Quizgecko5.docx

. Imprint and disclosure 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 making the communication. As far as the requirements of all the different laws are fulfilled, the in...

. Imprint and disclosure 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 making the communication. As far as the requirements of all the different laws are fulfilled, the information does not have to be given more than once, of course. 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 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. 51). 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. You will study these requirements in different modules, including in BA CM 7 (Digital Law) Starting a website and commercial communications 33 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. that read out the text of a website to a blind person). The Disability Equality Act (BundesBehindertengleichstellungsgesetz, BGStG) prohibits the discrimination of persons with disabilities 34 Starting an E-Commerce Business in Austria 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 discrimination on grounds of sex or ethnic origin with regard to any provision of goods or services which are available to the public irrespective of the person concerned, including residential homes. Direct 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 a Member State and which are offered to customers on a specific territory or to specific groups of customers on a non-discriminatory basis. Aspects of equality and of how the law should deal with gender will be discussed in depth in MA CM 2 (Legal and Political Philosophy). Starting a website and commercial communications 35 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 ‘Regular’ dispute resolution between private parties occurs before State courts, where independent State judges resolve disputes by way of passing a judgment or other binding decision that is then, if necessary, subject to enforcement by the court. Jurisdiction in the first instance is either with the 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. 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). You will study dispute resolution mechanisms in MA CM 4 (Law of Civil Procedure) B2C dispute resolution may also be addressed in BA CM 9 and CM 10 (Civil Law and Private International Law). 36 Starting an E-Commerce Business in Austria 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 (AlternativeStreitbeilegung-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 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.