Online businesses have more stringent consumer information requirements than usual. In addition to what information the terms of use must include, there are legal requirements to determine whether the terms of use become part of the contract or, in other words, when they will apply to the consumer.
Standard terms of use become a part of a contract for the provision of goods or services via a computer network, if:
1) the seller or service provider refers to the terms of use before or during the conclusion of the contract and the consumer had an opportunity to look at them;
2) due to the manner of concluding the contract, the existence of terms of use can be reasonably expected and the consumer has the opportunity to look at them.
Furthermore, the decisive condition is not the actual reading of the terms of use, but the possibility to read them, ie the possibility to get acquainted with the respective conditions.
In other words, in the event of a dispute, the consumer cannot rely on the fact that he has not read the terms of use. It is important to determine whether he had a reasonable opportunity to read the terms of use before concluding the contract, be it making a purchase, registering a user, or otherwise.
Practical guidelines for designing a consumer-oriented online store or service
- Add a link to the standard terms and conditions just before the button for creating an account or confirming a purchase
The terms of use must be available to the consumer, ie. the link to the terms of use should be available before using the service or making a purchase.
- To accept the terms of use, use a checkbox or other confirmation button that clearly indicates that the consumer’s choice will lead to the application of the terms
For example, on the Euronics website, the user clicks on “I agree to the general terms and conditions” before making a purchase.
In contrast, for example, when creating a Facebook user account, the user consents by clicking the “Sign Up” button.
Both examples are in line with consumer protection law. Adding or removing a terms of use consent checkbox is a matter of design.
- Keep a system log from which it is possible to derive the time of acceptance of the terms of use of a specific consumer
The logs should show when a particular user agreed to the terms of use.
- Maintain a version history of the terms of use
The published terms of use must state the date on which they were last amended. Therefore, if you change the terms of use, one should keep the old version with the relevant date.
- Please note that special rules apply to the notification of data processing, such as the need to ask for consent only for certain operations. In most cases, the notice is for information purposes and not a contract between the service provider and the consumer
For example, the Spotify registration form distinguishes between asking for consent, notifying, and concluding a contract. The consumer must agree to the processing of his data for marketing purposes but will be able to use the service even if he does not give consent. This means that consent is voluntary.
“I’m not a robot” is not part of the terms of use or the data processing notice.
The consumer must agree to the terms of use, as it is a contract. This does not have to be a separate checkbox, as consent can also be given by clicking the register button. A link to the data processing notice has also been added.
