The CJEU recently ruled that providing information to consumers about their rights under the Distance Selling Directive 97/7/EC via a hyperlink to a website is not sufficient to comply with the Distance Selling Directive (97/7/EC). Article 5(1) requires that a consumer must “receive written confirmation or confirmation in another durable medium”.
The CJEU noted that the requirement is that the relevant information is “given” to the consumer or “received” by him. Such words imply that the consumer should not be required to take any particular action to access the information. In Content Services Limited v Bundesarbeitskammer the consumer was required to click on a link in the confirmation email in order to view the information required by the Directive. The CJEU held that such proactive conduct fell short of the requirements in the Directive. Furthermore, a website is not a “durable medium” because the seller can alter its content or make the information inaccessible in the future.
As Regulation 5 of the Distance Selling Regulations 2001 follows the wording of Article 5(1) of the Distance Selling Directive, companies conducting business online should ensure that any confirmation email to consumers sets out in full the information required. A contract will not be enforceable against a consumer unless the information required in Regulation 5 is given or received in this manner.
It is worth noting that although the Distance Selling Regulations 2001 do not apply to contracts relating to financial services, the EC (Distance Marketing of Consumer Financial Services) Regulations 2004 contain a similar requirement. Regulation 9(1) requires consumers to be “given” certain information “in writing or in some other durable medium”. It would be prudent therefore for financial services firms to ensure they also supply such information, in full, in a confirmation email to the consumer. A contract for the supply of a financial service will also be unenforceable against the consumer if the supplier fails to comply with the information requirements in the 2004 Regulations.
Case: Content Services Ltd v Bundesarbeitskammer  Case C-49/11.