Starting a Website and Commercial Communications PDF

28 3. Starting a website and commercial communications  Starting a website and commercial communications 29 Selma and Sebastian have finally received the trade licence, their tax numbers and company UID number, and are insured...

28 3. Starting a website and commercial communications  Starting a website and commercial communications 29 Selma and Sebastian have finally received the trade licence, their tax numbers and company UID number, and are insured with the GSVG. After having struggled with all these formalities, they are really keen to get going and to set up a trading website. This is probably a technical issue, right, so there can’t be much to consider from a legal point of view …. well, actually, there can. Setting up an online shop has become a very complex matter, and legal requirements follow from a variety of different legal sources. 3.1. Choosing a domain name The first step is usually to select a domain name. When selecting a domain, care must be taken to ensure that the chosen Internet address (domain) does not infringe the rights of third parties. Internet registrars will normally allocate domains on a ‘first-come-first-serve’ basis, but will not investigate whether any third party rights could be infringed. In Austria, such rights of third parties can arise in particular from trademark protection (see above p. 21), i.e. the domain chosen must not infringe someone else’s registered trademark, such as by creating confusion as to a link between the website and the trademark owner. Even beyond registered trademarks, using a distinctive name or other designation in such a way that confusion can be caused with a competitor may amount to unfair competition under the Act Against Unfair Competition (Bundesgesetz gegen den unlauteren Wettbewerb, UWG). Note that also ‘domain grabbing’, i.e. registering domains with the sole purpose of blocking them for others in order to sell it to them at a high price, amounts to unfair competition. Finally, domain names can also interfere with another person's right to a name that is protected under the ABGB (this can be a natural person, but also e.g. a company, municipality or country). Names the creation of which represents a specific intellectual achievement may also be protected by copyright (see below p. 30). Luckily, nobody has ever thought of registering the domain ‘www.maswys.eu’, and they made this name up entirely by themselves, so Selma and Sebastian are pretty safe in this regard. 3.2. Dealing with content generated by others Corporate design is the next step. They browse the Internet and find some designs they are really fond of. They like background photos that fill the whole page, and moving photo banners, and they have already found some great photos on the Internet that are available in high resolution. The Internet is just wonderful, as everything is there for free … … well, not quite, actually. Setting up a trading website requires a website design, photos, descriptions of products and services, and many other elements. It is very tempting to take them from ‘the Internet’, as so much content seems to be ‘freely’ available. However, simply copying photos, text etc. from other people without their permission is often illegal. 30 Starting an E-Commerce Business in Austria 3.2.1. Content protected under copyright law (Urheberrecht) The most important restrictions follow from copyright law, which is part of a wider body of the law called ‘intellectual property (IP) law’ (Recht des geistigen Eigentums, Immaterialgüterrecht). Unlike industrial property rights such as patents or trademarks (gewerbliche Schutzrechte), copyright and related rights arise without any formal act such as registration. Rather, these rights arise automatically and with regard to an extremely broad range of human activities, which means they are very easily overlooked and infringed. You will study IP law in In particular, these rights arise irrespective of whether BA CM 11 (Business Law) and to or not someone has added the copyright notice ‘©’; some extent in CM 7 (Digital Law). under Austrian law, this notice does not produce any additional legal effects. Protection in Austria Copyright protection exists for certain concrete expressions of human intellectual achievements, and for a certain period of protection (Schutzdauer). The expression may be in various forms, such as in writing, or code, or even made orally (e.g. in a speech), but mere ideas are not protected. Protection is only afforded for a limited number of types of works (Werkkategorien), but the categories are rather broad and include literature, music, photos, films, videos, but also computer programs and databases. There must be a minimum degree of originality (Eigentümlichkeit, Werkhöhe) in the sense of being the own intellectual creation of an author, but the threshold is very low, which means that even characteristic tweets or posts may be copyright-protected. In addition to copyright (Urheberrecht) in the proper sense, particular achievements may be protected by related rights (verwandte Schutzrechte) even where the necessary degree of originality is not met. Most importantly for anyone wishing to set