If you... sell remotely
Many businesses take customer orders remotely - over the phone, by the Internet or fax. Sometimes they approach consumers in their homes or, on the street.
In all these situations your customers may not be in a shop or office, but you are still selling to consumers, so they have rights under the Sale of Goods and Supply of Services Act. There are several additional regulations you must take into account when transacting with people away from a business premises.
If they buy goods or services which turn out to be faulty or not of satisfactory quality, they may be entitled to a repair, replacement or refund from you as a retailer. And if they are given false or misleading information regarding how you describe your goods or services, they may also be due a refund.
The customer does not have to bear the cost of returning the goods to you if these are:
- Faulty
- Not of satisfactory quality
- Different to the ones ordered (do not match their description) or
- Substitute goods
The key legislation in this area covers issues such as:
- Distance selling
- e-Commerce (if you take orders via the Web or email)
- Doorstep selling
- Data protection
Distance Selling
If customers place orders with you remotely - over the phone or internet, for example - in consumer law this is called "distance selling". Remember that your customers do not need to be given a physical agreement on paper to have a distance contract with you. However, you do have to provide potential customers with specific information about you and the contract before it may be enforceable (see Information You Must Provide).
Information You Must Provide
Before concluding the distance contract with a customer, you must give them the following information in a clear and comprehensible manner:
- Your identity as the supplier and, in the case of contracts requiring payment in advance, your address.
- The main characteristics of the goods or services
- The price, including any taxes
- The delivery costs if any
- The arrangements for payment, delivery or performance
- The existence of a right of cancellation, where appropriate
- The cost of using the means of distance communication, where it is calculated other than at the basic rate (for example, if it involves customers making a premium rate phone call)
- The period for which the offer or price remains valid
- The contract's minimum duration if it's for supplying goods or services on an ongoing basis
The customer is also entitled to the following information, which you should provide before or at the time of delivery of the goods or service:
- Written or other durable form of confirmation of your order (for example a letter, email or fax) that includes the information listed above (the identity of the supplier and so on)
- Written information on how to cancel
- A geographical address of the place of business to which they can address any complaints
- Details of any guarantees or after-sales services, if applicable
- Details of how and when to end a contract, if there is no specified finish date or it lasts for longer than a year
Cooling-Off Period
You must provide customers with a "cooling off" period which is a minimum of 7 working days. However, this period can be extended to three months if you do not provide the customer with all the relevant information about the contract within 30 days of their order.
Consumers have the right to cancel their order with you during this period, without penalty and without having to give you a reason. The cooling off period starts on the day your goods are delivered to their home, or on the day when the customer makes the contract for a service.
Clearly, then, the best policy is to provide all the information that you are required to give under the EU regulations as quickly as possible.
Situations when customers cannot cancel
The customer's right to cancel does not apply in certain circumstances, such as where the goods (or services):
- Are customised or perishable
- Have a price subject to fluctuation (for instance, in online share trading)
- Are newspapers, magazines or periodicals
- Are gaming or lottery services
- Began with the customer's consent before the end of the cooling-off period. Remember, the cooling-off period only starts on the day that the customer receives all of the relevant information on the contract
- Relate to food, drink or other goods for everyday consumption "delivered by regular rounds men" (such as milk)
- Relate to accommodation, transport, catering or leisure services to be provided on a specific date or within a specified period (such as airline tickets, hotel bookings or concert tickets)
If goods are unavailable
Where goods are unavailable you must inform the customer, then refund them within 30 days.
You can supply equivalent goods if the original order is unavailable, but only if the customer consented to this in their contract with you.
Goods and services excluded
The distance selling regulations do not apply to:
- Auctions
- Financial services, like banking or insurance (but financial services are covered by the e-commerce regulations when you shop online)
- Goods bought from a vending machine
- Goods or services bought using a public payphone
- Contracts for the construction and sale of land/buildings
Online Selling (E-Commerce)
The EU's distance selling regulations apply to most types of online selling. However, There are also e-commerce regulations which cover all online sales. The e-commerce regulations apply to all web traders.
