Ticking off Neelie Kroes (sort of)

In which I take issue with the European Commission V-P about what the Consumer Rights Directive says about pre-ticked boxes

I found myself retweeting what I think was a rather misleading message from the Vice-President of the European Commission, Neelie Kroes. Her tweet said

You know those annoying “pre-ticked boxes” on shopping/travel websites? They’re banned in #EU from today http://europa.eu/rapid/press-release_IP-14-655_en.htm#eCommerce

I thought this was very interesting, particularly in light of my recent post about the implying of consent to electronic marketing if people forget to untick such boxes. The EU press release itself does say at one point

Under the new EU rules…consumers can now rely on…A ban on pre-ticked boxes on the internet, as for example when they buy plane tickets

But, it earlier says

The new rules also ban…pre-ticked boxes on websites for charging additional payments (for example when buying plane tickets online)

The emphasis I’ve added in that last quote is crucial. What DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2011 on consumer rights actually proscribes is the contractual binding of a consumer to any payment in addition to the original remuneration agreed on if

the trader has not obtained the consumer’s express consent but has inferred it by using default options which the consumer is required to reject in order to avoid the additional payment

 So, as the press release explains,

When shopping online –for example when buying a plane ticket – you may be offered additional options during the purchase process, such as travel insurance or car rental. These additional services may be offered through so-called pre-ticked boxes. Consumers are currently often forced to untick those boxes if they do not want these extra services. With the new Directive, pre-ticked boxes will be banned across the European Union.

I happen to think that that text should more properly say “With the new Directive, pre-ticked boxes of this sort will be banned across the European Union”.

So, no ban on pre-ticked boxes themselves, just on those which purport to bind a consumer to an additional payment under a contract.

The Directive has been implemented in the UK by  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and associated The Enterprise Act 2002 (Part 8 EU Infringements) Order 2013 the former of which says (at regulation 40)

Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.. There is no express consent (if there would otherwise be) for the purposes of this paragraph if consent is inferred from the consumer not changing a default option (such as a pre-ticked box on a website)

Having said all this, I do think it is interesting that clearly-defined concepts of “express consent” are making their way into European and domestic legislation. And in due course, we may even find that, for instance, electronic marketing will be restrained unless similarly clearly-defined express consent is given. But not just yet.

Update: Ms Kroes kindly replied to me, saying it’s difficult to get a message across in 140 characters. So true.





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Filed under Data Protection, Europe, marketing, PECR

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