Post on 31-Jul-2015
transcript
Legal challenges of m- & s-commerce
BDMA Legal Day, 15 January 2015
Legal challenges of m- & s-commerce
Social sellingSocial commerceSocial auctionsVisuel sellingReview sellingCrowdselling
s-commerce = social media = mobile devices (+/-75%)
= m-commerce
Sirius Legal
Legal challenges of m- & s-commerce
Consumers are ready for social commerce
42% of consumers would buy social if they knew payment data was safe55% will click on content shared by peers52% will share ads with peers63% browses social media to look for deals
(2014 DigitasLBi syrvey in US)
Sirius Legal
Legal challenges of m- & s-commerce
Estimated turn over for social commerce in US alone in 2015:
15 billion USD (estimate by Invesp and DigitasLBi)
2015 is said to be the year of final breakthrough ofsocial and mobile.
Turnover could go up to 56 billion over time (in US)
Sirius Legal
Legal challenges of m- & s-commerce
Social sellingSocial commerceSocial auctionsVisuel sellingReview sellingCrowdselling
Driving traffic or Generating conversation or Advertisement & marketing
Sirius Legal
Legal challenges of m- & s-commerce
By 2011 Dell outlets had already sold in excess of $7 million in products through its Twitter feed.
Sirius Legal
Legal challenges of m- & s-commerce
Social commerce from the lawyer’s point of view:
Actual product offering+
Actual transaction
Both through social media
Sirius Legal
Legal challenges of m- & s-commerce
2014 offered a breakthrough
Several social media platforms are working on “in platform” s-commerce/m-commerce solutions
09/14: Twitter launches beta buy buttonCurrently tested by small % of U.S. users
Tap "buy" button, receive product info and enter shipping and payment information.
Sirius Legal
Legal challenges of m- & s-commerceSirius Legal
Legal challenges of m- & s-commerce
2014 offered a breakthrough
Twitter users will only see the shoppable tweets if they are following that brand or artist
Both iPhone and Android are supportedFeature also saves users' payment and personal information for future purchases
Sirius Legal
Legal challenges of m- & s-commerce
2014 offered a breakthrough
05/14 Amazon “add it now, buy it later”
Link Twitter account to Amazon accountAdd to shopping basket by tweet with hashtag #AmazonCart. Customers never leave Twitter feed"Add it now, buy it later"
Sirius Legal
Legal challenges of m- & s-commerce
2014 offered a breakthrough
05/14 Amazon “add it now, buy it later”
Link Twitter account to Amazon accountAdd to shopping basket by tweet with hashtag #AmazonCart. Customers never leave Twitter feed"Add it now, buy it later"
Sirius Legal
Legal challenges of m- & s-commerce
2014 offered a breakthrough
Facebook is working on their buy button
Pinterest, Instagram, …
Responsive sites have become standard business practice
…
Sirius Legal
Legal challenges of m- & s-commerce
2014 offered a breakthrough
Facebook is working on their buy button
Pinterest, Instagram, …
Responsive sites have become standard business practice
Sirius Legal
Legal challenges of m- & s-commerce
The legal fine print…
E-commerce = s-commerce = m-commerce = distance sales
Consumer protection
As soon as actual offering + transaction
(if not: mere advertisement)
Sirius Legal
Legal challenges of m- & s-commerceSirius Legal
Consumer protection is key
1992 Wet Handelspraktijken en consumentenbescherming2005 EU Richtlijn 2005/29/EG2010 Wet Marktpraktijken en consumentenbescherming2011 European directive 2011/83/EU consumer rights in
distance sales31 December 2013:
Boek VI WER: Marktpraktijken en Consumentenbescherming in Staatsblad.
30 May 2014 kick of date
Legal challenges of m- & s-commerce
The legal fine print…
New rules for distance sale and e-commerce“Level playing field” in entire EUChanges for Belgium not all that bigSales period limitation smuggled in through back door
Sirius Legal
Legal challenges of m- & s-commerce
Basis of distance sales regulations:
Information to consumer
• Company ID• Price and discounts• Delivery and payment costs• Steps in order proces• 14 day cooling off period • Handling of return shipments• Long term subscription services > 1 year
Sirius Legal
Legal challenges of m- & s-commerce
New since 2014:
Information to consumer
• Principle characteristics of product• Total price, incl all costs• 14 day cooling off period• Delivery conditions• 2 year warranty on consumer goods• Professional and sector codes• Complaints procedure and mediation
Sirius Legal
Legal challenges of m- & s-commerce
When should information be given?
in most cases: “Before order confirmation”
> Information can be given in General Terms and Conditions
Sanctions: e.g. reimbursement of costs if consumer was not warned about costs
Burden of proof lies with seller
Sirius Legal
Legal challenges of m- & s-commerce
When should information be given?
