Coronavirus (COVID-19) has changed the way we live, especially for those businesses who no longer have the ability to sell in person and need to look at online sales.

Online sales can seem easy. However, failure to comply with the legal requirements for online sales can have serious consequences, including unenforceable contracts, extended return periods, criminal liability, enforcement action and reputational damage.

We have set out below our top five key legal hot spots to be aware of when selling online:

1. The Right to Cancel

In general, for online sales, a consumer has a 14-day cooling-off period. However, there are different rules depending on the type of product. For example, goods, services and digital goods differ.

For goods, the cancellation period ends 14 days after the day on which the goods come into the physical possession of the consumer (or someone nominated to take delivery on their behalf). For a services contract, or a contract for the supply of digital content which is not supplied on goods or other physical media, the cancellation period ends 14 days after the day on which the contract is entered into. However, these time frames can change and certain exemptions gained. For example, a consumer must give their express consent before digital content can be downloaded. If no consent is given, the consumer and trader must wait 14 days before supply/download.

A failure to provide or comply with the right to cancel provisions can have serious repercussions, including extending the cooling-off period for over a year.

Please do, however, consider if your business benefits from an exemption from the right to cancel before giving consumers information about rights which they are not entitled to and therefore put your business under unnecessary financial/administrative risk. For example, there is an exemption for the supply of goods which are liable to deteriorate or expire rapidly (plus many more).

2. Information Requirements and Pre-ticked Boxes

When selling to consumers, you must provide them with certain information before the contract is concluded; for example, trader details and delivery and refund information.

If the contract is being concluded by electronic means, the trader must also ensure that the consumer, when placing the order, explicitly acknowledges that the order includes an obligation to pay. A failure to provide this puts the contract at risk of being unenforceable.

A trader must not use pre-ticked boxes which result in the consumer being charged for an item which they did not independently select during the ordering process.

3. Delivery and Faulty Goods

As a general rule, delivery of goods ordered online should be within 30 days, unless a longer time period has been agreed with the consumer. A delivery date (or estimate) should be specified before an order is confirmed. Services should be performed within a reasonable time where a specific date for performance has not been agreed. If the delivery date was essential and the trader does not deliver on time, the consumer could gain the right to cancel and get a full refund.

It is also important to note that the usual standards which are expected from products sold to a consumer at a shop, also apply online. For example, that the products must be of satisfactory quality, fit for purpose and correspond with their description. The associated remedies that are available to a consumer if these standards are not met also remain. 

It is important to note that any attempt by a trader to include terms in its consumer contracts which seek to restrict or exclude a consumer's rights in an unlawful way will not be enforceable and open the trader up to enforcement action.

4. Additional Considerations

Additional legal points to consider include:

• the Electronic Commerce (EC Directive) Regulations 2002(certain information requirements, website structure, and order acknowledgement);
• Consumer Protection from Unfair Trading Regulations 2008(prevents misleading and aggressive practices - breaches can result in criminal sanctions, including for individual directors);
• Consumer Rights (Payment Surcharges) Regulations 2012(ban excessive surcharges); and
• Consumer ADR Regulations(consumer right to alternative dispute resolution, including the European ODR platform)

*Certain changes may be made to these requirements after the Brexit transition period.

5. Never Forget Data Protection!

A trader must ensure it complies with data protection legislation when collecting and processing the personal data of users/consumers, including displaying compliant privacy notices. Failure can have serious consequences for a trader - including investigations, fines and bad PR.

If you require specialist legal advice on switching to selling online, please contact Laura Barrell in the Commercial team at award-winning law firm VWV on 01923 919 313 or lbarrell@vwv.co.uk.