Just to add to the varied list of legally required information on websites, we now have some additional items which apply to all online traders and online marketplaces. Although for many businesses there is no legal obligation to submit to alternative dispute resolution (“ADR”), online traders and marketplaces must provide consumers with a link to a new EU online dispute resolution (“ODR”) mechanism. The ODR doesn’t resolve disputes itself but puts traders and consumers in contact with authorised ADR providers in EU Member States and assists with translation and communication.
1. Who needs to do this?
a) Traders established in the EU and engaging in online sales or service contracts: i.e., where consumers have ordered goods or services offered on our (or our intermediary’s) website or other electronic means; and
b) Online marketplaces established in the EU: i.e., services provided at a distance that allow consumers and traders to conclude sales and service contracts over the provider’s website.
2. What information needs to be provided?
a) Where the trader or marketplace has decided to submit to ADR or is obliged to (by law or regulation – e.g. in the UK most providers of financial, energy or telecoms services and estate agents – or by the rules of their trade association, or by the relevant contract), then on on your website and email offers, and in general terms and conditions: (i) the name and website address of the ADR entity used; (ii) the existence of the EU’s ODR platform and the possibility of using it to resolve disputes; (iii) a link to the EU ODR platform (at http://ec.europa.eu/consumers/odr/).
b) For all others: (i) an easily accessible link to the EU ODR platform (at http://ec.europa.eu/consumers/odr/) on your relevant websites; and (ii) your email address.
c) In any event, if you receive a complaint that is not resolved after exhausting your internal complaint-handling procedure, you must provide the consumer with:
- a statement that you cannot settle the complaint;
- the name and website address of an ADR provider that COULD deal with the complaint, if the consumer wished to use it; and
- whether you are obliged or prepared to submit to an ADR procedure operated by that provider.
This still doesn’t require any trader to use ADR if you are not already obliged to do so but it seems likely that this could encourage consumers to contact ADR providers and at least initiate the process, even if you can still refuse to participate.
3. To ADR or not to ADR?
These items need to appear on websites already. There may be penalties for not doing so. If you are a B2B trader then they don’t apply in which case you may be well advised to include a note in your website or general terms underlining that you do not intend to contract with consumers.
Save for certain regulated sectors, there is no general obligation to offer ADR. And businesses may feel inclined to wait to see the decisions and track records of newly authorised ADR entities and the EU ODR system, and whether they really make consumers feel more confident in purchasing across EU borders. On the other hand, regulators are clearly encouraging their use and failure to consider ADR may also count against traders later in relation to recovering costs of court proceedings, so it might be time at least to weigh up the pros and cons.