On 5 July 2012, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Oberlandesgericht Wien (Austria) concerning the interpretation of Article 5 (1) of Directive 97/7/EC of 20 May 1997 on the protection of consumers in respect of distance contracts (“Distance Selling Directive”) (ECJ, case C-49/11, Content Services Ltd v. Bundesarbeitskammer). The ECJ found that providing the consumer with information only via a website or via hyperlinks is not sufficient under the Distance Selling Directive.
Content Services Ltd is a company offering online services and software downloads. When a consumer places an order with Content Services, he must accept the terms and conditions of the company by ticking a box. The information required by the Distance Selling Directive, however, such as information about the right of withdrawal, is not displayed to the consumer at this time, but is only accessible by clicking on a hyperlink. After an order is placed, the consumer receives a confirmation email which also contains a link to the relevant information, which is only available on the website.
Article 5 (1) of the Distance Selling Directive provides that the consumer must “have been given” or “receive”, prior to or at the time the agreement is closed, “written confirmation” or “confirmation in another durable medium” of all information relevant to the consumer. The Bundesarbeitskammer, the Austrian consumer protection entity, argued that the display of the relevant information on a website, only after clicking a hyperlink, was not sufficient under Article 5 (1) of the Distance Selling Directive and brought an action against Content Services Ltd before an Austrian court.
The Austrian court referred the case to the ECJ to determine whether making the information required under the Distance Selling Directive accessible to the consumer only via a hyperlink on a website meets the requirements of Article 5 (1). The ECJ held that the information requirements of Article 5 (1) were not met for two reasons.
First, the usual, everyday meaning of the verbs “receive” and “give” contained in Article 5 (1), refers to a process of transmission whereby it is not necessary for the consumer to take any particular action in order to obtain the required information. In contrast, when a hyperlink is displayed, a consumer must act by clicking on the link. The information, therefore, is neither “given” by the seller nor “received” by the consumer as required by Article 5 (1).
To support its reasoning, the ECJ also referred to the preamble of the Distance Selling Directive. Recital 11 states that “the use of means of distance communication must not lead to a reduction in the information provided to the consumer.” According to the ECJ, the display of required information only after the consumer clicks on a hyperlink goes against this objective of the Distance Selling Directive.
Second, the ECJ held that a seller’s website such as the one at issue is not a “durable medium” for providing the consumer with relevant information within the meaning of Article 5 (1). Providing information via a website does not ensure that the consumer is in possession of the information in the way he would be if paper were used. According to the ECJ, a medium is durable if it “allows the consumer to store the information which has been addressed to him personally, ensures that its content is not altered and that the information is accessible for an adequate period, and gives consumers the possibility to reproduce it unchanged.” This interpretation is confirmed by the definition of “durable medium” in other EU Directives and a previous case before the Court of the European Free Trade Association (case E-4/09, Inconsult Anstalt v. Finanzmarktaufsicht).
In the case at hand, Content Services Ltd was able to amend the website content unilaterally, and there was no indication that a consumer could store the information and reproduce it unchanged. Still, the ECJ did not rule out the possibility that some “sophisticated websites” could meet the “durable medium” standard as required by Article 5 (1) of the Distance Selling Directive.
The ECJ thus clarified that providing relevant information behind hyperlinks, or simply providing the relevant information on a website, will not suffice within the meaning of Article 5 (1) of the Distance Selling Directive.