But in some cases: “At the start of order proces” (art. VI.46 WER):
• Accepted payment methods • Offered means of delivery• Limitations in delivery (e.g. “only within Benelux”)• Limitations to offer (limited in time, minimal quantity, …)
Sirius Legal
Legal challenges of m- & s-commerce
How does this fit into social and mobile commerce?
Same rules applyNothing specific on social commerce in EU Regulation / WER1 article relevant to mobile (VI.46, §4):
Limited information taking into account limitated available spaceShould always contain: ID seller - Basic product info 14 day c/o period - total price
Sirius Legal
Legal challenges of m- & s-commerce
• What is “start of order proces” in social commerce?• How to fit basic info into 1 tweet?• How to pass legal info through a video app?• How to mention 14 day c/o on video or picture?• …?
Sirius Legal
Legal challenges of m- & s-commerce
When should information be given?
Repeated information: “upon order confirmation” (art. VI.46 WER):
• Or at the latest upon delivery• On a durable medium
(pdf, word, html, not a link to website)
Sirius Legal
Legal challenges of m- & s-commerce
Another new information obligation:
“Order with payment obligation”
Sirius Legal
Legal challenges of m- & s-commerce
Final issue
Consumer should explicitely accept GTC
• Retweet?• Facebook Messenger message?
• Burden of proof of acceptance lies with seller
Sirius Legal
Legal challenges of m- & s-commerce
And then yet another one
Privacy…
Sirius Legal
Legal challenges of m- & s-commerce
Other relevant rules in e-commerce in general
14 day cooling off period
• 14 days throughout Europe now• Full refund within 30 days• “Unused”, “Unopened”, “original packaging”• Without need to motivate• Repeat rights in order confirmation• Limited exceptions• Mandatory law
Sirius Legal
Legal challenges of m- & s-commerce
Other relevant rules in e-commerce in general
14 day cooling off period
• Obligation for consumer to return within 14 days• Model form replaces former warning• Model form used = information duty respected• + Standard return form
Sirius Legal
Legal challenges of m- & s-commerce
Other relevant rules in e-commerce in general
14 day cooling off period - exceptions
1 Services if service started within 14 days and consumer has priorly accepted
2 Financial products (shares, …)
3 Custom made goods
4 Perishables
5 Hygiene, public health, if seal has been broken
6 Incorporated into other goods
7 Alcohol if delivered after +30 days and price fluctuates outside of seller’s coltrole
Sirius Legal
Legal challenges of m- & s-commerce
Other relevant rules in e-commerce in general
14 day cooling off period - exceptions
8 Urgent repares
9 Audio video software if seal has been broken
10 Newspapers and magazines
11 Public auctions
12 Hotels, transport, catering, leasure “if a specific date is mentioned”
13 Digitale content if use has started before 14 day and consumer has accepted
14 Lottery and casino games
Sirius Legal
Legal challenges of m- & s-commerce
Other relevant rules in e-commerce in general
14 day cooling off period
No 14 days offered: consumer retains good and gets reimbursed
14 day right not mentioned: extended period up until 12 months + 14 days, unless “repaired”
Sirius Legal
Legal challenges of m- & s-commerce
Other relevant rules in e-commerce in general
Delivery
• Delivery within 30 calender days• Unless otherwise agreed upon• Not in time? Right to dissolve + reimburse• Reimbursement within 30 days• Risk lies with seller (art. VI.61 WER)• Burden of proof with seller (art. VI.62)
Sirius Legal
Legal challenges of m- & s-commerce
Other relevant rules in e-commerce in general
Cost of payment
• Cannot exceed “actual cost” for seller• Problem: what is “actual cost”?
Sirius Legal
Legal challenges of m- & s-commerce
Other relevant rules in e-commerce in general
The rabbit in the hat… Sales period limitations in Belgium
5 years of discussion: Belgian WMPC not compliant to EU lawSales period limitation and sale with loss limitation = illegalReason: Consumer protection does not allow for general limitations, Only individual sanction if “misleading” or “aggressive”Cfr. Sanoma – VTB-VAB – Zeb and others
2014 law: retro-active ratio legis attributed to sales period limitation:competition
Should not survive new EU testMeanwhile: Belgian e-tailers suffer competition handicap twice a year
Sirius Legal
www.siriuslegal.beinfo@siriuslegal.be@BartVdBrandeLinkedin.com/in/barvdbFacebook.com/siriuslegal