) in the context of a case involving the interpretation of the concept of ‘durable medium’ under Directive 2002/92. In that case, the EFTA Court declared that, whereas ‘ordinary’ websites would not comply with the requirements to be considered a durable medium, ( 16 )‘sophisticated’ websites may, if they comply with the requirements laid down in the applicable definition. ( 17 ) However, recital 23 of Directive 2011/83 lists emails among the examples of durable media. Moreover, Directive 2007/64 has arguably reversed the reticent approach towards internet sites. Recital 24 of that directive now explicitly includes as an example of ‘durable media’ those internet sites that ‘are accessible for future reference for a period of time adequate for the purposes of information and allow the unchanged reproduction of the information stored’.

Durable medium - Consumer Credit Compliance

3. Interactive and secure websites

The criteria can be met by an interactive website. For example, users could log in through a secure area, where they could gain access to an interactive disclosure tool. This interactive website can constitute a durable medium as long as it is addressed personally, remains accessible in future through the secure login, and offers the unchanged reproduction of information in previous periods.

davidmcn

George_Michael said:

Durable medium - Consumer Credit Compliance

3. Interactive and secure websites

The criteria can be met by an interactive website. For example, users could log in through a secure area, where they could gain access to an interactive disclosure tool. This interactive website can constitute a durable medium as long as it is addressed personally, remains accessible in future through the secure login, and offers the unchanged reproduction of information in previous periods.

Not the same law, but this sort of thing is acceptable for insurance policies - insure with Admiral, for example, and you get the policy wording by logging in and finding the version corresponding with when you took your policy out, they don't email or post it to you.

George_Michael

davidmcn said:

George_Michael said:

Durable medium - Consumer Credit Compliance

3. Interactive and secure websites

The criteria can be met by an interactive website. For example, users could log in through a secure area, where they could gain access to an interactive disclosure tool. This interactive website can constitute a durable medium as long as it is addressed personally, remains accessible in future through the secure login, and offers the unchanged reproduction of information in previous periods.

Not the same law, but this sort of thing is acceptable for insurance policies - insure with Admiral, for example, and you get the policy wording by logging in and finding the version corresponding with when you took your policy out, they don't email or post it to you.

I realise that but the only reason I posted it because their explanation of:

Various EU regulatory provisions require that a firm must provide certain information to a client in writing, either on paper or in another durable medium

and if a website can be considered as durable for one section of law, I don't see why a judge wouldn't consider it acceptable for other legislation.

I know that in the past, websites were never acceptable for providing the required information but technology changes all the time, hence why the link I gave to the EU def for a durable medium stated that Directive 2007/64 had been updated and can now include some "sophisticated websites" .
I know that the UK is no longer in the EU but we were when that document was issued and our current consumer laws are heavily based on and influenced by EU directives.

unholyangel

George_Michael said:

Just because a website wasn't suitable for sending and storing the required information in the past doesn't mean that it would always be the case. Technology changes all the time and legislation and legal requirements can also change to allow for this.
Do you have any links to court cases that have stated that websites can never class as meeting the definition for a durable medium?

Apart from the FCA, Trading standards have also stated that in some cases, websites are fine:
Trading Standards Institute Advice | Consumer contracts: distance sales | London Borough of Bromley

A durable medium is defined as paper, email or other medium that:

• allows the information to be addressed personally to the recipient
• enables the recipient to store the information and access it for future reference (this includes you placing the information in your customer's personal account area of your website, which they can access by logging in)
• allows unchanged reproduction of this information

and there are plenty of other websites that state the same thing.
Are you saying that they are all incorrect?
There's this one from the EU (which refers to a court case which stated that websites can meet the requirements) : (and as you know, the CCR's and plenty of other legislation is based on EU directives):
EUR-Lex - 62015CC0375 - EN - EUR-Lex (europa.eu)

Finally, the qualification of an internet website as a ‘durable medium’ depending on its functional characteristics has also been confirmed by the EFTA Court in Inconsult Anstalt v Finanzmarktaufsicht, ( 15 ) in the context of a case involving the interpretation of the concept of ‘durable medium’ under Directive 2002/92. In that case, the EFTA Court declared that, whereas ‘ordinary’ websites would not comply with the requirements to be considered a durable medium, ( 16 )‘sophisticated’ websites may, if they comply with the requirements laid down in the applicable definition. ( 17 ) However, recital 23 of Directive 2011/83 lists emails among the examples of durable media. Moreover, Directive 2007/64 has arguably reversed the reticent approach towards internet sites. Recital 24 of that directive now explicitly includes as an example of ‘durable media’ those internet sites that ‘are accessible for future reference for a period of time adequate for the purposes of information and allow the unchanged reproduction of the information stored’.