up a website, any kind of photos are protected, even where these photos have zero artistic value and are not an expression of the photographer’s creative skills and therefore do not qualify for copyright in the proper sense. Whether, e.g., a photo is protected by copyright in the proper sense or just by a related right does not make a great difference in practice for someone who wishes to use content created by others, except for the period of protection. The main difference is that copyright is a bundle of rights consisting of moral rights, especially the author’s personality right (Urheberpersönlichkeitsrecht), and a number of economic exploitation rights, while the related rights are only about economic exploitation. The moral rights component of copyright in the proper sense means that copyright as such cannot be freely transferred, that the author has a right to be credited as author, that copyright is always vested in the concrete author and not in the author’s employer, and that works are protected also against activities such as unauthorised modification. Beyond the rights of the person generating the photo one must not forget the persons displayed, e.g., on a photo, who may rely on a ‘right to one’s own image’ (Recht am eigenen Bild) or similar aspects of personality rights that may be infringed by use of their photos in advertising or in a context that is likely to harm their legitimate interests without their consent. Some works are excluded from copyright and related rights, in particular the text of legislative instruments and other documents produced by the State in the exercise of sovereign power (e.g. court judgments). Protection of foreign material Selma and Sebastian did not previously know that photos on the Internet are not really free for everybody to use. They find this rather difficult to understand. And some of the really cool stuff they saw  Starting a website and commercial communications 31 is not from Austria at all and not even from Europe, but was uploaded by someone in the U.S. They are wondering whether this changes things in their favour….. IP law is generally governed by the principle of territoriality, which means that a person conducting activities ‘in Austria’ must respect foreign copyright (only) to the extent that Austria is, under EU law or international law, bound to recognise this copyright. With online activities it is often not clear whether an activity takes place ‘in Austria’ or also in other countries, if not worldwide. It is indeed held that online publication of content that infringes someone else’s copyright takes place in all countries worldwide from where the relevant site is accessible (i.e. is not blocked by geo-blocking measures) except in countries where, e.g. for language reasons, the infringement has but negligible effect. Austria is bound by EU copyright law and, directly or indirectly, by a broad range of international agreements, such as the Universal Copyright Convention (UCC) or the Berne Convention. As far as this is the case, foreign works enjoy, in Austria, largely the same level of protection as works created by Austrians. 3.2.2. Activities requiring the rightholder’s consent Selma and Sebastian are not giving up – they find all this hard to believe. Why would they need anybody’s consent if all they are doing is copying and displaying a photo that has already been published on the Internet? Surely, this cannot require anybody’s consent, can it? Well, as a matter of fact, it can. Activities covered Where someone has copyright in a particular intellectual achievement this means that this person has an exclusive right to authorise or prohibit certain forms of utilisation of this achievement by others. The forms of utilisation are listed in the law and include, inter alia, any reproduction, modification or translation, making available to the public, rental and lending to others, or distribution (by sale or otherwise). In the tangible world, the distribution right is normally ‘exhausted’ in respect of the original or copies of the work where the first sale is made by the rightholder or with their consent (e.g. the rightholder cannot prevent the buyer of a printed book from transferring ownership in the volume to others). However, this is different in the digital world. While the CJEU has accepted that there is exhaustion with regard to computer programmes marketed with a license for an unlimited period of time, this is not so with other digital content (e.g. the buyer of an e-book does not necessarily have the right to pass the e-book on to a friend). Mere consumption of protected content (e.g. the viewing of a video, the reading of a text) is not included in the activities the rightholder can control, unless that consumption involves reproduction. Also the recommendation of content published elsewhere, i.e. telling others where they can find that content, is not included. However, where others are led to protected content by way of a hyperlink that may amount to ‘making available to the public’ where, by setting the hyperlink, the protected content is effectively made available to a ‘new audience’ that would otherwise not have been reached, such as when content would normally have been behind a paywall. The embedding in a website (by means of the technique of framing) of protected works that are freely accessible to the public on another website constitutes ‘communication to the public’ where that embedding circumvents measures imposed by the copyright holder to provide protection from framing. 