UK: Click And You Shall Receive: Using Hyperlinks

Last Updated: 23 July 2012
Article by John Armstrong and Janine Kessel

In the recent case of Content Services Ltd v Bundesarbeitskammer [2012] Case C-49/11 (link), the ECJ held that providing consumers with hyperlinks to a website containing the information required to be given to consumers by Article 4 of the Directive 97/7/EC did not constitute the consumer being 'given' or having 'received' the information within the meaning of Article 5(1). Furthermore, by virtue of the nature of general websites which allow the content to be altered by the seller at any given time, Content Services' website did not constitute a 'durable medium' for the purposes of Article 5(1) of the Directive.  

The facts

Content Services Ltd provide various services online via its website, namely allowing consumers to download free software or trial software, charging a fee of 96 EUR for access to the content. In order to use the website, the consumer has to sign up to the site by filling out a registration form. By declaring that they accept the general terms and conditions when placing an order, the consumer waives their right of withdrawal by ticking a box on the form. The information required by Articles 4 and 5(1) of Directive 97/7, whilst not displayed to internet users on the site as part of the sign-up process, is available by clicking on a hyperlink. After completing the registration process, the consumer is sent a confirmation email from Content Services providing a username and password to gain access to the site; this email also contains a link via which information on the right of withdrawal can be obtained.

The main proceedings were brought by the Austrian body responsible for the protection of consumers, arguing that Content Services' business practice infringed several provisions of European Union and domestic law in relation to consumer protection. It won the case in the lower court, and on appeal the following question was referred to the European Court of Justice for preliminary ruling:

"Is the requirement in Article 5(1) of the Distance Contracts Directive to the effect that a consumer must receive confirmation of the information specified there in a durable medium available and accessible to him, unless the information has already been given to him on conclusion of the contract in a durable medium available and accessible to him, satisfied where that information is made available to the consumer by means of a hyperlink on the trader's website which is contained in a line of text that the consumer must mark as read by ticking a box in order to be able to enter into a contractual relationship?" 

The decision

Article 4 of Directive 97/7 provides that a consumer shall be provided with a range of information including, amongst other things, the supplier's identity and the consumer's right to cancel (the right of withdrawal). Article 5(1) of Directive 97/7 provides that the consumer must receive written confirmation or confirmation in another durable medium available and accessible to him of the information referred to in Article 4, in good time during the performance of the contract, 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 court focused on two aspects of the requirements in Article 5(1) of the Directive, namely: (i) whether the relevant information under Article 4 is 'given' to or 'received' by the consumer, and (ii) whether a website, the information of which is accessible to consumers via a hyperlink provided by the seller, must be regarded as a 'durable medium'.

What is the meaning of 'receiving' and 'giving' information?

As the Directive does not provide any insight into the scope of 'receiving' and 'giving' information in the context of Article 5(1), the court held that their usual meaning must be determined by looking at their use in everyday language. The court noted that the terms 'receive' and 'given' refer to a process of transmission. The underlying concept of transmission is that it is not necessary for the recipient, in this case the consumer, to take any action. In contrast, where a hyperlink is provided, the consumer must act by clicking on the link in order to access the information. 

The court referred to the purpose of Article 5(1) of ensuring that the information necessary for the consumer to exercise his rights, including his right to withdrawal under Article 4, is communicated to the consumer. The legislature's decision to use the term 'receive' in Article 5(1), as opposed to the term 'provide' as used in Article 4, placed a greater burden on a business; the term 'receive' denotes passive conduct by consumers.  

The court concluded that the objective of the European legislature in drafting the Directive was to prevent situations whereby the use of distance communications leads to consumers being provided with less information. The consumer should be given the information without having to be in any way proactive. The court therefore held that the information is neither 'given' to nor 'received' by the consumer where a hyperlink is provided to the consumer to access the information on the seller's website. 

What constitutes a 'durable medium'?

Article 5(1) provides that the information in Article 4 must be provided to the consumer either in writing or on another durable medium. Whilst the Directive itself does not provide a definition of 'durable medium', the court referred to the definition of 'durable medium' in other legislative texts, namely Article 2(f) of Directive 2002/65, Article 2(12) of Directive 2002/92 and Article 3(m) of Directive 2008/48. Whilst these directives were not directly applicable in this case, the court held that there was nothing to indicate the definition of 'durable medium' provided in these directives should be different to that used in Directive 97/7. The court further cited Article 2(10) of Directive 2011/83, which will replace Directive 97/7 on the 13 June 2014, noting that the definition of 'durable medium' within this directive was consistent with those cited above.

Relying on the definition of 'durable medium' provided in the legislative texts above, the court held that a durable medium must ensure: (i) that the consumer is in possession of the information necessary to exercise his rights, (ii) that the consumer is able to store the information, (iii) that the content is not altered, (iv) that the information is accessible for an adequate period of time, and (v) that the consumer is able to reproduce the information unchanged. The intention of the European Union legislature was that the durable medium should have the same functionality as a paper format.

Taking the above into account, the court concluded that Content Services' website did not allow the consumer to store the information which was personally addressed to him in a way which would allow the consumer to access the information and reproduce it unchanged for an adequate period of time. Furthermore, as noted by Advocate General Mengozzi in his opinion (link), the very nature of such a general website precludes the consumer from having control over the information on the website, as Content Services, being the owner of the website, can change the content at any time. It was therefore held that Content Services' website could not be regarded as a 'durable medium' within the meaning of Article 5(1) of the Directive. 

Comment

This case sets out clear criteria which must be met when considering whether any technology falls within the definition of 'durable medium'. Whilst the case seems to confirm the OFT's guidance in relation to the Distance Selling Regulations, which states that information on a website cannot be considered as durable as it can be changed by the seller after the consumer has accessed it, it should be noted that the ECJ provided no ruling in relation to the point raised by Content Services with reference to the European Securities Markets Expert Group report. The report distinguishes between 'ordinary websites' and 'sophisticated websites', concluding that some sophisticated websites may meet the criteria to be classed as a 'durable medium'.

Indeed, both the ECJ and Advocate General Mengozzi referred to the Court of the European Free Trade Association case Inconsult Anstalt v Finanzmarktaufsicht Case E-4/09 [2010] (link), in which the EFTA Court held that a website can constitute a durable medium provided that the criteria of the definition of a 'durable medium' (set out above) are met. However, this is likely to be decided on a case by case basis.

Whilst there is arguably some discord between the Distance Selling Regulations and the Directive, with the former requiring that the seller 'shall provide' written confirmation and the latter having been interpreted by the ECJ to include a requirement that the consumer must 'receive' the information, it is unlikely that this will have any real impact in practice. Online sellers should include the information required by Article 4 of the Directive in any confirmation emails or delivery notes sent to the consumer in order to avoid potentially failing to meet the requirements under Article 5(1) of the Directive. As Advocate General Mengozzi pointed out in his opinion, if the online seller already makes use of emails by way of informing consumers of their log-in details to their site, there is no reason why the required Article 4 information could not be included in this manner.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 17/07/2012.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.