Introduction
The Consumer Protection (Distance Selling) Regulations 2000 (the "Regulations") came into force in the UK on 31st October 2000. Rather than cover all details of the Regulations, this Article highlights the most important requirements.
When do the Regulations apply?
The Regulations apply to distance contracts. These are contracts:
for the sale of goods or the provision of services;
concluded between a supplier and a consumer (note that business to business distance selling is not caught by the Regulations);
under an organised distance sales or service provision scheme run by the supplier (which will cover, for example, sales made through a call centre or from a web site; but one-off contracts concluded by email are not intended to be caught by the Regulations);
where the supplier communicates with the consumer without ever coming face to face with the consumer up to and including the moment at which the contract is concluded (i.e. by 'distance communication').
Means of distance communication would include:
unaddressed or addressed printed matter (this could include leaflets dropped through letter boxes);
letters;
press advertising with order forms;
catalogues;
telephone with or without human intervention;
email;
fax; and
television (teleshopping).
Exempt distance contracts
The Regulations do not apply to all distance contracts and there are a number of exemptions from some or all of the provisions of the Regulations.
The Regulations do not apply at all to:
most contracts for the sale or transfer of land or for building on land, except short rental agreements;
contracts for the supply of financial services;
contracts concluded by means of an automated vending machine or automated commercial premises e.g. pictures taken from an automated photo booth;
contracts by telephone through the use of public pay-phones; and
contracts concluded at auction (although draft guidance on the Regulations suggests that it must be a genuine auction in order to qualify for the exemption – "buy it now" slots on internet auction sites will not be exempt as such sales are not concluded by a process of auction).
Separate regulations control the sale of financial services at a distance.
In addition, some parts of the Regulations do not apply to:
contracts for the supply of food, beverages or other goods intended for everyday consumption supplied to the consumer's residence or to his workplace by regular roundsmen (e.g. a milkman, but not a supermarket); and
contracts for the provision of accommodation, transport, catering or leisure services, where the supplier undertakes, when the contract is concluded, to provide these services on a specific date or within a specific period.
The exemption is in respect of the provisions relating to:
information given to the consumer prior to the conclusion of the contract;
written confirmation;
cancellation rights;
recovery of money paid by the consumer;
return of goods by the consumer after cancellation;
goods given in part exchange; and
mandatory performance of the contract within 30 days.
Each of these provisions is discussed in more detail below.
What are the requirements of the Regulations?
The Regulations require a supplier to:
Give consumers certain information prior to conclusion of the contract.
Give consumers confirmation in writing or in another durable medium which is available and accessible to the consumer (email is acceptable, but providing the information on a website is not), of the prior information and also provide consumers with additional information (e.g. in respect of cancellation rights). The term "in writing" is used as a convenient shorthand and references in this article to confirming information "in writing" should be read as including "or in another durable medium which is available and accessible to the consumer".
Repay sums paid by consumers within a certain time period.
Perform the contract within a certain time period.
Prior information
A distance contract will not be enforceable against a consumer unless the supplier has provided to the consumer in good time prior to the conclusion of the contract the following information:
the identity of the supplier and (where the contract requires payment in advance) the supplier's address;
a description of the main characteristics of the goods or services;
the price of the goods or services, including all taxes;
delivery costs, where appropriate;
the arrangements for payment;
the arrangements for delivery or performance of the service, e.g. when the customer can expect delivery of the goods or performance of the services;
the existence of a right of the seven day cooling off period;
if the consumer is to use a premium rate telephone number, the cost of the call must be specified before charges are incurred for the telephone call;
how long the price or any special offer remains valid;
the minimum duration of the contract in the case of a contract to supply goods or services continuously (e.g. in a contract for a mobile phone or for cable TV services), or recurrently (e.g. in a contract with a monthly book club);
whether or not substitute goods or services may be provided in the event of those ordered by the customer being unavailable; and
notification that the supplier will meet the costs of the consumer of returning any substitute goods he or she does not want.
This prior information must be provided in a clear and comprehensible manner which is appropriate to the means of distance communication used (e.g. if the customer has contacted the supplier by email, it may be reasonable for the supplier to provide the prior information by email).
If a business cold calls consumers by telephone, there are special rules regarding any distance contract concluded during the course of the conversation. The contract will not be enforceable unless, at the beginning of the conversation, the supplier has made its identity and the commercial purpose of the telephone call explicitly clear.
In the case of a dispute, the supplier must prove that the information was provided in accordance with the Regulations. However, this requirement should not cause too many difficulties as it can be built into the telescript quite easily and, in any case, most suppliers operating over the phone would have to provide such information in order to comply with data protection legislation.
Written confirmation and additional information
Suppliers must provide the consumer with confirmation of the prior information otherwise they will not be able to enforce the distance contract. This confirmation must be in writing, e.g. by email.
In addition to confirming the prior information, the supplier must also provide the following information to consumers in writing:
a statement that the consumer has a right to cancel the contract if he wishes and how this right can be exercised;
details of the cancellation process to enable the consumer to cancel the contract, including the provision of the name and address of the person to whom the consumer should send the notice;
whether the consumer or the supplier is responsible for the cost of returning the goods to the supplier if the consumer cancels;
in the case of contracts for the supply of services, information on the consequences of agreeing to performance of a service starting before the end of the usual seven working day cancellation period (see "Exceptions to the right to cancel" below);
the geographical address of the place of business of the supplier to which the consumer may address any complaints;
information on any after-sales services and guarantees; and
the conditions for cancelling the contract, where it is of an unspecified duration or a duration exceeding one year.
This information must be given to the consumer either:-
prior to the conclusion of the contract, or
in good time before or during the performance of the contract and, in contracts for the sale of goods, at the latest at the time of delivery of the goods where goods not for delivery to third parties are concerned. This means that where consumer A orders goods to be despatched to consumer B, the information must be given to consumer A prior to the conclusion of the contract.
The supplier in a contract for the supply of services shall not be subject to the obligations to provide written confirmation and additional information where those services are supplied on only one occasion and are invoiced by the operator of the means of distance communication.
However, the supplier must take all necessary steps to ensure that the consumer in such a one-off contract is able to obtain the supplier's geographical address and the place of business to which the consumer may address any complaints.