32 Starting an E-Commerce Business in Austria The law has recently been changed to provide that an ‘online content-sharing service provider’ (e.g. YouTube) performs an act of communication to the Copyright law is a highly public or an act of making available to the public contested area of the law. when it gives the public access to copyright- To what extent should protected works or other protected subject matter information and knowledge be uploaded by its users. An online content-sharing free for everyone? Is it fair that service provider must therefore obtain consent from intellectual achievements of the rightholders, for instance by concluding a humanity are monopolised by licensing agreement. some few? Why do we need property rights at all? And must Statutory categories of free use Artificial Intelligence (AI) at some Selma and Sebastian are now completely confused. So point be afforded similar are their law professors in class infringing IP law when author’s rights as humans? they use photos for illustration purposes (duly indicating These and many other questions the source) on their slides? Actually, most probably not… are reflected in MA CM 2 (Legal In a number of cases, the law provides for exceptions and Political Philosophy). from or limitations to copyright and related rights, i.e. there are some statutory cases of free use (freie Werknutzungen). Such exceptions and limitations follow the ‘three-step-test’, i.e. they must (i) only be applied in certain special cases which (ii) do not conflict with a normal exploitation of the work or other subject-matter and (iii) do not unreasonably prejudice the legitimate interests of the rightholder. Exceptions and limitations with particular relevance in the online world include, inter alia: Temporary acts of reproduction which are transient or incidental and an integral part of a technological process required to enable a lawful use or transmission and which have no independent economic significance (e.g. data in the cache from a streamed video); incidental inclusion of a work or other subject-matter in other material (e.g. a painting is visible in the background of a photo primarily displaying a group of persons); reproductions on any medium made by a natural person exclusively for private use; quotations for purposes such as criticism or review in accordance with fair practice; and use for the sole purpose of illustration for teaching or scientific research and other public interest activities as listed in the Copyright Act (Urheberrechtsgesetz, UrhG) and under the relevant conditions imposed. Note that the Austrian legislator has not yet included an explicit exception for use for the purpose of caricature, parody or pastiche (e.g. memes), but arguably there exists an unwritten exception, in line with EU law and fundamental rights considerations. Free activities with regard to illegally uploaded content? In their private lives, Selma and Sebastian love watching the latest blockbusters, but they often do not want to invest in cinema tickets. And the stuff is usually online very quickly, via one of those dodgy platforms with servers located in far-away territories … simply watching must be OK, everybody does it, or is there a risk after all? It is to be noted that even activities that are normally ‘free’, such as setting a hyperlink without making the content available to a ‘new audience’, or making a copy for private use, are unlawful where the person engaging in the activity knew or could reasonably be expected to know that the content had initially been made available without the proper consent by the rightholder.  Starting a website and commercial communications 33 Thus, setting links to illegally uploaded video material, or downloading illegally uploaded video material onto one’s private hard disk drive, is in itself a violation of copyright. In a commercial context, there is even a presumption that the person setting a link etc. was aware of the illegality. It is a point of controversy whether already the transient and incidental reproduction of video and similar material in the cache of the viewer’s device is illegal where the viewer was or should have been aware of the fact that upload of the content itself was illegal, i.e. whether viewing illegally uploaded content with one’s device is in violation of copyright. 