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Since the beginning of the Coronavirus crisis, confinement obliges, e-commerce has experienced considerable development. For many merchants, there is no alternative: being present on the web and having an e-shop, or an “online store”, have become a necessity.

Here is a brief overview of the main obligations that a company wishing to launch an e-shop must meet. This note is not intended to be exhaustive, we are content here to summarize briefly the main obligations incumbent on the operators of an e-shop. These obligations may vary considerably depending on, among other things, the nature of the e-shop or the goods and services offered.

An e-shop is first and foremost a store. From a legal point of view, the main difference between a classic store and an e-shop is that the latter is only accessible remotely via an electronic means of communication. Thus, the company that operates an e-shop will not only have to comply with the rules applicable to companies operating an ordinary store but, in addition, take into account rules stemming from the new reality that these online stores represent.

These rules will also vary depending on whether the e-shop is aimed at consumers (B2C) or professionals (B2B).

In this article, we mainly recall the rules applicable to consumers.

In many cases, these additional rules will only require a summary adaptation of the company’s processes and contracts as well as attention to respect for the privacy of Internet users. In other cases, the changes to be made may be more significant.

Main legal obligations

For an e-shop that sells locally to consumers, the involvement will be quite limited.

  • Information. To begin with, the company will have to ensure that the consumer is properly informed. At each stage of the formation of the contract, information must be transmitted.

See the illustration above.

  • Right of withdrawal. Then, it will have to grant a right of withdrawal to the consumer in the cases provided for by law.
  • Respect for privacy. In order to respect the right to privacy of consumers whose data is processed, it will be necessary to ensure that they are provided with adequate information concerning the right to privacy and data processing (this includes a cookie banner). More generally, it will also be necessary to ensure that processes comply with the GDPR.

    Since many of these elements are usually mentioned in the general terms and conditions, it is advisable to revise them. Some elements should ideally be repeated at various points on the website – The information available on each page, according to the ordering process, should be verified. See our recommendations at the bottom of this article.

  • Consent. From a technical point of view, it is still necessary to ensure that the consumer’s consent is collected correctly (for example, it is forbidden to pre-tick boxes that commit consumers to pay additional costs) and to allow the possibility of retaining proof of the information transmitted to the consumer as well as of the consent obtained.

Complexification factors

Certain choices made by the company may increase its obligations, whether or not they arise from its online activities.

Here are a few examples:

  • Regulated goods and services. If the company promotes products and distributes certain content, special rules may also apply, such as those relating to games and contests but also to the sale of certain medicines.
  • Use of consumer contact information. If the company uses customer contact information to carry out direct marketing, such as sending a newsletter, the consumer must have consented to this and have the opportunity to unsubscribe easily and directly. In addition, the emails in question must mention a whole series of information.
  • Outsourcing. If the company practices outsourcing, it is necessary to ensure that your suppliers also comply with the obligations imposed by the GDPR.
  • E-shop with an international vocation. Thanks to the magnifying effect of the internet, an e-shop makes it possible to address a wider set of buyers located beyond borders. If the e-shop is aimed at consumers or uses suppliers abroad, special rules may apply (tax rules, restrictions on shipments for certain products deemed dangerous, competent courts and applicable law, etc.). This requires that you properly inform yourself with your advisors (for example, your accountant).

Other aspects not specifically related to the start-up via e-shop are to be taken into account your registration as an entrepreneur, the structuring of your activity, or the exercise of your commercial activity (for example, in terms of advertising or price display). It is therefore recommended, for example, to check that your activity on the Internet does not infringe the intellectual property of another entity.

Some recommendations

  • Start by talking to your usual partners (accountants, suppliers,…) for their recommendations on how to adapt your business to your new business.
  • Regarding legal documents, some sites offer the realization of standard general conditions. Some are well made and may be enough when your e-shop is relatively standard.

If you decide to write the documents for your e-shop yourself, be extremely vigilant. Drafting weaknesses could make your terms unenforceable. More importantly, certain rules must be respected at the risk of being punished civilly or even criminally. You can also contact legal advisors specialized in the field to obtain precise information about your obligations or to delegate to them completely the drafting of the necessary documents.

  • It can also be interesting to be certified by a label. The principle of a label is that an independent body will, upstream, verify the compliance of your e-shop with the regulations in force, and, downstream, inform you of regulatory developments and the necessary adjustments to be made. Such a label can reassure you and your customers. You can also benefit from and benefit your customers from a mediation service in the event of a consumer complaint. More information (such as safeshops.be or becommerce).

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Published on 28 October 2021
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