e-commerce
Source - Electronic Commerce (EC Directive) Regulations 2002 (‘the Regulations’)
How to approach a q:
for distinction points: define the terms
First half of q will be ‘what Regs the S ought to have complied w/’ cf. Regs 6, 9 and 11
Second half of q will be ‘what are consequences of non-compliance’ cf. Regs 13, 14 and 15 and which go w/which
Key defined terms |
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Part 1 of q |
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Reg 6 - general | Info to be provided by a person providing an info society service: Reg 6(1)(a-g):
See (e) to (f) |
Does regulation apply to this electronic contract? Regs 9 and 11 | Regs 9 and 11 apply to where provision of an ISS involves the placing of orders by technological means or the conclusion of contracts via electronic matters and impose special obligations on service provider Nb. Essential to recognize Regs dealing w/online contract hs have no effect on the operation of CL contractual principles |
Reg 11(1)(a) | A service provider is obliged to acknowledge receipt of a customer’s orders. This does no amount to obligation to “accept” @ CL |
Reg 11(1)(b) |
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When does Reg 11(1) not apply? |
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Notes to Reg 9 |
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Reg 9(1)(a) | Provider must explain different technical steps to follow to conclude contract |
Reg 9(1)(b) | Whether or not the concluded contract will be filed by service provider and whether it will be accessible |
Reg 9(1)(c) | The technical means for identifying and correcting input errors prior to placing of order |
Reg 9(1)(d) | Languages offered for conclusion of contract |
Reg 9(3) | Where service provider provides t&c’s the SP shall make then available to him a way that allows him to store and reproduce them |
Part 2 Consequences of non-compliance w/Regs | Consequences differ depending on regulation breached |
Failure to provide technical means for correcting input errors under Reg.11(1)(b) | Consequences is recipient made a contractual offer which he didn’t intent - if offer is accepted, a valid contract is formed. Reg 15 applies only to breach of 11(1)(b) and allows recipient to rescind Reg 11(1)(b) -> Reg 15 rescission |
Failure to provide t&cs in a way that allows recipients to store and reproduce them under Reg.9(3) | The consequence will be that, in event of a dispute, recipient can’t consult t&c’s. Reg 14 applies only where the SP has not acted on a request to comply w/Reg.9(3) and the recipient may seek a court order compelling the SP to comply Reg 9(3) -> Reg 14 court order |
All other cases of default Reg.13 | Allows a recipient to enforce the Regs against an SP in breach and claim damages for breach of stat duty Reg 13 All other defaults -> Reg 13 |
Websites
Issue | Action |
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Regulation 4: name, address See reg. 6(1)(a) re general info |
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Avoid application of consumer law | Control who uses eg. Passwords and business registration |
Jurisdiction and choice of law | Address these expressly in terms and conds of sale |
CL: unilateral offer or invitation to treat | Clarify in t&c’s of sale |
Regulatory obligation to acknowledge order Reg 11(1)(a) | Use technical means to build into website, best way is to generate email to customer automatically |
Input errors by customer Reg.11(1)(b)... |
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