The European Union Court of Justice1 has recently decided on the issue on consent from consumers to enter an agreement by an internet access hyperlink on the website of the seller.
Specifically, the subject matter is whether it is considered sufficient that the information on the right to terminate a contract should be accessed via a hyperlink to the website of the seller in which it is posted a text in which the consumer should confirm that it is agreed to initiate a contractual relationship by checking a box.
The dispute was raised by an Austrian Consumer Defence Office in regards to an English company that provides online services on its web site from which free programs or trial versions of pay-per-view programs can be downloaded.
In order to be able to use the site, consumers must fill out a registration form accepting the conditions of sale and waiving their right to terminate the agreement by checking a box on the registration form. The mandatory information on the right of withdrawal is not shown directly but can be checked by clicking on a link in the form. After registration, the consumer receives an email that contains the passwords but including no information concerning the right of termination. The information on this right can only be achieved by a link posted in the mentioned email.
Then, the consumer receives a bill for the access to the Internet content for twelve months in which it is indeed stated that the consumer has waived its right to the termination and, therefore, the user has no longer the right to terminate the contract.
In order to take a decision on this issue, the Court considers in the first place, that Article 5 of Directive 97/77 on the protection of consumers in distance contracts states that the consumer must receive, whether in writing or by durable medium, a confirmation of relevant information with enough time in advance, unless this has already been transmitted prior to the execution of the contract in writing or in any similar medium.
According to the mentioned rule, the Court considers that when a professional makes certain information available to the consumer prior to the execution of the contract in a way that is not in writing or on a durable medium, the professional service provider must confirm the relevant information whether in writing or by any other similar medium.
According to the mentioned Court, the purpose of the Directive is to allow consumers to have full protection in distance contracts in order to prevent that the use of distance communication means decreases the information provided to the consumer.
Therefore, the Court concluded that in those cases in which the information is only accessible through a hyperlink it shall not be considered as provided to the consumer or received by him/her.
Secondly, the Court examines whether a website whose information is accessible to consumers through a hyperlink should be considered durable according to the Directive.
Accordingly, the Court states that the paper might be substituted for any other mean complying with the requirements of consumers’ protection providing always that it meets the same conditions than the paper.
The Court considered as a durable mean the one that allows the consumer to store information addressed personally to him, guaranteeing that the content will not be altered as well as its accessibility for an appropriate period and offering consumers the ability to reproduce it identically.
In this sense, the conclusion reached by the judgment is that the link that is provided to the consumer in this case does not allow that the consumer can access and reproduce it for a suitable period, excluding any possibility of unilateral modification by the seller.
Therefore, the Court concluded that the way in which information is provided to the consumer in this case cannot be considered durable.
In summary, the Court finds that it is not enough that the information is accessible through a hyperlink as the one offered in this case, but it is also necessary to allow the consumer to store that information for long time enough for the consumer to examine it.
From all this it shall be considered that a seller who uses technical means of distance selling must allow the consumer to have sustainable access to their general conditions to consider that the consumer has had long time enough to provide informed consent to the contractual relationship. The mean used in this case is not considered sufficiently guarantee for the consumer rights.
However, it is worrying that from the judgment is not possible to conclude which is the right way to provide the information since when considering that a hyperlink it is not the right way, then, it is difficult to imagine another way to provide this information on the Internet that meets the requirements of the Directive. The Judgment is unclear at this point and it shall require a subsequent clarification.