Joasia Luzak, ‘Passive Consumers vs. The New Online Disclosure Rules of the Consumer Rights Directive’

Despite the growing academic criticism of using mandatory information duties as one of the main consumer protection measures in consumer law, the recently adopted Consumer Rights Directive (hereafter, the ‘CRD’) maintains this trend in Europe. The long and detailed list of information duties provided for traders in Articles 5 and 6 of the CRD applies to any sale and services consumer contracts that falls under the scope of application of the CRD. For traders, however, fulfilling this obligation may seem to be an exercise in futility due to little evidence that consumers read these disclosures and actually benefit from them. Instead of understanding the duty to disclose as a duty to inform consumers we could see it as a duty to reach consumers with the disclosure, so that consumers possessed the information contained in it when they needed it for reference. With this in mind it is important to inquire what efforts traders must undertake to ascertain that the disclosure reaches consumers and whether they could rely on an, at least partially, active behaviour of consumers in obtaining this information. This conundrum plays a special role in online transactions. The Consumer Rights Directive was adopted, among others, to update the so-far existing rules on consumer distance selling contracts to the modern technologies, especially the Internet. Recital 5 CRD specifically recognizes the importance of the future increase in online trade and for the first time in European consumer law the Internet is clearly mentioned as one of the means of concluding distance selling contracts in Recital 20 CRD.

Luzak, Joasia, Passive Consumers vs. The New Online Disclosure Rules of the Consumer Rights Directive (January 22, 2015). Forthcoming as a chapter in a book edited by M Loos and I Samoy, within the series Ius Commune: European and Comparative Law, published by Cambridge: Intersentia; Centre for the Study of European Contract Law Working Paper Series No 2015-02; Amsterdam Law School Research Paper No 2015-02.

First posted 2015-01-24 08:31:17

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