Content Services created a cloud of uncertainty on whether online banking can be used to "provide" prescribed information. The recent Advocate General opinion in the BAWAG case distinguished Content Services and took a more pragmatic approach.
The CJEU has now "cleared the skies" and adopted the same reasoning as in the AG opinion.
The Court examined whether a notice of variation under the PSD sent to a secure online banking mailbox was "provided" in a "durable medium".
The Court concluded that for information to be provided in a durable medium two conditions must be met:
- To satisfy the requirement for information to be in a 'durable medium', the website must allow the "user to store information addressed to him personally in such a way that he may access it and reproduce it unchanged for an adequate period, without any unilateral modification of its content by that service provider or by another professional being possible". In our view this covers both information stored on websites that cannot be changed by the provider (for example a website maintained by a third party) and information accessible on or through the provider's website which can be printed or downloaded and saved (for example in pdf format). In both cases, if the information is only available for a limited period, the user should be told and the period should be 'adequate'.
- To 'provide' information, the service provider must actively alert the customer to the existence of the information on, or accessible on or through, the website to draw the attention of the customer to the existence and availability of the information. Where the information is simply posted to online banking without any form of alert, then it has only been "made available".
So what next?
We now have greater clarity on how online banking can satisfy regulatory requirements. In particular, as it reflects current practice, the Court's confirmation of the two-tier approach to "providing" information through online banking will be welcome news for industry.
However, firms will need to analyse the wider impact of the decision on their processes. While, the judgment doesn't answer all questions in this area as BAWAG only looks at a notice of variation under the PSD, it establishes a reasoned precedent that should apply across other areas, such as the Consumer Credit Act.