New EU judgment on the use of cookies on websites and other obligations for web shop providers

Use of cookies

On October 1, 2019, the European Court of Justice handed down a ruling in the Planet49 case clarifying the rules for consent in the use of cookies.

It is thus a prerequisite for the use of cookies that the user's consent is obtained. In the case above, the company had obtained consent by using a pre-checked consent box which the user must actively uncheck to prevent giving their consent in the use of cookies. According to the European Court of Justice, this is not a valid consent. According to the European Court of Justice, it is required that the user actively gives one’s consent to the use of cookies.

In addition, it is a condition that the user is sufficiently informed about the purpose of the use of the cookies in question, how long they work and whether third parties can access them before the consent.

According to the new judgment, it is, therefore, extremely important to check up on your cookie policy and design the website so that a so-called "op-in" solution is introduced, i.e. that cookies are not used, unless the user expressly gives his consent to the use of cookies.

Requirements for the layout of the web shop - what information should be available

E-commerce is legally characterized as distance selling, meaning the company and the customer enter into an agreement without meeting physically, namely through the company's website. Since the company and the customer do not meet physically there are some rules in order to protect the customer and whom the company must be aware of when, for example, running a web shop.

It is a requirement that information about the company behind the web shop is easily accessible and clearly understandable to the customer. If the web shop addresses Danish customers, the information must be in Danish, regardless, of where the company behind the web shop is established. The company's address, CVR or other trade register number and telephone number must be clearly stated and, therefore, preferably on the front page or accessible via a link on the front page of the website. The information must always be up to date.

In addition, information on which payment methods can be used on the website should be readily available on the website.

A customer should easily be able to get in touch with the company behind the web shop. Therefore, the web shop must include both a telephone number and a customer service email address. This information must always be easily accessible to the customer. If the company receives a request from a customer, it must be answered as soon as possible. In addition, it is a requirement that a customer who writes an e-mail to the company immediately receives confirmation that their e-mail has been received. The company's e-mail system must, therefore, be arranged in such a way that automatic confirmations are sent on received e-mails. In addition, the telephone number provided by the company must not cost more than ordinary call tariffs.

It is important for the company that the requirements for the web shop's layout are met. The company may lose some of its rights if the correct information is not provided before a sale is made. The purchase may be void and the customer is thus not bound by the purchase.

Important rules before a sale

The duty of disclosure to the user applies not only to the information of the company, but also to information about the goods sold that also must be easily accessible on the website. The duty of disclosure thus includes both the specification, type, material, and size of the product, etc.

In addition, websites where customers can purchase goods must state the total price of a product, meaning the price including all fees, VAT, and any other expenses. Thus, the customer must be able to assume the price stated under the item directly above the "order button".

However, delivery prices are not something that must be recognized in a commodity price before the consumer presses “order”. The delivery price can, therefore, be stated when the customer is to complete his purchase. In this connection, the company must inform the customer of possible delivery methods and price thereof.

In addition, the company must inform the customer about the various payment options. If the customer pays by credit card, the purchase price can, as a rule, only be withdrawn from the customer's account when the ordered goods have been shipped to the customer and not before that time.

Regarding payment, the company must be further aware of the new rules of the EU directive PSD2 which will enter into force on March 14, 2021. After this date, the web shops will be required to arrange their payment solution so that payment is made through a two-factor authentication. Read more about these rules in our recent newsletter.

Important rules after sale

The company must be aware that the delivery of a product occurs when the product has come into the customer's possession. This means that the product is delivered only when the customer has received the product at the recipient's address or has picked up the product at the post office, in a parcel box or parcel station.

Until the product is delivered, the company carries the risk of the goods. This means that it is the company's risk if the item is damaged or disappears during shipment to the customer.

The customer's right of withdrawal

E-commerce is characterized by the purchase agreement being entered without a physical meeting between the customer and the company, and without the customer being able to see the product prior to the purchase. Therefore, a statutory right of withdrawal of 14 days from the receipt of the item applies.

Before the sale, the company must have informed the customer of the right of withdrawal and its effect. Failure to comply with this obligation may, in some cases, exempt the customer from his obligations. Further, the company may be fined.

The company is entitled to receive a written notification that the customer wants to cancel his purchase. Thus, a customer cannot simply refuse to pick up the purchased product at the post office, and then claim to have exercised his right of withdrawal. However, for practical reasons, it may be easier for the company to consider a product that is not picked up from the post office as returned by the customer.

When calculating the length of the cancellation right, it is important to note that the customer must notify the company within 14 days of receipt that the customer wants to cancel the purchase. The customer then has another 14 days to return the product. However, the customer must be able to document that the goods have been shipped within the deadline.

If the customer makes use of his right of withdrawal, the customer carries the risk of the goods being shipped - different from when the goods are sent to the customer.

Please feel free to contact us if you need advice or guidance to any of the above.