Businesses that deal with the sale of products or services to consumers through distant selling methods are regulated by the Office of Fair Trading, under the Consumer Protection (Distance Selling) Regulations 2000 (as amended by the Consumer Protection (Distance Selling) Amendment Regulations SI 689/2005). The regulation implements the European Council Directive (97/7/EC), which aims to provide additional rights to the consumer, to provide them with confidence in using this method to buy goods or services and to ensure that all traders selling at a distance are meeting certain basic requirements.
Consumer Protection (Distance Selling) Regulations 2000 (DSRs)
The Regulation will apply to your business if you are formulating contracts with consumers under an organised distance sales or service provision scheme by using means other than face-to-face communication e.g. through the internet or faxing.
The regulations makes clear that in order for a consumer to make an informed choice about whether or not they wish to pursue a transaction they must be provided with clear information. The following information is required: details of the goods or services offered, the supplier, delivery arrangements and payment and also consumer cancellation rights before purchase. This has to be confirmed in writing followed by the allowance of a cooling off period to enable withdrawal from the contract if the consumer changes their mind.
Exempt distant selling contracts
The Consumer Protection (Distance Selling) Regulations 2000 will not apply to your business trade: if the contracts formulated involve the transfer or sale of land if the contract had been concluded with the use of a public pay phone the contract is for the supply of financial services (please note that the provisions of the Financial Services (Distant Marketing) Regulations 2004 (SI: 2095 2004) and the Consumer Credit Act 1974 may apply here instead) the contract was concluded at auction or to products bought from automated commercial premises or vending machines.
Part-exempt distant selling contracts
Depending on the nature of the contract, your business may be exempt from some of the provisions outlined in the Regulation. This applies to contracts for the supply of food, beverages or other goods intended for everyday consumption supplied to the consumer, and contracts for the provision of accommodation, transport, catering or leisure services and where the supplier undertakes to provide these services on a specific date or within a specific period. These types of contracts are exempted from the following requirements: written confirmation cancellation rights recovery of money paid by the consumer return of goods by the consumer after cancellation goods given in part exchange and mandatory performance of the contract within 30 days.
Jurisdiction of the DSRs
Although the European Council Directive (97/7/EC) is aimed at ensuring consumers are subjected to the same minimum level of protection regardless of the location of the supplier within the EU, member states are still free to afford a higher level of protection and therefore any business looking to trade in other member states should investigate or seek advice as to their applicable legal obligations.
If you are trading by electronic means then the Electronic Commerce Regulations 2002 (ECRs) and the Privacy and Electronic Communications Regulations 2003 (PECRs) will also apply.
In relation to cross border e-commerce then the Provisions of Private International Law will apply in order to transact and settle disputes.