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A link to information available on the vendor’s website could satisfy provisions of Article 5 of Directive 97/7/EC about distance contracts which provides, in particular, that consumers must receive confirmation of given information in a durable medium?

This case, arising from a reference for a preliminary ruling from the Wiener Oberlandesgericht, (Higher Regional Court, Vienna), is currently being reviewed by the Court of Justice.

The case at hand concerns an action filed by the Bundesarbeitskammer, (Federal Chamber of Labour) – a body which is also responsible for consumer protection – against Content Services, a company which runs the internet site opendownload.de.

Through such internet site, users can download free or demo/trial software, after having signed up to an online subscription, in which the aforementioned users have to declare, by ticking a box, that they accept the general terms and conditions and that they waive the right of withdrawal.

In particular, two elements should be pointed out: a) information concerning the right of withdrawal is not shown directly to the customer (however, it is possible to view it by clicking on a hyperlink on the contract sign-up page);.b) after concluding the contract, the customer receives an email message containing access data to such service (username and password) with no reference to general terms and conditions and, in particular, to the fact he has waived the right of withdrawal.

Directive 97/7/EC on consumer protection in distance contracts requires, however, under article 4, that, before concluding any distance contract, the consumer has to be provided with a range of information (in particular, the fact that he or she has a right of withdrawal). Moreover, article 5 provides that the consumer has the right to “receive”, when the contract is performed, written confirmation of the information referred to in Article 4 (with particular reference to the existence of the right of withdrawal) on a “durable medium”.

The problem is that the aforementioned Directive does not contain a definition of “durable medium”.

Such definition is, anyway, contained in Directive 2011/83/EC (which will replace Directive 97/7/EC) which clarifies that a durable medium is any instrument that enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored’. Moreover, recital 23 in the preamble provides that durable mediums “should include in particular paper, USB sticks, CD-ROMs, DVDs, memory cards or the hard disks of computers as well as e-mails”.

In any case, we would point out that the referring party did not ask the Court to provide an exact definition of “durable medium”, but only asked to determine whether or not making the information required by article 4 available on a web page (accessible through an hyperlink) may satisfy the obligation to provide the consumer with such information in a durable medium.

In the light of the above, the General Attorney, in his opinion, dated 6th March 2012, pointed out that the provision of the information to the customer, in accordance with article 5, involves two fundamental elements:

a) the customer must “receive” the information. As a result, the customer must not need to make any active effort to obtain such information (article 4, on the other hand, requires that such information has to be “made available”;

b) the customer must be able to “take control” of such given information. As a result, it is necessary that such information remains available to him in a reliable manner and for an adequate length of time;

The General Attorney rightly highlights that, in some specific cases, a website can also constitute a durable medium if the customer is able to store the information received for a sufficient period of time and if such information is not changeable by the person who provided the information (see EFTA, decision of 27th January 2010, Inconsult Anstalt E4/09).

Such conditions cannot, however, be met by a common web page which is not placed under the control of the user, but under the control of the person who publishes it, who may, whenever he so chooses, modify or delete it at will.

It has to be pointed out, in fact, that article 10.3 of Directive 2000/31/EC (e-commerce directive), has introduced the obligation for the provider to make the contract terms and general conditions to be provided to the recipient available in a way that allows him to store and reproduce them.

In compliance with article 13 of Legislative Decree no. 70/2003, the service provider has, moreover, to acknowledge receipt of the consumer’s order (which shall also summarize the general terms and conditions applicable thereto), with a view to providing the latter with proof thereof that may be produced in a possible judgement.

In the light of the above, we are of the opinion that – without analyzing Italian consumer law contained in legislative decree no. 206/2005 – the fact that written confirmation of the general terms and conditions is not sent to the consumer is not compliant with EU law.

Another question is, obviously, to identify a durable medium which may have full evidentiary value.

At the present moment, in the Italian law system, such full evidentiary value is guaranteed only in the event that an advanced electronic signature, a qualified electronic signature or a digital signature is affixed to the electronic document.

The evidentiary value of documents containing a simple electronic signature or no signature at all (such as simple mail messages) may, on the other hand, be freely assessed by the judge.

In conclusion, we are awaiting the final interpretation of the Court of Justice which could, in fact, agree with the General Attorney, finally clarifying one of most controversial issue of last few years.

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