CONSUMER GETS 8 MONTHS' FREE USE OF A LAPTOP DUE TO LEGAL ERROR BY ONLINE RETAILER

In a recent opinion placed before the European courts, the Advocate General has held that online retailers cannot reclaim a share of the purchase price from shoppers who return goods to them, having had some benefit from the product.

Online consumers are permitted to return their purchases to the retailer within the first week of receiving the goods and expect a full refund. In cases where the retailer does not send the appropriate papers to the customer informing them of this right, then the right to return the goods and withdraw from the contract is extended until the correct papers are intimated to the consumer.

The Advocate General's ruling in this matter is not final: her opinion is issued in advance of the court hearing and does not bind the court in any way, although it is highly persuasive.

The right of return is contained within Article 6 of the Distance Selling Directive and in the UK is reflected in the Distance Selling Regulations. This aims to give online consumers, who have no opportunity to see their purchase before buying, equivalent (or stronger) protection to those who buy from shops face-to-face.

The case was brought by a German consumer who purchased a laptop computer from an online retailer. Although she had owned and used the computer for eight months before returning it, the Advocate General held that retailer was unable to levy a 'charge' for use during this period above the direct cost of returning the goods. The retailer had failed in this eight month period to inform the consumer of her right to withdraw from the contract.

The Advocate General went on to say that, even if the European court did not agree with her on this point, it should not be in the discretion of EU countries to write national laws allowing for such levies. In other words the UK could not.

So the message to retailers is clear: it is essential that the Distance Selling Regulations are followed, and that the appropriate 'right of return' notice must be served on customers when their purchases are shipped to them.

If you or your business requires further advice and assistance on Privacy or Data Protection issues please contact Richard Fox on 01603 281127. Richard is a general commercial solicitor, practising data protection and e-commerce law.