The validity of making information accessible through links
In the current digital environment in which we move, evidencing compliance with certain obligations, such as the obligation to report particular circumstances, is not always carried out appropriately.
Compliance with the obligation to inform is vital in processes in all areas, from general reporting, to contracts or even notices, so it is essential to be able to evidence the transmission of a specific text, on a given date, between certain issuers and recipients. Failure to comply with this obligation or the impossibility of evidencing such compliance, whether by post or online, leads to the invalidity of the contract.
The need to evidence compliance with this obligation in a digital environment has led to the enactment of Community Directives authorizing two types of evidence: on paper or on another ‘durable medium’.
If the process is formalized in person, compliance with the obligation can be evidenced on paper, whereas if it is done through electronic communications (between people who are not actually present), it is necessary to meet certain requirements for a medium to be considered “durable”, the Community definitions applicable being as follows:
– Community legislation refers to ‘instruments’ and coincides, on new means of proof, with Spanish legislation, which also mentions electronic files, which are also referred to as instruments.
– Of the four definitions of durable media in Community legislation, three refer to storing and one to keeping, which highlights the importance of enabling consumers to store the information they are sent.
– The instrument should enable the information to be directed/sent/transmitted in a personalized manner to the consumer. Publishing the information so it is the consumer that has to make the effort to receive it is not valid.
– The instrument should enable consumers to easily retrieve what they have saved for a sufficient period of time (for example, at least so that the parties can submit it in legal proceedings if necessary).
– The instrument should guarantee the consumer’s retrieval of the stored information without changes. The undertaking concerned must show that the information provided prior to the execution of the contract coincides with the terms of the agreement and that it has not been altered since the date on which it was initially sent.
Regarding the interpretation by case law of the definition of “durable medium”, the judgment by the CJEU of July 5, 2012, in case C-49/11 (the Content Services case), looked into whether it was possible to comply with the obligation to make information accessible to consumers merely via a link to the website of the undertaking concerned. The case involved information regarding the right of withdrawal from the contract which Content Services’ customers could only access via a link to the company’s website.
The judgment held that where the information on the website of the undertaking is only accessible via a link communicated to the consumer, the information is neither “given” to the consumer nor “received ” by him (within the meaning of article 5.1, of Directive 97/7). Moreover, the website with the link cannot be regarded as a durable medium, since it does not allow the consumer to store information which is personally addressed to him in such a way that he can access it and reproduce it unchanged during an adequate period without the seller being able to amend the content unilaterally.
The judgment also indicates that the making available of the information via a link is clearly a publication as opposed to information addressed personally to the consumer which is one of the key requirements in the EU definition of a durable medium.
Garrigues Outsourcing and Technology Department