The European Court of Justice has ruled that in order to comply with EU law, online businesses must provide prospective customers with a rapid, direct and effective means of communication, for which an email address alone is not sufficient. Service providers should prominently provide a telephone or fax number or a web inquiry form to which their response is quick and substantive. Non-compliance can result in significant fines.
In the case of Bundesverband der Verbraucherzentralen et al. v. Deutsche Internet Versicherung AG, the ECJ interpreted Article 5(1)(c) of the EU's Directive on E-commerce (hereinafter "Directive"). The Directive is applicable only to service providers located within EU member states or certain other European jurisdictions and aims at providing free movement of goods throughout the EU. Article 5(1) of the Directive requires inter alia, that all member states "ensure that their service provider[s] shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
(a) the name of the service provider;
(b) the geographic address;
(c) 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".
In Bundesverband, the German Federation of Consumers' Association brought an action against Deutsche Internet Versicherung ("DIV") to obtain an order compelling DIV to display a telephone number on its website. Although the website provided DIV's postal and e-mail addresses, customers were given a telephone number only after they had entered into an insurance contract with DIV. However, the potential customers could send questions via an on-line inquiry template and receive the answers by email, and evidence showed that DIV usually replied to these inquiries within 30-60 minutes. The German regional court found that a telephone number was required even for prospective customers, but the Court of Appeals reversed. The plaintiff appealed to the German Federal Court of Justice, which referred the question of interpretation of the Directive to the ECJ.
The ECJ held that Article 5(1)(c) of the Directive mandates that a service provider provide prospective recipients of its service with a rapid, direct and effective means of communication beyond just an email address. The ruling appears to be based on a strict interpretation of the terms "including" and "rapid, direct and effective". The term "including" was interpreted to mean not only the email address specifically required by Article 5(1)(c) of the Directive. Effective communication was interpreted to mean not necessarily instantaneous, but rather requires adequate information to be obtained within a period compatible with the legitimate expectations of the recipient. The ECJ did not stipulate any minimum response time for the purposes of Article 5, although it found that a response time of 30 to 60 minutes was sufficiently rapid to meet those expectations. The Court further held that an electronic response would not be effective within the meaning of the Directive, in situations where the recipient did not have access to an electronic network and requested the service provider to provide an offline means of communication. It therefore seems that DIV may have met these requirements by providing its web inquiry form and responding quickly to such inquiries. However, if there was evidence to support a prospective customer's request for a form of offline communication, DIV's web form would likely have been insufficient.
As a result of this ruling, online businesses based in Europe should review their website contact details. In addition to providing an email address as a rapid, direct, and effective means of communication, service providers should provide other means, such as a telephone or fax number or a web inquiry form to which they quickly respond. An automated response to a web-based inquiry may not be considered effective because it may not provide adequate information and address the legitimate expectations of the consumer. Because of the ECJ's observation that the term direct also precludes the use of an intermediary, it may also be inferred that a business may not be able to outsource its management of client communications, especially to countries outside the EU. The means of communication must also be easily accessible, which, strictly interpreted, would appear to require that a telephone or fax number be sufficiently prominent to prospective customers rather than discretely displayed on less often accessed pages.
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