3.2.3. Consent of the rightholder Selma and Sebastian are now really desperate. So much of what they and their friends are doing on a regular basis seems to be totally illegal! How can you ever share stuff on social media without violating the law? The fact that content generated by others is protected by copyright or a related right and that the activity envisaged is not a free activity means that the activity is subject to the rightholder’s consent, which is often referred to as a ‘license’. Licenses can be exclusive, excluding even the rightholder from engaging in that activity (Werknutzungsrecht), or non-exclusive (Werknutzungsbewilligung). Consent to particular activities can be given in any form, even tacitly, e.g. by inserting icons and functionalities that invite the sharing of content with others via social media channels. Just posting something on the Internet does, however, not amount to tacit consent. Even where consent is given, this normally still means that you have to name the author when using content generated by others (to be decided by the author, who may waive this right). Where a rightholder has given consent to particular activities to the public for free this may lead to a situation where others create something new with the help of that content, acquire copyright in the new content (possibly shared with the initial rightholder), and exploit that right commercially. In order to prevent this, the initial rightholder can also give consent only under conditions, e.g. permit modifications of the content only under the condition that the person modifying the content makes it freely available to others on the same basis. This is the idea underlying open access and open source development, such as by way of the ‘Creative Commons’ standard licenses. 3.2.4. Similar restrictions Selma and Sebastian are wondering whether the same holds true for designs in the broader sense, e.g. combinations of font, colour, and the way things are arranged on the website … While copyright already poses far-reaching restrictions on anyone who wants to use or be inspired by content generated by others, there may be further and similar restrictions arising from other considerations and areas of the law. Use of names, colours, logos etc. may violate someone else’s registered trademark, see above p. 21 (and the same holds true, by You will study unfair competition the way, for using someone else’s trademark for metatags law in BA CM 11 (Business Law) or keyword advertising, e.g. it would normally not be and personality rights in allowed to use the name of a famous fashion brand for BA CM 9 (Civil Law) and CM 10. search engine optimisation if one is not a recognised trader of that brand). Use of content generated by others can also violate unfair competition law (Lauterkeitsrecht, Recht des unlauteren Wettbewerbs) under doctrines of parasitic copying and similar doctrines even where that content does not qualify for copyright or a related right, or any other IP right in the proper sense. 34 Starting an E-Commerce Business in Austria 3.3. Imprint and disclosure requirements OK, they got it – either create your photos, designs etc. yourself or buy them on the market, if you want to be on the safe side. But are you entirely free how to design your website, or are there any binding requirements? A range of different laws require that websites and/or commercial communications disclose the identity and further details of the person operating the website or You will study these making the communication. As far as the requirements of requirements in different all the different laws are fulfilled, the information does modules, including in BA CM 7 not have to be given more than once, of course. (Digital Law) 3.3.1. General provisions for traders According to § 63 GewO, traders who are natural persons and are not registered in the company register have to disclose their name and the location of their trade licence in emails and on websites. The main aim of the Services Act (Dienstleistungsgesetz, DLG) is to realize the freedom to provide services in the internal market. According to § 22 DLG, providers of services must make a long list of items of information available to the recipients of the services. According to § 14 of the Commercial Code (Unternehmensgesetzbuch, UGB) commercial letters and forms, including electronic, that are directed at particular persons (such as offers, order forms or invoices) as well as websites must disclose particular details about the company. 3.3.2. Special provisions for websites According to § 25 Media Act (Mediengesetz, MedienG), every website must disclose, at least, the name or trade name of the media owner (i.e. the person operating the website), the geographic location of the media owner (i.e. the place of residence or seat) and if applicable the business purpose (so-called ‘small disclosure’). Note that a media owner (Medieninhaber) may be a simple online shop or even a private person operating a website, not to be confused with a media business (Medienunternehmen), which is a business whose core activities, or part thereof, consist in providing information (e.g. a newspaper or TV channel). If a website goes beyond the general presentation of the company by including content that is likely to influence other people’s opinions, a range of further information must be disclosed (so-called ‘big disclosure’). Providers of so-called information society services, including online shops, have to comply with the duties under the new Digital Services Act (Gesetz digitale Dienste, DSA, see below p. 6154) and the E-Commerce Act (E-Commerce-Gesetz, ECG). There are three categories of information and related duties under the ECG: general disclosure duties, information duties in the context of commercial communications, and information as well as related duties in the context of contracting (on which see below p. 54). General disclosure duties include the name and trade name, geographic address of establishment where official documents can be served, contact details which allow the trader to be contacted rapidly and communicated with in a direct and effective manner (including electronic mail address, but at least one other means of communication), the trade register and registration number, and the VAT registration number (UID). There are further disclosure duties for regulated trades and professions.  