Durable medium - Consumer Credit Compliance

3. Interactive and secure websites

The criteria can be met by an interactive website. For example, users could log in through a secure area, where they could gain access to an interactive disclosure tool. This interactive website can constitute a durable medium as long as it is addressed personally, remains accessible in future through the secure login, and offers the unchanged reproduction of information in previous periods.

Funny you should mention that EU case, because that's exactly what I'm basing my post on.

Paragraphs 32 and 33 tell us:

The substantive requirements for a support or device to be considered as a ‘durable medium’ are contained in the definition given in Article 4(25) of Directive 2007/64: (a) it should enable the storage of information personally addressed to the customer in a way accessible for future reference for an adequate period of time and (b) it should guarantee the unchanged reproduction of the stored information

 That concept, first coined by Directive 97/7/EC in the field of distance contracts, ( 7 ) provides an alternative to paper as the support or medium for information.

What website do you know of that guarantees unchanged reproduction? The second paragraph specifies that the distance selling directive required that it be an alternative to paper (I mentioned that in my earlier posts, remember).

Then at paragraphs 45 and 46:

Finally, the qualification of an internet website as a ‘durable medium’ depending on its functional characteristics has also been confirmed by the EFTA Court in Inconsult Anstalt v Finanzmarktaufsicht,  in the context of a case involving the interpretation of the concept of ‘durable medium’ under Directive 2002/92. In that case, the EFTA Court declared that, whereas ‘ordinary’ websites would not comply with the requirements to be considered a durable medium, ‘sophisticated’ websites may, if they comply with the requirements laid down in the applicable definition. So not that they do meet it, just that they may - if they meet the requirements. It then goes on to talk about the requirements of the PSD. Then at paragraph 55:

Once the issue of storability of information for an adequate period has been addressed, the requirement of ‘unchanged reproduction’ must also be fulfilled. Unchanged reproduction means that it ought to be technically impossible for the payment service provider to unilaterally change or delete information once transmitted to the user. ( 24 ) As a result, a mailbox hosted and administered by the payment service provider is unlikely to comply with the requirement of guaranteeing ‘unchanged reproduction’, since it is technically under the control of the payment service provider. But most importantly at paragraph 80 I do not think that such an approach would run counter the findings of the Court in Content Services. It is true that, in that case, the Court declared that, where information found on a website is made accessible to the customer via a link sent to him by email, that information is neither ‘given’ to that consumer, nor ‘received’ by him, within the meaning of Article 5(1) of Directive 97/7. ( 26 ) However, not only does the object of Directive 97/7 differ from that of Directive 2007/64, but the wording of the relevant provisions in each of those instruments also does not seem to follow the same pattern. ( 27 ) Moreover, the circumstances in Content Services, where the information was sent only via a link to a website and which did not fulfil the criteria for constituting a ‘durable medium’, were also radically different to the circumstances of the present case. Notice here it's talking about the different approach applied for distance selling, and justifying their different approach by explaining the object and wording are different. They also clarify in their conclusion that: provided that the e-banking mailbox enables the payment service user to store information personally addressed to him in a way which is accessible for future reference for a period of time adequate in the light of the purposes of the information. It must furthermore allow the unchanged reproduction of the information stored, thus preventing the service provider from accessing, modifying or erasing that information. Again, what website do you know of that would prevent the service provider from accessing, modifying or erasing the information?  It also discusses at length that even if a website allows durable medium within the required definition (personally addressed, able to be stored and guaranteed unaltered reproduction), it has not been provided and has merely been made available. In a nutshell the courts said that they're not saying websites will never be able to fulfil the criteria, but that the ones presented to them so far haven't.

George_Michael

What websites do I know that can guarantee that information will be unchanged?
None, but then again, I'm far from an expert in website design and operation.

