Introduction to online sales – The legal aspects of the business Quick Course on e-Commerce

Introduction Education Graduate University of Aahus law school Attorney at Law European Trademark Attorney, OHIM MBA – Henley Business School, London – 2009 Business experience Attorney at law, JP& CO + JHM. Legal & Complience manager, GE Capital Bank Trademark attorney, Awapatent COO, Tech Transfer Office Managing director, Awapatent Denmark

Headlines 1.Electronic agreements 2.“Distance selling “ – disclosure requirements 3.Return rights 4.Online marketing 5.Payment 6.Defects, delays and consumer remedies 7.Personal data protection 8.Questions

1. Electronic agreements No formal requirements in Danish Contractual Law Necessity: “State of will to be committed” or “meeting of minds” Distinction between an offer and an invitation to make an offer In general, it all depends on the content of the order confirmation/ Rule of thumb: –Considered as an offer, if the website consists of product and price information along with an ordering function –Dispatch of order confirmation has no relevance towards the agreement –Therefore it’s up to the seller to keep the website product portfolio daily updated in order to reflect the products he/she’s able to deliver If considered as an invitation to make an offer – the order confirmation works as an accept to the customer’s offer

1. Electronic agreements, continued Terms and conditions –Have to be clearly separated from the website’s other information –Have to be given to the consumer before the sale The seller is according to the Act on e-Commerce obliged to send to the buyer an electronic confirmation order immediately after the seller has received the order

2. “Distance selling “ – disclosure requirements Act on Consumer Contracts (forbrugeraftaleloven) –Consumer protection! –Online sales = distance selling Agreement by ”distance communication” meaning no physical meeting between consumer and seller –Some products are not covered by the act, i.e. foods, transportation services etc. –Disclosure obligations for the seller Name, main activity, physical address, supplier relationships, description of the products, price, terms of payment and delivery, return rights, expiration of offer/product –In general, this information has to be given in reasonable time (before the sale) and have to be clear, understandable and accessible

2. “Distance selling “ – disclosure requirements, continued This information has to be given to the consumer in a written and durable medium (exception; i.e. sms based services) Special disclosure requirements for financial services! Failure to meet requirement: - Right of cancellation postponed - Fine

3. Return rights Act on Consumer Contracts –Return right on certain purchases The consumer has the right to withdraw from the agreement without further costs Only consumers Some products are left outside the return right Length: –14 days; from the day the consumer receives the product or the information according to the Act on Consumer Contracts, unless produced or customized, then from day of agreement –Maximum return period is 3 months from delivery Consumer requirements –Made use of the right before the period has ended –Returning the product in the same condition as received (consumer pays!) –Sealing intact –Certain products are not covered if the seller has made it clear for the consumer that the return right has been withdrawn at the time of purchase (e.g. downloads and streaming)

4. Online marketing Requirements according to the Danish Marketing Act –Good marketing practices –All marketing has to be formed and presented in a way in which there is not doubt that it is a marketing action No hidden marketing –No unreasonably intrusive marketing If the advertisement is not a natural part of the website is has to be easy for the consumer to remove it –Ban against deceptive and unfair marketing –Certain demands towards comparative advertising –Unsolicited inquiries (spam mails, newsletters etc.) Accepted if the consumer’s has been received in a sale –Restrictions on marketing targeting children and young people

5. Payment Three types of payment 1.Payment with credit card when ordering online or by home banking i.Prerequisite: the online web shop has entered into an redemption agreement with PBS or a bank ii.Regulated by the Act of Certain Means of Payment (consumer protection) i.The seller not allowed to launch a payment transaction without the consumer’s explicit consent ii.Charge back possibility for the consumer iii.Consumer ombudsman’s guidelines on “Guidelines for distance selling etc. in payment systems by credit card) 2.Payment at delivery (pr. efterkrav) 3.Credit purchases

5. Payment, continued The consumer - receiver relationship –If the consumer’s payment is either absent or delayed due to a charging or registration error then the seller can’t raise the purchase or demand damages Redemption agreement –The seller isn’t allowed to induce a credit card payment transferred to his/her bank account before the product has been shipped to the customer Receipt from the seller –The seller is obliged to send a specified receipt to the consumer, at the latest, at the time of the seller payment request to the bank for every transaction This receipt has to contain: information on the date of shipment and delivery of the ordered products, the total amount, type of credit card used for the transaction

6. Defects, delays and consumer remedies Consumer goods purchase Act (købeloven) –An online sale – B2C Seller legal obligations (Sale of Goods Act) –Deliver to the time promised (if no agreement, maximum of 30 days) – crucial for deciding who has the risk of the product –Product free of defects –If the seller has defaulted the purchase (defect or delay) and the consumer has three different remedies Defect (Specific performance promised) >> Replacement or Repair Cancellation of the purchase Claim damages Complaint –The consumer must complain to the seller within a reasonable time after the discovery of the defect or when noticing the delivery is delayed Within two month after discovery is probably within reasonable time –Legal complaint period – maximum 2 years

7. Personal data protection The Personal Data Act Personal data = both general and sensitive information –The consumer has to give his/her consent in order for the seller to treat (collect and register) the consumer’s personal data –The seller has an obligation to make the consumer aware if it uses cookies –The consumer has to give his/her consent before the personal data can be transferred (sold), except general consumer information such as: name, address, -address and age –The public “Robinson list” has to be reviewed (

8. Questions ? Thanks for listining