04 February, 2019
Consumer habits are changing. That should be obvious to even the most casual observer. High Street footfall and takings continue to decline, whilst the internet boom shows no sign of giving up any ground.
More recently, the advent of smart technology has opened up entirely new avenues for consumers to buy retail goods. The idea of being able to order from anywhere, at a very competitive price, with free next-day delivery, and pay for it all with the reading of a thumb-print, has evolved from a sci-fi delusion to almost mundane reality in a matter of years.
And the evolution is not stopping. As convenient technology continues to invade the average home, buzz is being generated about being able to order exclusively using voice-activated technology like Amazon Echo or Google Home. Even more futuristically, many large tech companies have begun trialling Smart Fridges that can sense when items are running low and re-order them automatically.
As always with the excitement of new technology, you can always rely on a solicitor to ask how the new-age wonder fits in with the law as it currently is, and this is no exception. Questions are beginning to be asked as to how this amazing new technology actually works on a legal level, and if it can be harmonised with consumer rights.
The New Case
A new case from Germany has sparked a fascinating debate on how a modern, technology-heavy contract can be formed. The case concerns 'Amazon Dash'; the latest Amazon craze on the horizon, which aims to make the buying of everyday products even easier by allowing for an item to be ordered simply by clicking a physical button in your home that is connected to the internet. Illustrative examples show a 'Tide' button that can be attached to your washing machine, a 'Colgate' button in your bathroom, or the exceedingly popular 'Heineken' button in your fridge.
German Courts, however, have potentially rained on this particular parade by declaring that such a system of ordering is contrary to EU Consumer Rights Law. Specifically, Directive 2011/83 requires that any online order must include a button which 'shall be labelled in an easily legible manner only with the words 'order with obligation to pay' or a corresponding unambiguous formulation'. In practice, we will all recognise that website's buttons like 'But It Now' or 'Commit to Pay', more than satisfy this requirement. However, as Amazon's Dash buttons contain only the logo of the relevant company and no wording at all, the German Courts have ruled that this does not provide enough clarity for the buyer and therefore cannot lead to a binding contract.
Whilst the case was decided in Germany, the law concerned was an EU directive that, for the time being at least, also has a standing in English law. There is therefore every reason to suspect that Amazon's new toys will hit similar obstacles once they are fully rolled out in the UK.
Interestingly, the law is not identical across the EU, with some countries only requiring that unambiguous wording appear when making larger purchase (in the Netherlands, for example, the Dash buttons will be legal provided that the value of the transaction does not exceed €50). Whether such a caveat will be added to English Law remains to be seen.
The take away lesson is that, as exciting as new technologies may be, no level of excitement or innovation will be able to circumvent consumer law. Any retail or technology company would do well to remember this and consult legal guidance as early as possible before setting off on a new venture, rather than having to back pedal once the product is finished.
Forbes regularly advises on all matters relating to consumer and contract law. Contact us at John Pickervance, or 0332071130 to discuss any issues further.