Starting a website and commercial communications 35 For online platforms enabling traders to conclude distance contracts with consumers, the DSA requires the disclosure of additional information on the traceability of the traders (see below p. 61). 3.3.3. Special provisions for electronic advertising and marketing Selma and Sebastian find all this rather complicated. They draw up a checklist and tick off all the items that have to be on the website and in every commercial electronic message they send, e.g. by email or on social media. Now that they have finally finished this task they are wondering whether they can send marketing messages to all the students in their class… Commercial communications must always be clearly identifiable as such, e.g. clearly separated from other content and/or specifically flagged as advertising. Furthermore, the natural or legal person on whose behalf the commercial communication is made must be clearly identifiable. There are also special rules in the ECG for pricing, but for most cases, in particular for B2C contracts, the Price Indication Act (Preisauszeichnungsgesetz, PrAG) provides for more specific rules. They include that the selling price (Verkaufspreis) indicated is the final price for a unit, including VAT and all other taxes, and that in the case of goods offered by volume, weight or length the price per unit of measurement (Grundpreis) must normally be displayed in addition to the selling price. The ECG provides that traders undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out register in which natural persons not wishing to receive such commercial communications can register. In Austria, all those who do not want to receive unsolicited e-mails can register on the ‘ECG list’, which is maintained by the Regulatory Authority for Telecommunications and Broadcasting (RTR). Further details are provided by § 174 Telecommunications Act (Telekommunikationsgesetz, TKG). The use of automated electronic mail for the purposes of direct marketing is normally allowed only in respect of users who have given their prior consent. However, where a business has (i) rightfully obtained from its customers their electronic contact details, in the context of the sale of a product or a service, the same business may use these contact details for direct marketing of (ii) its own similar products or services provided that (iii) customers clearly and distinctly are given the opportunity to object to such use of electronic contact details at the time of their collection and on the occasion of each message. In any case, such electronic mail must not be sent where (iv) the customer has initially refused such use, including by way of an entry in the ECG list. Generally speaking, the UWG prohibits a broad range of unfair commercial practices, including any kind of commercial communications that are aggressive or misleading (such as by pretending that products or services are available only in an extremely limited quantity and for an extremely limited period of time and thus putting consumers under pressure to make rash decisions). 3.4. Non-Discrimination Law When Matteo tells them that when he set up his webshop, he had to deal with non-discrimination law, Selma and Sebastian are totally confused. How can selling goods and services on the Internet discriminate? After all, everyone has equal access to an online shop …. 3.4.1. General non-discrimination law Not every website is barrier-free for persons with disabilities, but rather a website has to be set up in a particular way in order to ensure interoperability with commonly used assistive technologies (e.g. 36 Starting an E-Commerce Business in Austria that read out the text of a website to a blind person). The Disability Equality Act (Bundes- Behindertengleichstellungsgesetz, BGStG) prohibits the discrimination of persons with disabilities and promotes and requires barrier-free access, including of websites offering goods or services to the public. The Equal Treatment Act (Gleichbehandlungsgesetz, GlBG) applies mostly to labour relations and similar specific areas, but §§ 30 et seq. GlBG prohibit Aspects of equality and of how the discrimination on grounds of sex or ethnic origin with law should deal with gender will be regard to any provision of goods or services which are discussed in depth available to the public irrespective of the person in MA CM 2 (Legal and Political concerned, including residential homes. Direct Philosophy). discrimination means that one person is treated less favourably, on grounds of sex or ethnic origin, than another would be treated in a comparable