The Consumer Protection (Distance
Selling) Regulations 2000
When did the Regulations come
into force?
The Consumer Protection (Distance Selling) Regulations
2000, S.I. No. 2334 (‘the Regulations') were made on 31 August
2000 and came into force on 31 October 2000. They implement
the EU Distance Selling Directive (Directive 97/7/EC), which
was adopted on May 20 1997.
What do the Regulations cover?
The Regulations give legal protection to consumers who
purchase goods and services via distance means. A distance
contract is one where the consumer and supplier do not have
face to face contact up to and including the moment when the
contract is concluded. The Regulations cover the sale of goods
and supply of services concluded via e-commerce, as well as
other means of distance selling by more traditional means.
What types of legal arrangement are covered by
the Regulations?
The Regulations give legal protection to consumers who
purchase goods and services from businesses via a distance
contract. This is defined as a contract where the consumer and
supplier are not physically present together up to and
including the moment when the contract is concluded.
This includes:
- e-commerce and email sales;
- telephone and fax sales;
- newspaper, catalogue and mail order sales.
Can a supplier contract out of the
Regulations?
No. If a term contained in a contract seeks to contract out
of the provisions of the Regulations, it will be void and of
no effect.
Do the Regulations apply to all distance selling
contracts?
No, the following contracts are excepted:
- Contracts for the sale of land or construction of
buildings.
- Contracts relating to financial services (a separate
directive on the distance marketing of financial services,
Directive 2002/65/EC of 23 September 2002, is to be
implemented by 9 October 2004).
- Contracts concluded by means of an automated vending
machine or automated commercial premises.
- Contracts concluded with a telecommunications operator
through the use of a public pay-phone.
- Contracts concluded at an auction.
There are also
special derogations for food and drink delivered by milk
roundsmen and the like, and for contracts for accommodation,
transport, catering or leisure services to be provided on a
specific date or within a specific period.
What rights do consumers have?
1. The right to be provided with information
relating to the transaction in advance of any contract being
made.
Suppliers are required to provide the following
information:
- the name and address of the supplier (the latter where
the contract requires payment in advance);
- the main characteristics of the goods or services;
- the price of the goods or services including all
taxes;
- delivery costs where appropriate;
- arrangements for payment, delivery or performance;
- the existence of a right of cancellation (except where
this does not apply);
- the cost of using the means of distance communication
where it is calculated other than at the basic rate
(presumably this means that if a premium rate telephone line
is used, the cost must be specified);
- the period for which the offer or the price remains
valid;
- where appropriate, the minimum duration of the
contract.
In addition the supplier must inform the consumer if he
proposes to provide substitute goods or services of equivalent
policy and price in the event of goods or services being
unavailable, and that the cost of returning substitute goods
in the event of cancellation will be met by the supplier. The
supplier must make his commercial purpose clear, and in the
case of a phone call must identify himself at the outset.
2. The right to receive written
confirmation.
The consumer must be given confirmation in writing or other
durable medium, which must include details of the transaction,
the conditions for exercising the right to withdraw from the
contract, any cancellation conditions, after sales service and
guarantees, and a physical address to which complaints can be
sent, if necessary. The Regulations are not specific about the
means of written information or other "durable medium" because
of the constant developments by which communication is
possible. However, the DTI have confirmed that e-mails are
considered a durable medium and therefore an acceptable method
of sending confirmation.
3. The right to withdraw from the
contract.
The consumer has an unconditional right to withdraw from a
distance contract within a cooling off period of seven working
days and have their money refunded. Any related credit
agreement will be cancelled automatically, and the supplier
must inform the creditor accordingly.
For the supply of
goods, this period will run from the day after the day on
which the consumer receives the goods, and for the supply of
services this period will run from the day the contract was
concluded.
4. The right to receive delivery of
goods/services within 30 days, unless otherwise
agreed.
If the supplier does not perform the contract and deliver
the goods/services within 30 days, then unless the parties
have agreed to a longer period the consumer will be
automatically entitled to a refund, unless substitute goods or
services are supplied and he or she accepts them. If a refund
is requested it must be made within 30 days.
Can the cooling off period of 7 days be
extended?
Yes, if the supplier fails to provide the required
information (as noted above), or if the supplier fails to
perform the contract, the cooling off period for the right to
withdraw from the contract will be extended by up to 3
months.
Are there any exceptions to the right to withdraw
from a contract?
Yes, the right to withdraw from the contract does not apply
(unless the parties have agreed otherwise) to contracts
for:
- the supply of goods or services the price of which is
dependent on fluctuations in the financial market which
cannot be controlled by the supplier;
- the supply of goods made to the consumer's
specifications, or which by their nature cannot be returned
or are liable to deteriorate or expire rapidly (e.g. pizzas
and flowers);
- the supply of audio or video recordings or computer
software if they are unsealed by the consumer;
- newspapers, periodicals, magazines;
- gaming, betting or lottery services;
or where the
supply of a service begins before the end of the cooling-off
period (and the consumer has been informed of this).
What must the consumer do?
A consumer who cancels a distance contract after receiving
any goods supplied under the contract must restore them to the
supplier and take reasonable care of them in the meantime. The
consumer is only under a duty to deliver the goods to the
supplier at his or her own premises, on receipt of a request
in writing or other durable medium. Once the consumer has done
so, or sends them back to the supplier at his or her own
expense, he or she is no longer obliged in any way to take
care of the goods. Where the consumer sends the goods back, he
or she has to take reasonable care to ensure the goods are
received undamaged, but has no further obligation.
Are there any criminal penalties under the
Regulations?
No, the DTI considers that the sanction of an extended
cancellation period for failure to provide information, and
the availability of an injunction against any person
responsible for a breach of the Regulations, are sufficient to
ensure compliance with the Regulations.
However, the DTI is considering whether it would also be
appropriate to give consumers the right to claim compensation
for any loss they suffer as a result of failure by a supplier
to comply with the Regulations and, if so, the Regulations
will be amended at a later stage to add the necessary
provisions
The law stated in this Guide is believed to be
correct as at November 2003.
This Guide does not purport to
be comprehensive or give specific legal advice. Before any
action is taken on matters covered in this Guide, you should
obtain professional advice.
© Davenport Lyons 2003. All rights
reserved
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