An important part of legal compliance for online sellers is the provision of certain information to users and customers. This post seeks to list all of the main categories of information that need to be disclosed on the seller's website.
There's no way to disguise the nature of this post: it's a list. A long list, and arguably a boring one. If you're new to ecommerce, and innocent of the nature of modern - especially EU-derived - regulatory regimes, you may well be unpleasantly surprised by its length.
I hope it's a useful list, nonetheless.
As you'll see, there is quite a bit of overlap between the different sets of rules. I have eliminated some of this overlap, where it seems to me that all online sellers would be subject to both (or all) the relevant sets of rules. However, the application of the particular rule sets depends upon the particular circumstances, so a lot of the repetition can't be eliminated.
This is part 4 in a series of posts about the law affecting online sales. If you want to read the previous posts, see:
http://www.seqlegal.com/blog/selling-online-and-law-part-1 - Introduction
http://www.seqlegal.com/blog/selling-online-and-law-part-2 - Regulation of products
http://www.seqlegal.com/blog/selling-online-and-law-part-3 - Product descriptions
Categories of information
There are six main categories of information that must be disclosed:
Note: the regulations on the legislation.gov.uk site - linked to in this post - are not in amended form. In other words, they are not necessarily up-to-date.
Ecommerce Regulations disclosures
The Regulations apply to "information society service providers" and refer throughout to the "service provider": in our case, this will usually be individual, partnership or company that owns the ecommerce store. Where information has to be provided under the Ecommerce Regulations, it must generally be provided in "a form and manner which is easily, directly and permanently accessible".
The basic information that must be provided under the Regulations is as follows:
In addition, where the service provider is registered in a public trade register or similar, the following must be provided:
If the service provider is subject to an authorisation scheme (e.g. FSA authorisation) it must also provide:
If the service provider exercises a regulated profession, which will rarely be the case with an ecommerce operator, the following must be disclosed:
If the service provider is required to be VAT registered, then the provider must disclose:
All online shops must also disclose:
All B2C online sellers will also have to disclose "in a clear, comprehensible and unambiguous manner":
B2B online sellers do not have to disclose this information if they "agree otherwise" with there customers (i.e. have their T&Cs drafted in such a way that these requirements are negated).
Finally (although this isn't really a substantive informational requirement):
Provision of Services Regulations disclosures
The Provision of Services Regulations 2009 apply to all services, subject to a list of exceptions. Unfortunately, ecommerce services are not amongst those exceptions. As a result, these Regulations overlap with the Ecommerce Regulations, producing a confusing set of disclosure obligations.
On the assumption that online retailing is a service, then the following additional disclosures will be required under the Provision of Services Regulations (I have not mentioned all of those that broadly overlap with requirements listed above):
Because these requirements are all about services, rather than goods, it is unclear the extent to which they apply in relation to contracts for the sale of goods, notwithstanding that such contracts are made through the use of "information society services" (Euro-speak for the internet).
Distance Selling Regulations disclosures
The Distance Selling Regulations apply only to B2C contracts, not B2B contracts. If you sell exclusively to businesses, you can ignore this section.
Information to be provided under these regulations must be provided in a "clear and comprehensible manner appropriate to the means of distance communication used, with due regard in particular 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".
Where these Regulations apply, you must, in good time before the point of contracting, provide the following information to customers:
Companies law disclosures
Under Regulation 7 of The Companies (Trading Disclosures) Regulations 2008, all UK companies must disclose the following information on their websites:
There is also some information under these regulations that needs to be disclosed in special cases:
Sections 1200 to 1206 of the Companies Act 2006 govern the disclosure of identity information by sole traders and partnerships.
The rules apply to an individual or partnership carrying on business in the UK under a business name. In the case of an individual, a “business name” means a name other than his or her surname without any addition other than a permitted addition. In the case of a partnership, it means a name other than: (i) the surnames of all partners who are individuals, and (ii) the corporate names of all partners who are bodies corporate, in each case without any addition other than a permitted addition.
The "permitted additions" for an individual his or her forename or initial. For a partnership, they are: (i) the forenames of individual partners or the initials of those forenames, or (ii) where two or more individual partners have the same surname, the addition of “s” at the end of that surname;
(iii) in either case, an addition merely indicating that the business is carried on in succession to a former owner of the business.
Where these rules apply, the information that must be disclosed is:
If the individual or partnership has a place of business in the United Kingdom, the address must be in the United Kingdom. If the individual or partnership does not have a place of business in the United Kingdom, the address must be an address at which service of documents can be effected by physical delivery and the delivery of documents is capable of being recorded by the obtaining of an acknowledgment of delivery.
The Unlike the Companies (Trading Disclosures) Regulations, the Act does to not specifically say that this information needs to be disclosed on a website. However, the information must be stated "in legible characters" on all "business letters" and "invoices and receipts issued in the course of the business". Furthermore, it must be disclosed on request to "any person with whom anything is done or discussed in the course of the business and who asks for that information".
Data Protection Act disclosures
The basic information that needs to be provided to website users under the Data Protection Act 1998 is:
The "data controller" is the person responsible for determining the purpose or purposes for which personal data are processed. Generally, in the case of an online store, this will be the store operator.
The Information Commissioner has published guidance elaborating on the principles in the Act. On the basis of that guidance, you should consider providing the following information to users and customers:
Regulation 6 of the Privacy and Electronic Communications Regulations (as amended) requires that certain cookie information be disclosed to users, except in relation to cookies that "are strictly necessary for the provision of an information society service requested by the subscriber or user":
This is not a complete list of all the disclosures that may be required by a particular website. For instance, products which are subject to special regulation (e.g. toys, tobacco and pharmaceuticals) may require additional specific disclosures. In addition, I have not generally covered here disclosures that need to made in places other than on websites - e.g. in email communications with customers.
If there's anything you think I've missed, please let me know.
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