Online Contracting: Distance and telephone selling with consumers
On the occasion of the celebration in yesterday’s World Day of Consumer Rights, which has its origin in the manifestations outlined in the speech delivered on March 15, 1962 by US President John Fitzgerald Kennedy -“Being consumer by definition, we inclusive. We are the largest economic group on the market, affecting and affected by almost all economic, public and private, decisions; but it is the only important group whose views are often not heard“-should make special emphasis on consumer rights in online contracting.
In this sense, the proliferation of digital content and the key factor played by new technologies in today pose a tough challenge for consumer law, which has not been able to respond appropriately and has adapted to the constant changes produced by the e-commerce. However, with the publication in Spain of Law 3/2014, of March 27, following the transposition of Directive 2011/83/EU of the European Parliament and of the Council on Consumer Rights dedicated to regulate distance contracts and contracts negotiated away from business premises, a major breakthrough involving the relevant specification and expansion of consumer rights and the need for greater obligations for traders occurs; except mainly on package travel services, financial services, passenger transport with certain peculiarities, gifts and free services.
In all commercial communications distance shall contain unequivocally its commercial nature. Since the entry into force of Law 3/2014 the realization of sales calls (phone spam) on holidays, weekends and working between 21:00 and 9:00 is prohibited. In any case, the sales calls must be made from one telephone number recognizable. Furthermore, the performance of commercial automated calls without human intervention without the express consent of consumers and users are not allowed.
Among the measures to highlight most significant contemplated by Law 3/2014 are those relating to the pre-contractual information to be supplied the entrepreneurs to consumers on distance contracts and contracts concluded away from business premises. Thus, the Act impose upon the entrepreneur the obligation to provide prior to the establishment of the contractual relationship relevant, accurate and sufficient information. Finally of analyzing the necessary Pre-contractual information on procurement by electronic means, we must turn to the LSSI.
Online or distance contracts:
Celebrated verbal contract, the consumer is entitled to receive documentary confirmation of the contract within a reasonable time, as maximum at the time of delivery of goods or before the commencement of the provision of service, so the entrepreneur shall provide the consumer with a copy of the signed contract or confirmation of it also on paper or, if it is satisfied, on a durable medium different -email, fax, sms-. Otherwise, the contract may be canceled. As regards unsolicited services, and therefore not hired, if the entrepreneur without consumer acceptance and recipient user the offer, providing the good or service offered, the receiving consumer is not obliged to refund or custody, nor any payment may be claimed.
Right of withdrawal:
In order to protect the rights of consumers, since the online contracting can give rise to serious difficulties for them as they have no real chance to see good or ascertain the nature of the service before the conclusion of the contract, the reform last year increased the minimum period for exercising the right of withdrawal of 7 days to 14 calendar days. If the entrepreneur has not provided the consumer with information on the right of withdrawal, the withdrawal period ending twelve months (12 months) after the expiration of the initial withdrawal period. The consumer, as a general rule, will handle the costs of returning. Note that the exercise of the right of withdrawal is excepted in several cases.
Fulfillment of the contract:
The delivery time of goods in an online or distance contracting is 30 calendar days from the day of ordering. For its part, the consumer is entitled to receive paper invoices without any additional cost.