Providing links to information not sufficient for businesses to comply with distance selling laws, ECJ rules

The ECJ said that providing links to information did not constitute "sending" that information and that it also could not be said to have been "received" by consumers, as required by EU distance selling laws. It said that links were not a "durable medium" through which traders can provide consumers information they are required to under EU law.

"Where information found on the seller’s website is made accessible only via a link sent to the consumer, that information is neither ‘given’ to that consumer, nor ‘received’ by him," the Court said in its ruling. 

"A website ... the information on which is accessible to consumers via a link provided by the seller, cannot be regarded as a ‘durable medium’ within the meaning of [the EU's Directive on the protection of consumers in respect of distance contracts (Distance Selling Directive)]," it said.

Under the Distance Selling Directive traders are obliged to provide consumers with certain information about their businesses and about sales transactions. The information includes details of traders' names and addresses and must be provided "in good time prior to the conclusion of any distance contract."

Other information, including about the product or service, the price to consumers and details of consumers' general right to withdraw from a contract must also be provided to consumers before distance contracts are concluded.

The Directive requires that the information is "provided in a clear and comprehensible manner in any way appropriate to the means of distance communication used" and that "due regard" is given to "the principles of good faith in commercial transactions, and the principles governing the protection of those who are unable ... to give their consent, such as minors."

The Directive also generally requires that consumers receive "written confirmation or confirmation in another durable medium" of the trader and sales details "in good time during the performance of the contract, and at the latest at the time of delivery where goods not for delivery to third parties are concerned." This is "unless the information has already been given to the consumer prior to conclusion of the contract in writing or on another durable medium available and accessible to him."

The ECJ was ruling in a case referred to it from a court in Austria. A consumer protection body in Austria had complained to a court in Vienna that a company operating out of Germany, Content Services, infringed EU consumer protection laws.

Content Services provided consumers with online services that allowed them to download software. To do so consumers had to actively 'tick' to agree to the company's terms and conditions in an online registration. The terms required consumers to waive their right to withdraw from a contract. The terms were only available to users who clicked on a link to where the information was posted on the firm's "contract sign-up page."

After consumers placed an order with Content Services the firm sent those individuals an email which contained a link to a website as well as a username and password for accessing information on that site. Only by clicking on the link could consumers find out information that restated that they have waived their rights to withdraw from the contract. 

Content Services invoiced consumers €96 for access to its site for a year. The invoice stated that the consumers had waived their right of withdrawal and that they could not cancel their subscription.

The Austrian consumer protection watchdog complained about the activity to the Austrian courts.

Under the Distance Selling Directive consumers generally have the right to return distance-sold goods or services within seven days of receiving or having access to them. That right of withdrawal does not apply if consumers agree with traders that it is waived once the "performance has begun" of that "provision of services".

The ECJ ruled that sending consumers links to information is not enough to satisfy traders' requirements under the Directive. 

The ECJ said that because a consumer "must act in order to acquaint himself with the information" contained in a link, they could not be said to have received that information from a trader. The information, therefore, could not be said to have been given by a trader, it added.

Links are also not a "durable medium" in which to provide information, the Court said. It rejected claims by Content Services that websites can be suitably advanced to "ensure that information, without coming under the control of the consumer, can be stored, accessed and reproduced by the consumer during an adequate period."

"A substitute for paper form may be regarded as capable of meeting the requirements of the protection of the consumer so long as it fulfils the same functions as paper form," the ECJ said in its ruling. "It follows that a durable medium, within the meaning of [the] Directive, must ensure that the consumer, in a similar way to paper form, is in possession of the information referred to in that provision to enable him to exercise his rights where necessary."

"Where a medium allows the consumer to store the information which has been addressed to him personally, ensures that its content is not altered and that the information is accessible for an adequate period, and gives consumers the possibility to reproduce it unchanged, that medium must be regarded as ‘durable’ within the meaning of that provision," it added.

The ECJ said that links do not meet those requirements.