E-commerce: service providers have to offer more than just contact by e-mail
The questions before the European Court of Justice
This issue was referred to the ECJ by a German court, who had to
decide whether an insurance company offering its services
exclusively on the internet also has to mention its telephone
number in addition to the postal and electronic mail already
mentioned on the webpage. In this case, the telephone number was
communicated only after the conclusion of a contract. However,
interested persons were able to ask questions via an on-line
enquiry template, the answers to which were sent by electronic
mail.
The ECJ held that, before the conclusion of the contract, an
e-commerce service provider is required to supply the recipients of
the services, in addition to an e-mail address, with other
information enabling the recipients to contact the service provider
in a direct and effective manner. While this information does not
necessarily have to be a telephone number, as an electronic
template or other means may also suffice, there are situations
where a telephone number cannot be dispensed
with.
E-mail contact as sole means of communication with
the service provider is not sufficient…
The ECJ argued that, despite encouraging the development of
e-commerce, it does not follow from the E-commerce Directive that
electronic commerce is considered isolated from the rest of the
internal market. Accordingly, the mention of 'e-mail
address' in the Directive does not mean that the Directive
intended to dispense with other types of non-electronic
communication which may be used in addition to it.
…also
other means required to ensure communication in a direct and
effective manner
Instead, the service provider is required under the E-commerce
Directive to offer recipients of the service a rapid, direct
and effective means of communication in addition to his
electronic mail address. The question that arises then is whether
information giving the recipients of the service access to another
means of communication must necessarily include a telephone
number.
No absolute requirement to offer contact via
telephone
The ECJ rejected the argument that a service provider must
indicate to the recipients of the service his telephone number, as
only the telephone would be capable of satisfying the requirements
of direct and effective communication. First, the ECJ noted that
'directly' does not necessarily require communication in
the form of an exchange of words or an actual dialogue, but only
the absence of an intermediary. Second, effective communication
does not mean that the response given to a question posed must be
instantaneous. On the contrary, a communication is to be regarded
as effective if it permits adequate information to be
obtained within a period compatible with the needs or legitimate
expectations of the recipient.
Therefore the ECJ held that the service provider does not
necessarily have to provide a telephone number, as there are other
forms of communication that are able to satisfy the criteria of
direct and effective communication, such as those established by
personal contact at the premises of the service provider with a
person in charge or by fax.
Electronic enquiry templates are
sufficient, subject to one exception
The ECJ concluded by ruling that an electronic enquiry template
(as used in the German case) may be regarded as offering a direct
and effective means of communication, where the service provider
answers questions sent by consumers within a period of 30 to 60
minutes.
This is, however, not the case in exceptional circumstances
where a recipient of the service, after making contact by
electronic means with the service provider, is, for various
reasons, such as a journey, holiday or a business trip, deprived of
access to the electronic network. In this case, the service
provider has to offer, on request, access to another,
non-electronic means of communication to ensure effective
communication.
Conclusions
This ruling by the ECJ is important as it makes clear that,
across all Member States of the EU, e-commerce businesses have to
provide more than just an e-mail address as a means of contact
prior to conclusion of the contract.
As a result of this ruling, e-businesses will have to offer an
additional means of communication other than e-mail. This does,
however, not mean that they have to introduce a general telephone
number for all interested parties, as other (electronic and
non-electronic) means of direct and effective communications are
also sufficient. Only if recipients request a non-electronic means
of communication due to lack of access to an electronic network,
are service providers required to change their procedures by
offering non-electronic means of communications (such as by
telephone) to maintain effective communication.