1. E-commerce: An Introduction Jon Fell 21 November 2007

2. Overview Contract formation Selling on-line Data Protection Web Site Accessibility

3. Contract formation

4. Essential Elements of a contract Offer Acceptance Consideration Intention to be bound Certainty

5. Offer and Acceptance Service provider can control the moment when the contract is formed Make sure you don’t agree to a contract before you should Pricing Errors

6. Offer or invitation to treat?

7. Inactive and Active terms Where the site takes payment we recommend that Ts & Cs appear on two pages: Inactive terms Link from every page / homepage Can include disclaimers / copyright notices Available as a point of reference, reassures users Keep a record of previous versions, applicable dates Active terms Appear during the ecommerce sales process

8. Active terms You need to make sure that customers are tied into the right terms and conditions Legally this means that the terms must be ‘incorporated’ into the contract formation Draw the terms and conditions to the user’s attention – present them to the user, and confirm that the user accepts them

9. Active terms Active terms: EITHER force user to scroll through full set of terms OR use a link and tick box to show acceptance of terms DO NOT rely on link alone Inactive terms: Prominent link Beware client-side validation Some Examples…

10. Contract formation Under the E-commerce regulations the service provider can control the moment when the contract is formed This is important, as it means that the supplier doesn’t have to enter into a contract at the time the consumer places order. Allows them to check they have stock, and avoid pricing errors

11. Selling On-line

12. Sale of goods – on-line rules E-commerce regulations (21 August 2002) Determines whose law applies Controls the information to be provided by web sites Deals with the liability of intermediaries Distance Selling regulations (31 October 2000) Controls information to be provided on conclusion Confirmation in writing

13. E-commerce Regulations Applies to “information society services” a service normally provided for remuneration at a distance by electronic equipment at the individual request of a recipient This includes: e-commerce sites businesses providing free information on a web site on-line ads, e-mail, video on demand, text messaging, ISPs, ASPs Established where business, not servers, based

14. Minimum on-line information requirements Present the following information in a form and manner which is easily, directly and permanently accessible Name/address/e-mail of service provider Company registration number Trade/professional association membership VAT number Prices to be clear and unambiguous State whether prices are inclusive of tax and delivery costs …and other technical information if selling online What does this mean in practice?

15. Information when selling on-line Information to be given prior to placing an order the technical steps to follow to conclude the contract whether or not the contract will be filed and/or permanently accessible technical means for identifying and correcting input errors prior to placing orders languages offered for the conclusion of the contract Provide link to any relevant codes of conduct to which you subscribe Not necessary if contract concluded by e-mail Terms and conditions must be made available in a way which allows user “to store and reproduce” them

16. Acknowledgement of order Electronic acknowledgement of order without “undue delay” Service provider can control moment when contract formed

17. Distance Selling Regulations Apply to consumer contracts Where supplier communicates with consumer without ever coming face-to-face Includes letters, fax, catalogues, telephone, e-mail, e-commerce, fax, or television sales. But excludes financial services (separately controlled)

18. Prior information Must supply prior to conclusion of contract : Identity of supplier and address Description of the main characteristics of goods Price, including taxes and delivery Arrangements for payment and delivery Existence of cooling off period The cost of any premium rate phone calls Any minimum contract duration Provide information clearly, comprehensibly in a manner appropriate to the means of distance communication used so make sure customers see this on your web site

19. Written confirmation and extra information Must provide consumers with confirmation of the prior information in writing (e.g. e-mail) Must also include: Name and address of supplier Statement about right to cancel and how to do it Who is responsible for cost of returns if cancelling Geographical address for complaints Details of any after-sales service or guarantees Give this information either Prior to conclusion of contract, or In good time before or during performance of the contract and, at the latest, at time of delivery (unless ordering goods for delivery to 3 rd party)

20. Right to cancellation period Consumer can cancel at any time within the cancellation period by giving written notice 7 working days Cancelled contract treated as if never entered into by consumer Must have consumer’s consent to start provision of services before end of cancellation period Some examples…

21. Right of cancellation exceptions Right of cancellation does not apply to: supply of services if performance of the contract has begun with the consumer's agreement supply of goods or services the price of which is dependent on fluctuations in the financial market supply of bespoke or personalised goods Supply of goods which by reason of their nature cannot be returned or are liable to deteriorate or expire rapidly supply of audio or video recordings or software if they are unsealed by the consumer supply of newspapers, periodicals or magazines gaming, betting or lottery services.

22. Data Protection

23. Data Protection Act 1984 EU Directive Data Protection Act 1998 Data Controller  Established in the United Kingdom  Equipment in the United Kingdom Personal Data jon.fell@masons.com

24. Data Protection Principles Data Must Be Processed Fairly and Lawfully Specified and Lawful Purposes Adequate, Relevant and not Excessive Accurate and up to date Kept no longer than necessary Processed in accordance Data Subject’s rights Security - Technical and Organisational Measures Not transferred outside of EEA

25. Data Subject’s Rights Access Right to know: Identity Data Controller Purpose Recipients Automated process

26. Data Protection Data protection notices ensure processing is fair and lawful Privacy policies are good practice Not required by UK law Imported from US Make it readily available to reassure users A privacy policy is unlikely to satisfy the legal requirements in the UK Difference is where and when each are used

27. Data Protection Notice Information must be drawn to the user’s attention Mandatory screen presentation Separate screen to click through On page where information submitted Do not rely on a link

28. Cookies Where you store information, or gain access to information stored, on a user’s computer (e.g. when using cookies, web bugs, clear gifs etc) you must tell the user: What tools are used and when How the user can control them No obligation to provide a cookie-free site

29. Web Site Accessibility

30. Overview What is web accessibility? What does the law say? What does this mean in practice?

31. How do disabled users access the web?

32. The social responsibility case “The power of the Web is in its universality. Access by everyone regardless of disability is an essential aspect." Tim Berners-Lee The web has been revolutionary for all, but particularly for disabled people. It has the potential to ‘bring the world to them’ There are 8.5 million disabled people in the UK, and 2.5 million registered blind people in the UK

33. The legal case Disability Discrimination Act 1995 s.19: unlawful for service provider to discriminate against disabled person in provision of goods, facilities and services s.21: duty on service provider to make reasonable adjustments Examples of services include “access to and use of information services” Websites identified as a “service” within the meaning of the Act in DRC Code of Practice, February 2002

34. What are reasonable adjustments? Service provider must take reasonable steps to adjust any practice, policy or procedure which makes it ‘impossible or unreasonably difficult’ for disabled person to access service No definition of “reasonable” in the Act Disability Rights Commission Code of Practice, February 2002 Would particular steps effectively overcome the problem? Is it practicable to take such steps? How disruptive will the adjustment be? Is the cost reasonable?

35. Guidelines and standards How do you make a website “accessible”? There is no universally agreed accessibility standard Business issues: British Standards Institute – Publicly Available Specification (PAS) 78 Technical issues: look at standards and guidelines from World Wide Web Consortium (W3C) W3C has a Web Accessibility Initiative (WAI) which includes the Web Content Accessibility Guidelines (WCAG)

36. WCAG checkpoint priorities and conformance levels Priority 1 (Level A) Site must satisfy this checkpoint, otherwise, one or more groups will find it impossible to access Priority 2 (Level AA) Site should satisfy this checkpoint, otherwise, one or more groups will find it difficult to access information in the document Priority 3 (Level AAA) Site may address this checkpoint, otherwise, one or more groups will find it somewhat difficult to access information in the document