situation. Indirect discrimination means that an apparently neutral provision, criterion or practice would put persons of one sex or ethnic origin at a particular disadvantage compared with persons of the other sex or ethnic origin, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Online shops would normally not openly discriminate on grounds of sex or ethnic origin, but pricing algorithms, or equivalent ranking algorithms, might well have discriminative effects. For instance, a self-learning algorithm (so-called ‘artificial intelligence’) might ‘learn’ by way of pattern recognition that customers who were interested in ladies’ fashion are, statistically, prepared to pay higher prices for fabric-gentle washing liquids than other customers, and thus offer those customers a higher price for such washing liquids. Even if the operator of the online shop is not aware of this effect, it amounts to indirect discrimination. 3.4.2. Prohibition of geo-blocking The Geo-Blocking Regulation prohibits unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment. In essence, a trader must not block or limit a customer's access to the trader's online interface for reasons related to the customer's nationality, place of residence or place of establishment; redirect a customer to a version of the trader's online interface that is different from the online interface to which the customer initially sought access, by characteristics that make it specific to customers with a particular nationality, place of residence or place of establishment, unless the customer has explicitly consented to such redirection; apply different general conditions of access to goods or services, for reasons related to a customer's nationality, place of residence or place of establishment, for a defined range of contracts; accept or decline payment instruments issued in another Member State on a discriminatory basis. For instance, an online retailer selling to Austria and Romania, with different trading websites for each of these countries, may not prevent Austrian customers from shopping on the Romanian website. Nor may that trader prevent a German customer from shopping on the Romanian website. However, the trader cannot be forced to deliver goods to Germany, but may insist the customer collect the goods in either Austria or Romania. It is important to note that the Geo-Blocking Regulation does not prevent traders from offering general conditions of access, including net sale prices, which differ between Member States or within  Starting a website and commercial communications 37 a Member State and which are offered to customers on a specific territory or to specific groups of customers on a non-discriminatory basis. 3.5. Alternative Dispute Resolution Selma and Sebastian truly hope that this is everything and that they can start selling things. But, unfortunately, there is more to consider already when setting up a trading website.…. Additional duties for traders exist with regard to alternative dispute resolution, at least when traders intend dealing with consumers. ‘Alternative’ dispute resolution is dispute resolution other than by State courts (also referred to as ‘out-of-court dispute resolution’). 3.5.1. Dispute resolution in general You will study dispute ‘Regular’ dispute resolution between private parties resolution mechanisms in MA occurs before State courts, where independent State CM 4 (Law of Civil Procedure) judges resolve disputes by way of passing a judgment or other binding decision that is then, if necessary, subject to B2C dispute resolution may also enforcement by the court. be addressed in BA CM 9 and CM 10 (Civil Law and Private Jurisdiction in the first instance is either with the International Law). district court or with the regional court, depending on the type of dispute and the value of the claim (Streitwert). Generally, disputes are resolved under the general rules of civil procedure (Zivilprozessverfahren), but for some types of disputes (e.g. company register matters) a special type of non-contentious proceedings (Außerstreitverfahren) exists. Appeals against judgments of the district court go to the regional court, appeals against judgments of the regional court go to the higher regional court. In important cases, in particular where legal issues of general significance are to be resolved, a second appeal (Revision) to the Supreme Court is still possible. The Commercial Court of Vienna (Handelsgericht Wien) is a regional court specialised in corporate law for the federal capital Vienna. Inter alia, it has jurisdiction for contractual claims with a value of over EUR 15,000 against businesses registered in the company register as well as for particular matters such as unfair competition and copyright. It also deals with insolvencies of companies and keeps the company register. For the whole of Austria, the Commercial Court of Vienna decides, e.g., in trademark, design and patent law matters. Many disputes before State courts are not resolved by way of a judgment, but by way of court settlement (gerichtlicher Vergleich), i.e. the parties agree, under the auspices of the court, on a binding solution, which usually strikes some kind of middle ground between the positions