6 March 2012 - AG Mengozzi's opinion in the case C-49/11 (Content Services)
The issue raised in this case concerned interpretation of Article 5 of the Distance Selling Directive (Directive 97/7/EC). Article 5 states that upon conclusion of a distance selling contract consumers must receive confirmation of certain information in a 'durable medium'. The question asked by the German court to the CJEU was whether information available on the vendor's website, that consumers can access by clicking on a link displayed at the time when the contract is concluded, may be regarded as having been given to the consumer in a durable medium. Short answer: no, it may not.
The company Content Services operates an internet site (opendownload.de), which is configured in German and enables internet users to download free software by providing a collection of links to programs that are freely available on the internet. This website may also be accessed by internet users in Austria. (Par. 9) The subscription to use this website was EUR 96 for one year. Internet users enter into a contract by filling in an interactive web page form on which, in particular, they need to tick in a box accepting the general terms and conditions and waiving their right of withdrawal. The information on the right of withdrawal (that needs to be given pursuant to Article 4 and 5 of the Directive) is not shown directly to the consumer. The consumer may access this and other information by clicking on a hyperlink on the contract sign-up page. (Par. 10) After concluding a contract, the customer receives an email with his user name and a password. The email does not mention the right of withdrawal. Following communication is an invoice for EUR 96 which reminds the customer that he had waives his right of withdrawal. (Par. 11)
The problem of this case is that a customer who may want to download free software online, only upon signing up at a website may realise that he had just concluded a subscription contract. Normally, upon realising that fact consumers would have withdrawn from a contract, but in this case they had waived their right of withdrawal. The company claimed that this waiver was valid, taking into account the fact that they made the information on the waiver of the right of withdrawal available on their website, which is in accordance with Article 4 of the Directive. (Par. 18) Content Services argued that confirmation of that information is not necessary since Article 5 stipulates that such a confirmation should be given:
"(...) 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 AG considers that Article 5 places two fundamental requirements on the vendor: firstly, the consumer must receive the information; secondly, the consumer must be able to take control of the information. (Par. 23-26). The first element means that the information must be conveyed without the customer having to make any active effort to obtain it (which is confirmed by the language chosen in the Directive). (Par. 24) This is justified by the protective purpose of the Directive, which should bind towards all customers, even the less careful ones, who may not be able to recover the relevant information. (Par. 25) The second element aims at making consumer protection more effective, by making sure that the information is not conveyed to customers fleetingly and that they may consult it at a later time in order to be able to enforce their rights. (Par. 26) The fact that the information shall be conveyed on a 'durable medium' means that the consumer should have an opportunity to store, recover and reproduce the information over an adequate period of time. (Par. 27)
Taking into account these fundamental requirements the AG states the following about the case at hand. Firstly, requiring the customer to click on a hyperlink on the contract sign-up page in order to view the necessary information means that the customer needs to undertake a deliberate act, putting him in the 'active' role. Even if the action involved in clicking on a hyperlink is not difficult, it still means that the information is not 'received' by the customer but needs to be obtained by him. (Par. 31) The AG emphasises that there does not seem to be any technological difficulty that would prevent the Content Services to provide the customer with the necessary information, taking into account that they electronically correspond with their customers. (Par. 32) Secondly, the AG considers whether a website could be seen as a durable medium. He recalls a recent EFTA judgment of January 2010:
"In that judgment, the EFTA Court found that, in principle, a website too can constitute a durable medium, provided that three cumulative conditions are met. Firstly, the site must allow the consumer to store the information received. Secondly, that storage must be guaranteed for a sufficiently long period: the period of time for which it must be able to be stored cannot be specified generally, but must be determined case by case. Finally, for the user’s protection, it must not be possible for the person who provided the information to change it." (Par. 39)
What is important in that evaluation is the question whether the information has been placed under the customer's control and is no longer under the control of the person giving it. (Par. 42) Pursuant to the AG a general web page, such as the page of Content Services, does not satisfy these conditions, since it is not placed under the control of the person who consults it, but remains under the control of the person who publishes it. This means that, e.g., Content Services could alter or delete this information at will. The claim that the user could act to print or store the page before it is changed should be rejected since then the user would be generating the durable medium and not the vendor. (Par. 43) As a final remark, the AG mentions that even if a website could be seen as a 'durable medium', the consumer is still supposed to 'receive' the information which means that placing a link to such a website (either on home page or in an email) still does not satisfy the first element of this test. The AG suggests that placing that information directly in the text of the email seems to be much simpler and more in the spirit of the Directive.
I disagree with that last remark of the AG. Imagine that the consumer is aware of the fact that the information is stored on a website since, e.g., the online vendor could make visiting such a website a mandatory step of the sing-up process. The consumer could not move further with his online registration if he had not visited that website. Or, upon conclusion of the contract, the browser could automatically open the website with the information - without the need for the consumer to click on a hyperlink. Well, in such a situation, having a hyperlink to that website stored in an email should not be seen any differently then the consumer looking up a letter in his archive. In both cases in order to re-access and consult the information the consumer needs to take certain physical action. It doesn't seem to make much difference whether the action would consist of finding the right letter among others and opening an envelope, or finding an email in an inbox and clicking on a hyperlink in it.