Posted on behalf of Simon Worthy
In Issue 356 of the ComputerAct!ve magazine a reader wrote in stating ‘I ordered a replacement power supply for my Dell PC from an online retailer.......Because it was an American site I used my Paypal account for added protection. After six weeks the order had still not arrived, so I contacted the company. It told me to wait another week, and, if the order hadn’t arrived by then to submit a claim to Paypal. I did this when the goods hadn’t arrived after seven weeks and discovered I was outside the 45 days allowed to make a claim.’
The magazine decided to ‘check out this retailer and visited the website. We found that it was ‘expanding’ with a UK site. The UK site seems to be fully operational as we were to place an order and we went through the checkout process until we got to the Paypal link.’
‘...It seriously concerned us because we could find absolutely no contact details on either the US website or the UK website. No address, no phone number, no email, not even a web-contact form. The site makes clear its intention is to sell to ‘friends in the UK’ so this retailer must abide by UK law.
Having no contact details is a breach of the Electronic Commerce Directive and the company’s terms and conditions breach UK consumer law. The only way you could pay on the UK site was via Paypal.’
As discussed in another article on this blog regarding credit cards for overseas transactions, notwithstanding the discussions in another article on the blog regarding the foreign transaction and four-party credit card arrangements offer the card holder protection, it seems that the protection offered Paypal is not absolute. The claimant must claim within 45 days otherwise the protection offered expires.
In terms of PayPal, some of the horror stories on PayPalSucks.com might be of interest. (Interesting that UDRP actions tend to take "sucks" sites away from the registrant.)
ReplyDeleteMy current favourite mobile payment solution is Square, although this is not without problems - currently US-only, and, from memory, security questions about the mechanism in which the data in the magnetic strip on the card is converted to sounds.)
ReplyDeleteThe site makes clear its intention is to sell to ‘friends in the UK’ so this retailer must abide by UK
This is one of many fascinating issues with cross-border online trade.
As a retailer in the US, just because I am willing to ship to the UK, why should I be bound by the laws of that country?
If someone in the UK wants to buy from me, as a US retailer, they should be bound by my laws - otherwise, I need to be on top of the laws in every country from which my website could be accessed, or to which I'd be willing to ship goods - or just where I make an effort to "target" my website?
(In any case, what should the customer do? Sue me in their local courts, then seek to enforce the judgment over here? Perhaps legally possible, but quite some hoops to jump through.)
The US retailer has set up a set up a UK domain, so they have a ......co.uk. If this is the case then the retailer would be bound by the laws of the UK, would it not?
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ReplyDeleteIf this is the case then the retailer would be bound by the laws of the UK, would it not?
Not necessarily, to my mind - although it would increase the likelihood of a UK court finding that it does have jurisdiction.
(For example, if a US citizen were to register example.co.uk, and use it for running a business in the US, sales within the US would not be governed by English law simply because of the domain name.)
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ReplyDeleteJust to chime in some of my thoughts (having not previously studied law - please feel free to straighten things out!):
ReplyDeleteSurely a business or individual would be aware of the fact that potential legal issues could emerge when doing business overseas and consequently the onus would be on them to comply with the respective laws in these countries before entering that particular market?
In relation to contact details - regardless of the type of domain (be it .co.uk or .com), it will always be registered somewhere and contain contact details that can be looked up through WHOIS. This would surely be the main determinant as opposed to the domain ending?
Though again, the business may well in this circumstance have registered a .co.uk address with details from the US.
If the company has no connection to the UK aside from the fact that it states it will ship to the UK, then there is no way one could take legal action inside UK courts, no?
ReplyDeleteSurely a business or individual would be aware of the fact that potential legal issues could emerge when doing business overseas and consequently the onus would be on them to comply with the respective laws in these countries before entering that particular market?
Where the trigger is "doing business," then that's reasonably clear - if I want to sell to the UK, then I should be bound by UK consumer laws. (I'm not sure I agree with this approach, but let's use it for now!) However, what if I simply write a webpage - no sales or business intent - and publish it online, so that it is accessible in all countries. The website contains a piece, which concludes that the Holocaust was a fiction - Holocaust denial being an offence in some countries.
Is the fact that the website is accessible in those countries sufficient to trigger liability, even though I have no connection to that country?
What if I translated my piece into German? Or put it on the site with a .de ccTLD? Or emailed it to a friend in Germany? Would any / all of these be sufficient to bring me within the remit of German law?
Alternatively, if they would not, if I wanted to write something where publication was prohibited under my local law, would I have a get-out clause by placing it on a server outside the jurisdiction, then claiming that my local law has no effect?
If the company has no connection to the UK aside from the fact that it states it will ship to the UK, then there is no way one could take legal action inside UK courts, no?
It would depend on whether the site could be considered to be "targeting" the UK, simply by not preventing UK users from accessing the site's content, and/or for making the material available in English - for a brief discussion of this kind of issue, see this piece, about the Russian website AllOfMP3.com.
I agree with Neil's comments and the case of AllofMP3.com is indeed a relevant one.
ReplyDeleteI am not sure that the fact that the content is published in english is enough to argue that the site aims at the UK market (perhaps it would be different with less "global" languages?). I am not even sure that the fact that you can pick the UK from a list of countries implicitly means that they accept that you're in that country and that they will be bound to those laws.
In my view the situation it is different the case of the ccTLD; the fact of using a .co.uk TLD may well be a clue of the fact that the website is aiming at that market (this may be seen at least as the advertising of art 5(2)of the Rome convention?).
Moving a bit aside from the original question (and in the case of contracts), in the case of countries that are not signatories of the Rome convention , how should this be regulated? art 4. is applicable to the country that has signed the convention (when the other country has not). however, how should the second country act?
ReplyDeleteIn my view the situation it is different the case of the ccTLD
However, my technicalsupport.it site, and my bagpuss.tv site both make use of ccTLDs, but they are using them to emphasis the nature of the site, rather than because they are country-specific. I'd be cautious about using the existence of a ccTLD as an indication of targeting. Perhaps a rebuttable presumption in favour of using the ccTLD as an indication of targeting, provided that there really is scope to argue against it!