The e-commerce regulations require that all of the information listed above (including the cooling-off period) be provided, but the following information is also required;
- Full details of the service provider including your geographical address and email address
- Special offers such as promotions (discounts, premiums, gifts) and promotional games should be clearly identifiable, with information about their terms and conditions
- Unsolicited offers not requested by the consumer should be prominently displayed on your website and at every point where they are asked to provide information (such as a form)
- Your registration number if you are registered in a trade or public register
- Your VAT registration number if the activity is subject to Value Added Tax
- Where the activity is subject to an authorisation scheme, the details of the relevant supervisory authority
- If you as the service provider are a member of a regulated profession, any professional body or similar institution with which you are registered; your professional title and the EU member state where it has been granted; and a reference to the relevant professional rules in the member state of establishment and the means to access them
For contracts to be concluded electronically, you should provide the following information:
- The different technical steps that need to be followed to conclude the contract
- Whether or not the concluded contract will be filed and accessible
- A method of identifying and correcting input errors prior to placing an order
- The language(s) in which the contract may be concluded.
- The terms and general conditions of the contact to be made available in a way that allows them to be stored and reproduced
You should provide an acknowledgement of receipt of the order, without undue delay and by electronic means. The order and acknowledgement of receipt are considered to be received when the parties to whom they are addressed are able to access them.
Goods & Services Excluded
While certain goods or services are excluded from the distance selling regulations (see above), they are still covered by the e-commerce regulations, where appropriate.
Doorstep selling
If you sell goods or services on somebody's doorstep, they are also still entitled to their general rights as a consumer. But they have further rights if you arrive uninvited. Consumer law calls this "doorstep selling".
Under the doorstep selling legislation you must give customers a written contract, and tell them about their right to cancel. This cancellation period must be at least seven days.
The doorstep selling rules cover unsolicited visits not just to people's homes but to their workplaces too if you are offering them goods/services as consumers rather than in their business capacity.
Enforcement
The National Consumer Agency enforces the distance selling, e-commerce and doorstep selling regulations and can investigate possible breaches.
Data Protection
You may also have obligations under the Data Protection Act as a "data controller". Being a data controller carries with it serious legal responsibilities, so you should be quite clear if these responsibilities apply to you and your business.
In essence, you are a data controller if you can answer YES to the following questions:
- Do you keep or process any information about living people?
- Do you also decides what personal information is going to be kept?
- Do you decide the use to which the information will be put?
Your website will also require a privacy statement to comply with the Data Protection legislation and EU regulations if it does any of the following:
- Collects personal data (visitors filling in web forms, feedback forms, etc)
- Covertly collects personal data (IP addresses, email addresses)
- Uses cookies or web beacons
A web beacon is a small image in a HTML page with all dimensions set to one pixel.
Because of its insignificant size, it is not visible, but it can be used to pass certain information anonymously to third-party sites. Mainly used by advertisers, it is sometimes also referred to as a web bug or an invisible GIF.
Unsolicited phone calls, spam and junk mail
Consumers also have rights if they find themselves receiving:
- "Cold calls" from your marketing people over the phone
- Marketing messages sent as SMS text messages or multimedia messages to mobile phones, or messages sent to email accounts
- Junk mail in the post
- Spam - unsolicited electronic junk email sent indiscriminately
This kind of direct marketing is now an offence in some situations. As the sender of such messages, you could be liable to a fine of up to €3,000 per call or message, so always think twice before doing these types of mass mail-outs, emails or phone calls.
Businesses based in Ireland have various legal responsibilities- particularly in terms of contacting people who are not already their customers or who have not given their consent. So it is well worth checking the Data Protection Commissioner's website and other relevant information sources so that you and your staff are fully aware of your obligations.
Under the Data Protection laws, people have the right to have their details removed from a direct marketing database. They can insist, for example, that any data you collect about them is accurate, up-to-date, "adequate, relevant and not excessive", and that you keep it safe and secure.
If you are a member of the Irish Direct Marketing Association, the representative body for direct marketers in Ireland, you may also have to comply with its "Mailing Preference Service". If someone submits their details, they must be removed from the marketing databases of some of the main direct marketers in Ireland.
Consumers can also ask their telecom providers to register their objections to telephone marketing calls in the National Directory Database.