E-commerce and webshops: a concise legal guide for the professional online seller
Last year, Belgian webshops realized a combined turnover of 8.2 billion euros (+17% in comparison to 2018), 25% of which came from foreign shoppers. Also in 2020, the number of online transactions and webshops will increase significantly, including more and more ‘mobile responsive’ sales (i.e. via a mobile device instead of a desktop).
While specific legal obligations are often disregarded, fines or consequences in case of infringements (e.g. nullities) are significant.
Target group
Special B2B legislation and/or the much stricter B2C legislation (to protect the consumer) will be applicable depending on whether the webshop is aimed at entrepreneurs or at consumers, or even at both target groups.
Information obligation prior to ordering
When selling products via a webshop to the consumer, the ‘total’ price of the goods or services must be clearly indicated as from the beginning, including all taxes, additional delivery fees, insurance costs and/or other costs.
The payment options (and costs) must also be clearly stated, for example by means of icons and logos on the opening page, as well as the (minimum) duration of the agreement and the renewal and cancellation conditions.
The moment a customer places an order, they must be expressly informed about the payment obligation of their order. The consumer must also be reminded of the warranty and the complaint handling policy.
Right to withdrawal
Consumers must also be clearly informed about their right to withdrawal (at least 14 days). More specifically, they must be informed about the conditions and deadline for withdrawal, the modalities for exercising that right and the model form regarding the right of withdrawal. If not, the withdrawal period shall be automatically extended by twelve months.
And you are?
Every online seller via a webshop is obliged to provide a minimum amount of information about themselves. For example, the trade name, legal form, address, possible e-mail address, bank and company number have to be permanently available for the customer in an easily accessible and direct manner.
The same applies to the main characteristics of the products and/or services (including information about the legal warranty).
It is common to create a separate page on the webshop site where all relevant company information is gathered. Notable is that the so called ‘footer’ on every page of the webshop has to contain a link that gives access to the information page.
Privacy is sacred
The customers data, left on the webshop, must always be treated fully in accordance with the General Data Protection Regulation (GDPR). The customer has to give their consent to process their data. In order to use the customer consent for advertising purposes, the so-called ‘opt-in system’ has to be respected. This means that the customer has to personally indicate that they want to receive commercial e-mails, newsletters, etc.
The privacy statement must also be clearly and visibly displayed on the website, including information about the purposes of data collection, with whom the data will be shared, the period during which the data will be collected, the users’ rights and how to exercise them (e.g. right of access, right of rectification, right to be forgotten, right to withdraw consent, right to complain, etc.).
In case of infringements, fines can range up to 20 million euro or 4 % of the turnover.
On the other hand, big data (i.e. all ‘personal’ information obtained by analyzing the purchasing behavior of the customers) are very valuable from a commercial perspective. Via blockchain and taking the above into account, the transparent, secure storage and transmission of this information can be sufficiently guaranteed, albeit some precautions have to be taken.
Cookies
Most webshops use cookies to monitor the visitor’s (surfing) behavior to be able to apply targeted advertising. For this too, the owner of the webshop needs the explicit consent of the visitor.
The so called ‘cookie policy’, which explains what cookies are, which cookies are used and what for, must be clear and available on every page of the webshop. It may be useful to install a pop-up box where the customer has the opportunity to store and read the cookie policy at the beginning of their visit to the site and to give their consent. For a first case of sanctioning incorrect cookie use, we refer to our newsletter of 11 February 2020 (Cookie fine imposed by Belgian DPA).
Terms and conditions
Tailor-made general terms and conditions make the difference. For example, it is recommended to implement clauses regarding the indicative delivery period, the liability limitations, warranties and warranty periods, possible force majeure situations, price changes etc. Of course, the applicable B2B and/or B2C legislation has to be respected (it is useful to draw up separate general terms and conditions for each target group).
The general terms and conditions have to be made available in all languages in which the customer can order from the webshop. The customer has to be able to read (and agree upon) the general terms and conditions before the order is paid and has to be able to store them at all times.
Please note that the general terms and conditions have to be explicitly agreed upon by online customers.
It is strongly recommended to make available in full the general terms and conditions on the order form, the order confirmation and the invoice, and to indicate that the terms and conditions form an integral part of the agreement.
Insurance
A webshop owner is not obliged to take out additional insurance. Nevertheless, it can be useful to check the available policies against the additional needs of the webshop and the changed business model. Taking out a separate data protection insurance is but one example.
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Starting and running your own webshop offers many advantages. However, the rules are strict and not always straight forward.
Do not hesitate to contact us for further questions and/or assistance.