The way I look at it is if websites are never suitable for sending and storing durable media, why have UK trading standards stated otherwise?

A durable medium is defined as paper, email or other medium that:

• allows the information to be addressed personally to the recipient
• enables the recipient to store the information and access it for future reference (this includes you placing the information in your customer's personal account area of your website, which they can access by logging in)
• allows unchanged reproduction of this information

and why does the EU state otherwise? If no such websites existed, why bother stating what they have?

I think that there's a fair chance that their experts and law interpreters are more knowledgeable than anonymous posters (and in that, I'm including myself) on internet forums and in saying that, I think that we'll just have have to agree to disagree and leave it at that.

unholyangel

George_Michael said:

What websites do I know that can guarantee that information will be unchanged?
None, but then again, I'm far from an expert in website design and operation.

The way I look at it is if websites are never suitable for sending and storing durable media, why have UK trading standards stated otherwise?

A durable medium is defined as paper, email or other medium that:

• allows the information to be addressed personally to the recipient
• enables the recipient to store the information and access it for future reference (this includes you placing the information in your customer's personal account area of your website, which they can access by logging in)
• allows unchanged reproduction of this information

and why does the EU state otherwise? If no such websites existed, why bother stating what they have?

I think that there's a fair chance that their experts and law interpreters are more knowledgeable than anonymous posters (and in that, I'm including myself) on internet forums and in saying that, I think that we'll just have have to agree to disagree and leave it at that.

Where did the EU state otherwise? 

All the EU have said is (in relation to the payment services directive):

At this point, it must therefore be concluded that internet-based communication systems are not per se excluded from being ‘durable media’. In order to do so, however, their functionality and operation must comply with the requirements of Article 4(25) of Directive 2007/64, set out above in point 32 of this Opinion

So again, not that websites are durable. Just that they're not technically excluded from being a durable medium, if it meets the corresponding conditions. 

Or there was also this paragraph:

Without seeking to be exhaustive or to limit the range of existing or possible technical arrangements that could comply with the requirements of Article 4(25) of Directive 2007/64, in my view, e-banking mailboxes could be considered as ‘durable media’ in two scenarios. ( 21 ) First, an e-banking mailbox could be regarded as fulfilling the conditions for being a ‘durable medium’ per se. Second, such a system could be considered as constituting an avenue for transmitting electronic documents, which, if provided in an appropriate format, may constitute ‘durable media’ in themselves. The key question in both cases is whether the information can be stored for an adequate period and whether its unchanged reproduction is guaranteed. In both scenarios, however, the existence of a ‘mailbox’ presupposes a secured independent storage space that users access with a username and password.

In other words, they can be durable if the mailbox is on storage that's not under the control of the payment service provider. 

You might not be confident enough in your understanding to say whether a website would or wouldn't meet the requirements but please don't assume that we're all in the same boat. If it's their server (rather than yours) then it doesn't guarantee unchanged reproduction as they have the means to change the information on the server or to delete it entirely. Plus, you'll notice a lack of technical detail in the judgement - because they didn't actually consider the technical aspect of any particular website. They answered it in a theoretical generic sense - that if a website met the requirements of a durable medium then yes it could be considered durable. 

In spite of the apparent complexity in the context of new technologies, the basic point remains remarkably simple: the underlying objective of legislation relating to consumer information in contract formation or modification is that consumers are informed in a certain way and that they can retain that information in a safe format for later evidentiary purposes. Without implying any ill will on the part of either contracting party, a ‘mailbox’ placed under the control of the service provider cannot, by definition, ensure that consumers can retain information delivered to that mailbox in a safe format for future reference or use. To draw a parallel with the ‘pre-virtual’ age, such a mailbox resembles a situation in which customers were given paper versions of their contracts with a bank, but where all of those contractual documents would have to be obligatorily stored in an archive room in the bank itself. Even if paper is fairly durable, the information in those archived contractual documents could hardly be classified, from the point of view of the customer, as ‘accessible for future reference’ and, allowing ‘unchanged reproduction’ in the sense of Article 4(25) of Directive 2007/64.

Which is my entire point. If it's on their website, it's on their server and under their control which prohibits it from meeting the requirements of durable medium.