Online consumer protection is getting stronger

New obligations must be respected by e-merchants in the European Union since May 28, 2022. What adaptations must be made to your e-shop to stay in order?

Misleading business practices have always existed, but digital has made it easy for some of them to multiply. Let us mention in particular:

  • the very frequent change of prices, sometimes even automatically based on algorithms, which is perfectly legal, unless the consumer is led to believe in a good deal by publishing a crossed out reference price that has never been practiced on the website’s web, or that it was only in effect for a short period of time in relation to the duration of the “promo”;
  • consumer reviews, published in bulk, that in fact were never written by real buyers of these products, but generated by robots, communication agencies or the seller himself;
  • offers highlighted in search results, regardless of query.

In 2019, the European legislator wanted to better protect consumers against certain deceptive practices, and to facilitate their contact with the seller, before and after the sale.

A package of measures was voted on in the form of a 2019/2161 directive known as Omnibus. Member States had to transcribe this directive into national law before 28 November 2021 (many such as France, Luxembourg and Belgium were late), to take effect in all EU countries on 28 May 2022 Between these new obligations:

price reduction announcements

A new rule applies (online, but also in physical stores): when you want to communicate a price reduction, the seller is now obliged to explicitly indicate the price he was charging before. The reference period becomes the lowest price during the 30 days prior to the price reduction.

While it was already forbidden to make believe in a reduction by indicating as a reference price the price charged by a competitor or the retail price recommended by the manufacturer, the new regulation therefore imposes a previous minimum reference period of 30 days, whereas previously this duration was not was clear (it had to be only significant in relation to the period of reduction).

So it is no longer possible to sell a pair of shoes at 90 euros, move to 120 euros for one week, and display in the next two weeks 60 euros with a label showing -50%. From now on, in this example, the label should be -33%. There is no longer a question of just indicating in red “promo: 60 euros”.

This regulation has an impact on physical commerce, but even more so online, given the proliferation of promotional operations among e-retailers, as well as the development of the temporary sales and dropshipping business model. It will be significantly more difficult to get labels to change frequently while advertising (falsely) advantageous price reductions. But on the other hand, it will generate greater consumer confidence, some of whom have grown tired of false bargains. This transparent rule should lead to fairer competition among e-merchants.

Most Member States have activated in their national legislation the possibility, when the price reduction is gradually increased (succession of price reductions, for example – 20%, then -30%, then -40%), to be able to mention how previous price the price before the first price reduction. Exceptions can also be made for products that may deteriorate or expire quickly.

fake consumer reviews

A new obligation weighs on the seller (or the market that publishes these reviews): it must inform the internet user of the information that makes it possible to establish whether and how he guarantees that the published reviews come from consumers who have actually used or purchased the product.

They are considered unfair commercial practices (it is now explicit, even if previously some jurisprudence was in this sense):

  • claim that product reviews are submitted by consumers without taking reasonable and proportionate steps to verify that they are actually from consumers;
  • send or instruct an individual or legal entity to submit false consumer reviews or recommendations or misrepresent consumer reviews to promote products.

Also remember that the professional must refrain from giving an opinion on a product or service sold by a competitor, even if he has bought it (depreciation practice).

The virtual gondola ends

If, after a search request related to a criterion (or term) chosen by the internet user, the site presents a ranking of results that does not fully respect this criterion, it must explicitly indicate this (for example, in the case of an offer highlighted in the first positions, at the top of the shelf, because the manufacturer gives the seller a margin of return to highlight this offer in an internal search result without taking into account the criteria or terms entered by the Internet user). It is also recalled that, in accordance with the principle of transparency of commercial communications, the website must inform the consumer of any advertising.

Phone numbers in legal notices and social media

There are still other new obligations that took effect on May 28, 2022, some of which apply specifically to marketplaces. This article aims to provide the information that most concerns online professionals, our 4th point of attention will focus on legal notices: it is now mandatory to indicate the professional’s telephone number, in addition to the email address. The legislator wanted, in fact, to facilitate direct contact between the buyer and the seller and to oppose a case law that had been established considering that a telephone number was not mandatory if the seller provided other easy means of communication. This information must appear with other legal notices on any professional website (commercial or otherwise) as well as on any profile pages on social media.

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