Some time ago we reached PayPal’s EU Legal Department in Luxembourg, suggesting them a better way to notify their customers about changes on their Legal Agreements.

Background

Every now and then PayPal will send an email notifaction to their customers when a service policy update takes place. These notifications do not include the Policy Update information, but the instructions and hyperlinks to access the information on PayPal’s website.

On July 5th, 2012, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Oberlandesgericht Wien (Austria) concerning the interpretation of Article 5 (1) of Directive 97/7/EC of 20 May 1997 on the protection of consumers in respect of distance contracts (ECJ, case C-49/11, Content Services Ltd v. Bundesarbeitskammer). The ECJ found that providing the consumer with information only via a website or via hyperlinks is not sufficient under the Distance Selling Directive.

The Austrian court referred the case to the ECJ to determine whether making the information required under the Distance Selling Directive accessible to the consumer only via a hyperlink on a website meets the requirements of Article 5 (1). The ECJ held that the information requirements of Article 5 (1) were not met for two reasons.

First, the usual, everyday meaning of the verbs “receive” and “give” contained in Article 5 (1), refers to a process of transmission whereby it is not necessary for the consumer to take any particular action in order to obtain the required information. In contrast, when a hyperlink is displayed, a consumer must act by clicking on the link. The information, therefore, is neither “given” by the seller nor “received” by the consumer as required by Article 5 (1).

To support its reasoning, the ECJ also referred to the preamble of the Distance Selling Directive. Recital 11 states that “the use of means of distance communication must not lead to a reduction in the information provided to the consumer.” According to the ECJ, the display of required information only after the consumer clicks on a hyperlink goes against this objective of the Distance Selling Directive.

Second, the ECJ held that a seller’s website is not a “durable medium” for providing the consumer with relevant information within the meaning of Article 5 (1). Providing information via a website does not ensure that the consumer is in possession of the information in the way he would be if paper were used. According to the ECJ, a medium is durable if it “allows the consumer to store the information which has been addressed to him personally, ensures that its content is not altered and that the information is accessible for an adequate period, and gives consumers the possibility to reproduce it unchanged.” This interpretation is confirmed by the definition of “durable medium” in other EU Directives and a previous case before the Court of the European Free Trade Association (case E-4/09, Inconsult Anstalt v. Finanzmarktaufsicht).

In the case at hand, Content Services Ltd was able to amend the website content unilaterally, and there was no indication that a consumer could store the information and reproduce it unchanged. Still, the ECJ did not rule out the possibility that some “sophisticated websites” could meet the “durable medium” standard as required by Article 5 (1) of the Distance Selling Directive.

The ECJ thus clarified that providing relevant information behind hyperlinks, or simply providing the relevant information on a website, will not suffice within the meaning of Article 5 (1) of the Distance Selling Directive.

Our approach

Back to the emails sent by PayPal to notify about a Policy update, it is clear that they are not just not providing the information (the Policy) in a “durable medium”, but, furthermore, they also require the Customer to take action so as to “receive” this information: this is clicking the hyperlink on the message.

In order to comply with the Directive 97/7/EC, the information should be “delivered” and “received” by the Customer in a “durable medium” along the notification, not via a hyperlink. A practical way of doing so would be to include a PDF version of the Policy as an attachment to the email message notification. However, you would still be advised to be in a position to prove that such “delivery” really took place.

Our message to PayPal was clear: this is what we are good at.

Complying with the EU Regulation 910/2014 on electronic identification and trust services for electronic transactions, our registered email service acts as a trusted provider for electronically register the contents and delivery of email messages. In the form of an electronically signed evidence receipt, such registration does not only prove what the email contains, whom it’s been delivered to and when, but also proves that the contents (the Policy) has not been modified since.

And, most importantly, without calling the recipient for action.

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If you are interested in starting to to communicate with greater guarantees and you are a professional, particular and/or small company, do not hesitate to consult the different rates available and register. If on the other hand, you are a company with high volumes of shipments and needs tailored to your project, please contact us.