originally taken. This is not considered as ‘alternative’ dispute resolution but as one out of several ways in which proceedings before State courts can be brought to an end. Mediation is a type of alternative dispute resolution in which one or several mediators support the parties in developing an amicable solution themselves. Often a court suggests to the parties putting proceedings on hold and trying mediation. A different form of dispute resolution is arbitration (Schiedsgerichtsbarkeit), which means that parties agree (usually in advance, when they enter into a contractual or other relationship), on ‘private’ judges who are authorised to issue an arbitral award (Schiedsspruch) that is binding between the parties and can be challenged before State courts only under very narrowly defined circumstances. 38 Starting an E-Commerce Business in Austria Arbitral awards may still have to be enforced by State authorities, but thanks to international conventions, notably the New York Convention, this is usually provided for in a large number of countries worldwide. Arbitration is usually quicker, provides better confidentiality (proceedings not public, award not published), and the parties can choose judges who are experts in a particular subject matter. However, this is not suitable for everyday small value claims, and there are particular safeguards for B2C contracts (e.g. the agreement may only be made after the dispute has arisen). 3.5.2. Consumer ADR and ODR Alternative Dispute Resolution Act Online traders may wish to participate in an alternative dispute resolution (ADR) regime when dealing with consumers. This is dealt with in the Alternative Dispute Resolution Act (Alternative- Streitbeilegung-Gesetz, AStG). ADR entities do not issue binding decisions, but they assist in settling the dispute amicably by way of agreement between the parties, and using their services is free. There is an enumerative list of businesses that are obliged by law to participate in such a regime, but running an online shop is not among them. An online shop established in Austria has a choice between the Internet Ombudsman and the general Conciliation Board for Consumer Contracts (Schlichtung für Verbrauchergeschäfte), but may also commit to neither of them, or to both. A business established in the EU/EEA that deals with consumers must inform consumers about the ADR entity or ADR entities by which those traders are covered. That information must include the website address of the relevant ADR entity. It must be provided in a clear, comprehensible and easily accessible way on the business website and, if they exist, in the general terms and conditions. In any case, i.e. irrespective of whether or not the business generally commits to an ADR scheme, the business has certain duties whenever there is a dispute between that business and a consumer that could not be settled amicably after a complaint had been submitted directly by the consumer to the business. In this case, the business must (i) provide the consumer with the website address of the relevant ADR entity and (ii) specify whether the business will make use of the relevant ADR entity to settle the dispute in the concrete case or not. That information must be provided on paper or on another durable medium, such as by email. So a business that does not generally commit to an ADR scheme may still decide to make ad hoc use of such a scheme. Regulation on consumer ODR Additional rules and duties apply to businesses established within the EU/EEA that engage in online sales or service contracts, or run an online marketplace. They are connected with the ODR platform operated by the European Commission. Contrary to what might be the immediate assumption, the ODR platform does not resolve disputes itself, but serves as a single point of entry for consumers and traders seeking the out-of-court resolution of their disputes. Its functions include, inter alia to provide an electronic complaint form which can be filled in by the complainant party; to inform the respondent party about the complaint, identify the competent ADR entity and transmit the complaint to the ADR entity which the parties have agreed to use; to offer an electronic case management tool and the translation of information which is necessary for the resolution of the dispute; and to provide additional support, transparency, and feedback mechanisms. Every business established within the EU/EEA that engages in online sales or service contracts or runs an online marketplace must provide on its website an electronic link to the ODR platform. That link must be easily accessible for consumers. The business must also state its e-mail addresses, ideally close to the relevant link and irrespective of whether the email address has already been  Starting a website and commercial communications 39 provided elsewhere. Where a business has committed to use an ADR scheme, it must inform consumers on its website (and, if an offer is made by e-mail, in that e-mail) about the existence of the ODR platform and the possibility of using it for the resolution of disputes. The information must also be provided in the general terms and conditions if such general terms and conditions exist.