The ECJ has ruled that online businesses must provide a means of “direct and effective” communication in addition to supplying their name, address and e-mail details on their websites. But what are the practical implications for UK Plc? Phil Lee reports.
Who: Bundesverband der Verbraucherzentralen und Verbraucherverbände and Deutsche Internet Versicherung AG
When: 16 October 2008
Where: European Court of Justice
Law stated as at: 21 November 2008
Oh dear, oh dear, oh dear. You no sooner get comfortable with a piece of legislation than up pops the European Court of Justice with a decision that turns the conventional wisdom on its head. This time round, the ECJ has turned its attention to the meaning of “direct and effective” communication under the e-Commerce Directive, ruling that it is not enough for online service providers simply to supply postal and e-mail contact details – they must also provide an enquiry form and/or telephone number too.
The decision comes from the recent case Bundesverband der Verbraucherzentralen und Verbraucherverbände v Deutsche Internet Versicherung AG. Bundesverband der Verbraucherzentralen und Verbraucherverbände (or, to those non-German speakers amongst you, the German Federation of Consumers’ Associations) (the “Federation”) brought an action against Deutsche Internet Versicherung (“DIV”), an online car insurance company, to require DIV to publish its telephone number on its website. DIV provided postal and e-mail contact details, but did not give a telephone contact number until clients had concluded a contract with it. However, it did provide an online enquiry form, which DIV responded to by e-mail within around 30 to 60 minutes of an enquiry being submitted.
Get in touch
Article 5 of the e-Commerce Directive (2000/31/EC) requires service providers running online businesses to make certain contact details available to consumers through their websites, including:
- the name of the service provider (Art 5(1)(a));
- the geographic address at which the service provider is established (Art 5(1)(b)); and
- the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner (Art. 5(c)).
This last point was understood to mean that the service provider had to provide an e-mail address or another means of “direct and effective” communication. However, the ECJ has said the requirement is instead for service providers to supply an e-mail address and another means of “direct and effective” communication.
“Direct and effective” communication
The case kicked off in the Dortmund Regional Court (here, success for the Federation) before being appealed to the Higher Regional Court (here, success for DIV). Finally, the Federation appealed to the Federal Court of Justice, who found it necessary to refer this point to the ECJ.
In a turn that surprised most commentators, the ECJ ruled recently that Article 5 requires service providers to supply another “direct and effective” means of communication, in addition to their name, geographic address and e-mail address. The ECJ pointed to the fact that Article 5(c) requires service providers to provide direct and effective contact details “including” their e-mail, suggesting that other contact details must also be supplied.
The ECJ stopped short of saying that businesses must provide telephone contact details, noting that “direct” communication required only the absence of an intermediary and that “effective” communication did not require a response to be instantaneous. It acknowledged that the online enquiry form provided by DIV was “direct and effective”, in view of the fact that consumers received a response within 30 to 60 minutes. The ECJ did not say whether it expected this response time to be adopted by all online businesses that provide contact by way of an enquiry form, however.
In a further unexpected twist, the ECJ additionally also ruled that enquiry forms will not be “effective” for consumers who initially make contact electronically but subsequently no longer have access to the electronic network (e.g. because they are travelling or have gone on holiday). Where this is the case, the consumer is entitled to request a non-electronic means of contact (such as a phone number) to enable it to maintain “effective” communication.
Why this matters:
The decision is undoubtedly a victory for consumers but a blow for online business. Many online businesses do not provide telephone contact details simply because they do not have the resource to staff call centers. That the ECJ stopped short of requiring all online businesses to provide telephone contact details will be a relief, but this relief is somewhat tempered by the bizarre position adopted by the ECJ in relation to consumers who initially make contact electronically but then go off travelling – where telephone contact still appears to be required.
More questions raised than answered
In fact, the decision raises more questions than it really answers. If online enquiry forms are an acceptable means of contact, what response times must be provided? The ECJ suggested 30 to 60 minutes is acceptable – but what about 2 hours, 12 hours, 2 days? Do these response times apply only during normal business hours? What standards apply to service providers that don’t actually sell anything? Are big online businesses expected to meet greater standards than smaller online businesses? At this point, we just don’t know.
The e-Commerce Directive is implemented in the UK by the Electronic Commerce (EC Directive) Regulations 2002 and so UK businesses will inevitably find themselves subject to the ECJ’s ruling. The Department for Business, Enterprise and Regulatory Reform is currently assessing what the decision will mean for businesses in the UK so, for the time being, watch this space…