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Technology, innovation, law and tax

Cyber Monday- Know your Rights

By Sarah Slevin and Seán O'Reilly

On Monday 21 November 2016, online sales in the USA surpassed $3 billion in a single day for the first time ever. This also represented a rise in online sales of 12.1% on the equivalent day the previous year. These milestones owe their existence to the phenomenon known as “Cyber Monday”, the online-only equivalent to “Black Friday” on which consumers, fully rested after the Thanksgiving holiday, seek to take advantage of a combination of free time and retailers’ desire to launch the Christmas shopping season and target consumers early by offering significant discounts across almost all retail products.

This trend has, in recent years, made its way across the Atlantic, and Irish consumers and retailers, like those in most other European countries, have, by choice or otherwise, adopted this modern tradition. Today, Irish consumers will be looking to find bargains online and many retailers, large and small are likely to oblige.

However, in the labyrinth of cut prices and quick deals, it is easy to forget the importance of consumer rights and online sale law. Consumers should be aware that transactions conducted online, irrespective of the level of discount applied, continue to be subject to consumer law and should be wary of wily online sellers who may seek to limit consumers’ legal entitlements. Equally, however, online retailers may, in their enthusiasm in offering great deals, forget to vindicate consumer rights, the breach of which can lead to the consumer not being bound to the contract, sanctions from authorities and/or damage to reputation.

Below is a list of some of the primary rights attaching to online purchases in a personal or consumer context (“distance contracts”) which are concluded electronically. Whilst this list is not exhaustive, it explains some of the key rights which may be overlooked during this busy time. These rights apply to the purchase of most goods and services online– there are some exceptions but suffice to say the scope of the relevant rules is broad.

  1. Consumers must be provided with a range of information including (but not limited to): the main characteristics of the goods/services; identity and address (establishment and place of business) of the trader; arrangements for payment, delivery, performance, and time of delivery; any complaints handling policy; as well as all the information at no. 5 below.
  2. The above information must be in “plain and intelligible language”.
  3. The seller’s website must indicate, clearly and legibly, and at the latest at the beginning of the ordering process, whether any delivery restrictions apply and which means of payment are accepted.
  4. A right of cancellation allowing the consumer to unilaterally withdraw from the contract without reason within 14 days of its conclusion (in the case of services) or acquiring possession of the goods; the consumer must be informed of this right and given instructions on how to cancel. If information on conditions, time limit and procedures for exercising this right is not provided then the right to cancel is extended for another twelve months following the expiry of the 14-day period. Whilst there are some goods to which the right of cancellation does not apply, generally speaking the right is cast broadly.
  5. Directly before placing the order, the consumer must be informed of: the goods’/services’ main characteristics (as before); the total price of the goods or services including tax; additional delivery/postage charges, if any; total costs per billing period/monthly (in the case of subscription contracts); duration of the contract (if any); and, if relevant, the minimum length of any obligations on the consumer.
  6. When placing an order, the consumer must be aware of and acknowledge that there is an obligation to pay.
  7. Confirmation of a concluded contract must be provided “on a durable medium”, with all the above information unless this has already been provided prior to the conclusion of the contract. This must be provided, at the latest, by the time of delivery of the goods or before the performance of the service.
  8. In the case of purchases made on mobile devices, although more limited in terms of space/time certain minimal information must still be provided on that device, with the remaining information to be provided “in an appropriate way”.
  9. Sellers cannot use ‘pre-ticked’ boxes or other opt-out provisions to obtain the consent of consumers to anything which would mean the consumer incurs an additional charge.
  10. Finally, remember that general consumer law applies to goods and services purchased online. Goods must be of merchantable quality, fit for purpose and match the description; services must be provided with due skill, care and diligence and be provided by a person with the necessary skills to do so. Sellers are prohibited from engaging in unfair, misleading or aggressive commercial practices or including terms in the contract with the consumer which lead to a ‘significant imbalance’ in the parties’ rights and obligations to the consumer’s detriment.

Disclaimer:

This Document refers to Irish consumer protection and sales law exclusively.  No comment is made as to the applicability or content of the consumer protection or sales law of any other jurisdiction.  This Document is for general information purposes only and does not constitute legal or other professional advice. Specific legal advice should be sought on any particular matter

For more information on the content of this Blog post contact: Seán O'Reillysean.oreilly@rdj.ie, +353 21 2332822

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