Legal aspects (summary of the paper by Frank A. Dassler)

This is a short summary of the guidelines given to the attendees of the Sporting Goods Retailer World Summit, concerning e-commerce activities in Europe and especially in Germany.

If you are doing B2B, incoming messages on your e-mail address have a binding, legal character as soon as they have reached your mailbox during the typical business hours. If incoming messages are processed through your www-site, they create binding, legal declaratory acts immediately, independent of regular business hours.

In B2C, the declaratory act is valid one day after its receipt at the consumer’s e-mail address.

The presentation of goods and services in a www-activity constitutes a binding sales offer as soon as it leaves the stage of an ordinary advertisement.

2. What kind of legal provisions have to be applied in e-tailing?

The EU legislative bodies derive their authority to issue regulations and directives from Art. 189 of the EC Treaty. The most significant directive for internet business is the distance selling directive which has been implemented by the member states by June 2000. It concerns B2C distance contracts only which are defined as an agreement, where the supplier and the consumer do not need face-to-face up to and including the moment at which the contract is concluded. The scope of the directive is to harmonise the laws concerning distance contracts between consumers and suppliers. It is supposed to protect the consumer from concluding a distance contract without sufficient information to ensure his informed consent to the terms of such contract.

According to this directive and the respective national laws the supplier must provide a consumer with specific information prior to conclusion of the contract

• identity of supplier and address
• duration of offer
• price including all taxes
• right to withdraw
• payment arrangements.

According to Art. 6 the consumer has an automatic 7-working day-period to withdraw without giving reasons (cooling-off-period). According to art. 7 the supplier must execute the order within a maximum of 30 days of the date of the order. Some member States like Germany apply a 14-day-period for the withdrawal.

The proposal for an E-Com-Directive is considered a landmark Internal Market legal instrument. It relates to B2B and B2C activities and has to implemented on May 2001. In its Art. 7 the E-Com-Directive states that Member States must take measures to ensure that service providers undertaking unsolicited commercial communications by e-mail consult regularly and respect and observe the opt-out-registers in which individuals not wishing to receive such communication can register themselves. The violation of such duties may lead to financial penalties for those services providers, who failed to consult the opt-out-list.

In total, the new directive will regulate the e-com-business in more depth than the existing distance selling directive which only can be applied to B2C activities. However, Germany uses the more rigid opt-in-principle for e-commerce, which means, that the consumer has to agree to the advertising activities of the supplier in advance.

General terms which constitute a frame agreement between the supplier and the consumer are an eligible tool, as long as the consumer has been expressively informed about the content of those terms. The request to download the general terms is not sufficient. It is recommended to combine the text for the order with the terms in order to make them an essential part of the agreement.

Data protection plays an essential role in Europe and especially in Germany. The respective directives and acts do not allow to gather data other than for specific administrative reasons such as the address of the user and the concrete payments etc. In Germany those provisions are regulated in the "Teledienstdatenschutzgesetz" (TDDSG).

The best proof for the supplier of an online order by the consumer will be the digital signature according to the digital signature act. The provisions of this act will include, that a digital signature must be as legally valid as handwritten signatures and that the certification authorities are liable. Before the technical implementation of electronic and digital signatures the supplier is forced to gather as much information as legally possible in order to find out, who is ordering his goods and/or services. It is generally recommended to send an e-mail confirmation of the order to the address of the consumer in order to make sure, that his e-mail address exists.

Also the use of electronic payment instruments can give the supplier some comfort, that the sale is valid. Besides new instruments like e-Cash, CyberCoin, MilliCent, chips and smart cards we consider the payment via credit cards as the best tool so far. Some experts foresee the use of credit card terminals as they are known from the regular stores which could be installed at every consumers home with a "black box".

The initiatives taken by the European Union and international organizations like OICD to draft a comprehensive e-com legal frame work is a step in the right direction. This frame work will establish a comfort for all suppliers who’s economic survival depends on adopting a successful legal strategy in e-commerce in order to maintain competitive advantage. Once the legal parameters for e-commerce have been clearly defined, such legal strategy can be effective also for the sporting goods industry and - trade.