New distance selling laws: 8 key compliance points

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 apply special rules to B2C distance contracts entered into via a website, as well as certain other contracts (not discussed here).

The Regulations, effective on 13 June 2014, replace the Consumer Protection (Distance Selling) Regulations 2000. See:

http://www.legislation.gov.uk/uksi/2013/3134/contents/made

Unfortunately, the rules are rather complex. This is especially depressing in the context of consumer protection legislation, which should be straightforward enough for anyone to understand without hours of study.

In this post, I set out what I consider to be the key compliance points from the point of view of a website-based ecommerce business. There are however a lot of other rules, and you should read the Regulations or at least a more detailed summary of them.

The key compliance points are as follows:

  • First, website operators must make certain pre-contract disclosures. The information you need to disclose is set out in Schedule 2 to the Regulations, and includes information about the cancellation rights under the Regulations. Some of the information may be contained in terms and conditions or other standard documents, whilst some will usually be customer-specific.
  • Second, certain of the Schedule 2 information (mostly concerned with the characteristics of the goods and services, pricing and payments and contract duration - see Regulation 14(2)) must be provided directly before the order is placed. This could be on page of a checkout process where the consumer is asked to check the details of the order before paying.
  • Third, when placing an order the consumer should explicitly acknowledge the obligation to pay. If the order is made by pressing a button, the button text should be "Order with obligation to pay" or something equivalent.
  • Fourth, the operator must send to the consumer confirmation of the contract on a "durable medium". Typically, this will be a confirmation email. The confirmation should repeat any Schedule 2 information that was not previously given on a durable medium.
  • Fifth, the operator should make available to consumers a partially filled-in copy of the model cancellation form set out in Schedule 3(B).The operator may also wish to make available a filled-in copy of the model instructions for cancellation set out in Schedule 3(A) - this will help with some of the information disclosure obligations mentioned above.
  • Sixth, the operator should have in place appropriate procedures to comply with cancellation requests. In summary, consumers may cancel a contract to purchase goods at any time within the period of 14 days following delivery. Contracts to purchase services or digital content may be cancelled at any time within the period of 14 days following the coming into force of the contract (subject in each case to the early provision rules, described below).
  • Seventh, in the case of contracts for services which will or may be provided before the end of the cancellation period, and on the assumption that such contracts should be not be cancellable without cost to the consumer, the consumer should be required to make an "express request" for service provision before the end of the cancellation period, and must "acknowledge" that the right to cancel will be lost once the contract has been fully performed.
  • Eight, in the case of contracts for digital content which will or may be provided before the end of the cancellation period (surely, that is almost all of them), and on the assumption that such contracts should not be cancellable, the consumer should be required to give "express consent" to supply before the end of the cancellation period, and must "acknowledge" that the right to cancel will be lost. In addition, the website operator must include in its confirmation (mentioned as the fourth point above) "confirmation of the consent and acknowledgement".

This is, as stated above, a very brief summary, and there are lots of exceptions and special rules that are not covered in this post, so do read the Regulations themselves and/or some more detailed guidance. See, for instance, the Distance Selling Hub on the Trading Standards website:

http://dshub.tradingstandards.gov.uk/

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