Shopping online offers the ultimate convenience as it is possible to buy anything online: small items like clothes, gadgets and groceries, to larger items like household appliances and furniture, from practically anywhere in the world, and have them delivered straight to your door. Digital items, such as music, films, computer games and software, can be bought online and received instantaneously. It is not surprising then, that nowadays, the way to shop is online.
In the absence of proper regulation, however, online transactions could be riskier than those taking place physically within a premises. In the first place, when transacting online, the parties do not meet as they do when transacting in the physical world. Furthermore, the consumer is not able to actually able to look at, try on or touch the item which has sparked his interest. Thus, the law attempts to bridge that gap in a number of ways as described below.
When a consumer based in Malta buys goods or services online, he is protected as discussed in our section on Shopping as a Consumer in Malta. Additionally, however, added protections come into effect for all consumers shopping within the European Union, as consumers’ rights online are harmonised through a number of directives such as the e-Commerce Directive (Directive 2000/31/EC) and the Consumer Rights Directive (Directive 2011/83/EU).
The e-Commerce Directive, transposed into Maltese law through the Electronic Commerce Act (Chapter 426 of the Laws of Malta) mandates that the provider of an online service must provide certain information to the recipient, to ensure that the recipient of the service knows exactly who he is dealing with, thus putting a ‘face’ to a faceless transaction and providing an additional level of security to the said recipient. A confirmation through email must always be sent by the provider. The information which the service provider must produce must be easily, directly and permanently accessible, and such information would generally include, inter alia:
- the name, contact details (including email address) of the service provider and the geographic address at which it is established;
- any trade register where the service provider is registered and details of the registration;
- where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority;
- where the service is subject to VAT, the provider’s VAT registration number; and
- a clear indication of any prices, and whether these include tax and/or delivery costs.
Additionally, the following information is required to be given to consumers by virtue of the Consumer Rights Directive, transposed into Maltese law through the Consumer Affairs Act (Chapter 378 of the Laws of Malta) and the Consumer Rights Regulations (Chapter 378.17 of the Laws of Malta):
- a description of the main characteristics of the goods or services;
- if any of the above costs cannot be calculated in advance, consumers must be informed about the existence of these costs and, where applicable, the manner in which the price is to be calculated;
- in case of contracts of a subscription nature, the price quoted must include the total monthly costs;
- the cost of using distance communication if the charge is more than the basic rate;
- the method of payment and when the goods will be delivered (in case of services, when these will be performed); and
- the existence of a legal guarantee of conformity for goods and, where applicable, the existence of the commercial guarantee and after-sales service.
It should be noted that online consumers are not obliged to pay any charges or other costs if they were not properly informed about them before placing an order.
When buying online, a consumer has a cooling off period of fourteen (14) days from date of delivery. This right is given by the abovementioned Consumer Rights Regulations (transposing the Consumer Rights Directive). The cooling off period can be extended to twelve (12) months if the trader failed to provide the information mentioned in the previous paragraph, or failed to mention that the consumer has the right to cancel the sale.
When a consumer has availed himself of the right of withdrawal from the sale, a trader will have to pay for the return of the item unless he had made it amply clear that he will not bear this cost. The trader is obliged to reimburse all payments received from the consumer, including the cost of delivering the goods to the consumer, not later than fourteen (14) days from when the trader is informed of the consumer’s decision to withdraw from the contract. However, the trader will not be required to refund the additional cost of delivery service that wasn’t standard. The trader may withhold the reimbursement until he has received the goods back or until the consumer has supplied evidence of having sent back the goods.
The cooling off period does not apply to certain items, such as made-to-measure goods, unsealed audio or video recordings or computer software, perishables and services used by consumers before the end of the cooling off period. Furthermore, goods bought in auctions can only be returned when bought from a professional trader. With regard to purchases of digital content, such as music or video downloads, a consumer can only exercise the right of withdrawal until the moment that the actual downloading process begins.