3â Electronic Commerce (EC Directive) Regulations 2002

167

3â Electronic Commerce (EC Directive) Regulations 2002

169

3â Electronic Commerce (EC Directive) Regulations 2002

that any statement about prices must be clear and unambiguous and indicate

whether they are inclusive of tax and delivery costs.

(c)â Commercial communications

Anybody can buy and sell on the Internet and there is a huge volume of sales

of goods and services to consumers on sites such as eBay. It is important for

purchasers to know whether the person from whom they are buying on the

Internet is a trader or a consumer as the legal rights that they have against

them will vary depending on that one factor alone. Goods sold in the United

Kingdom via the Internet will attract liability under the Sale of Goods Act

197915 and thus must be of satisfactory quality and fit for their purpose16 but

only if purchased from someone in the course of a business.17 Regulation 7 of

the 2002 Regulations therefore requires that a service provider must ensure

that any commercial communication provided by him is clearly identifiable

as such18 and must identify the person on whose behalf it has been made.19

Further, any promotional offer, such as a discount, premium or gift, must be

identified as such with any conditions attached to qualification for it being

clearly and unambiguously presented and easily accessible to the prospective

purchaser.20 Also, any promotional competition or game and the rules gov-

erning it must be easy to access and be clear and unambiguous.21 In addition,

regulation 8 requires that the service provider must ensure that any unsoli-

cited commercial communication sent by him by electronic mail is clearly and

unambiguously identifiable as being unsolicited as soon as it is received. (In

practice, spam filters may achieve this automatically.) An interesting issue is

whether an email is unsolicited when a purchaser has previously indicated

a general preparedness to receive emails from that service provider or other

similar service providers but has not requested the specific email in ques-

tion. Article 7.2 of the E-Commerce Directive22 stipulates that Member States

which allow unsolicited emails must ensure that service providers consult and

respect the opt-out registers on which buyers can register the fact that they

do not want to receive any unsolicited emails. However, difficulties obviously

arise in respect of service providers who do not have access to such registers

and who therefore cannot abide by them. Equally, enforcement authorities

cannot enforce the provisions against service providers whose emails originate

outside the jurisdiction of the authority.

15

Assuming that the service provider and buyer have chosen to have their contract subject to

English law.

16

Sale of Goods Act 1979, s.14(2) and (3).

17

Ibid. s.14 only applies where the seller is in the course of a business. For a fuller discussion see

Part 2 Chapter 2 on the implied conditions in sale of goods.

18

SI 2002/2013 reg. 7(a).

19

Ibid. reg. 7(b)â 20â Ibid. reg. 7(c)â 21â Ibid. reg. 7(d)

22

Electronic Commerce Directive Art. 7(2).

170

E-commerce and distance selling

Q2 Analyse whether the requirements of the Electronic Commerce (EC

Directive) Regulations 2002 are adequate to allow a purchaser to identify and

contact the person from whom he has bought acquired goods or services and

to know whether that person is a trader or a private seller.

(d)â Making the contract

When concluding a contract, it is important for both parties to be fully

aware of the point in the negotiations at which the contract comes into exist-

ence and to have the opportunity to continue to seek additional information

and negotiate terms until that point is reached. Consequently, it is import-

ant to recognise what constitutes the contractual offer and acceptance such

as to bring about a legally binding contract. English law also deals with the

concept of the invitation to treat, and the display on a website of goods and

services that the service provider is prepared to supply would constitute an

invitation to treat in the same way as goods advertised in a shop window.23

The placing of the order on a website would constitute the contractual offer

and the acceptance of the order by the service provider would be the contrac-

tual acceptance that creates the contract. This allows the service provider to

accept or reject the offer in line with normal practice as he cannot be forced

to enter a contract with a potential customer, it is a matter of free will. In

practice, a service provider may choose not to contract with a particular cus-

tomer if the supplier is no longer in a position to supply the goods because,

for example, he underestimated the customer demand for the product con-

cerned and has run out of stock. Equally, given the potential for cross-border

contracts as a result of web-based trading, the supplier may choose not to

contract with anyone from the country in which the potential customer is

domiciled as it may be that his product does not fully comply with the legal

requirements of that country.

The 2002 Regulations deal with the statutory requirements in terms of the

‘placing of the order’ irrespective of whether the placing of the order consti-

tutes the contractual offer.24 Regulation 9(1) requires that if the contract is to

be concludedÂ

by electronic means, the service provider must provide certain

information prior to the placing of an order unless non-consumer contracting

parties have agreed otherwise. This allows the parties in a business-to-business

contract to agree other arrangements. The requisite information must be pro-

vided in a ‘clear, comprehensible and unambiguous manner’. The requirements

cover the different technical steps that the customer must follow to conclude

the contract; whether the concluded contract will be filed by the service pro-

vider and whether it will be accessible; the technical means for identifying and

172

E-commerce and distance selling

contract has been concluded exclusively by email or by an equivalent individual

communication.28

(e)â Placing the order

Regulation 11 of the 2002 Regulations deals with the basic requirements to

ensure that the recipient of the service has the opportunity to correct any input

errors prior to his order being placed and arrangements to ensure that he knows

that his order has been received. Regulation 11(1) specifies two requirements,

although, as under regulation 9(1) and (2), parties who are not consumers

can agree to vary these requirements, and choose to agree arrangements more

appropriate to their business needs. The first requirement under regulation 11

is that the service provider must acknowledge receipt of the order to the person

placing it without undue delay and by electronic means.29 Both the order and the

acknowledgement of the receipt are deemed to have been received by the per-

son to whom it is addressed when those parties are able to access them. Thus,

the supplier of the service is deemed to have received the order when it reaches

his system and can be accessed, even though in practice it may be acknowledged

automatically and the order is not read by the service provider until some hours

or even days later. Websites are accessible 24 hours a day, 365 days of the year,

and it follows that customers are able to place orders at any time even when the

business is not open in the traditional sense. Nonetheless, the order has been

legally placed once the provider can access the order. Equally, the receipt of the

order takes place once it is accessible to the person who placed it even though

he may not actually access the receipt until later. This process negates any argu-

ment as to when or even whether an order was placed, which may be import-

ant in respect of any later dispute about the alleged non-delivery of any goods

that were the subject of the order. Where the order relates to the provision of an

information society service, actual provision of that service by the provider is

itself deemed to be acknowledgement of the receipt of the order.30

Regulation 11(1)(b) deals with the actual mechanics of placing the order. It

requires the service provider to make available to the recipient of the service,

i.e., the person placing the order, effective and accessible technical means to

allow him to identify and correct any input errors before he places the order.

This is crucially important for, as explained previously, the placing of the order

is a contractual offer which can be accepted by the service provider and would,

at that point, become a legally binding contract such as to require the person

placing the order to accept the goods or face a claim for damages for non-

acceptanceÂ

of the goods. The central nature of this requirement is underlined

by the fact that, if the service provider fails to make available an opportunity for

the person placing the order to identify and amend errors in it prior to sending

it, any resulting contract can be rescinded by a person who has entered into that