Since the beginning of the Coronavirus crisis, due to the need for containment, e-commerce has developed considerably. For many traders, there is no alternative: being present on the web and having an e-shop, or an “online shop”, have become a necessity. This page is dedicated to e-commerce. You will find a summary of the main obligations incumbent on e-shop operators as well as a gateway to the relevant items in our Knowledge Portal.
What is an e-shop?
An e-shop is above all a shop. From a legal point of view, the main difference between a classic shop and an e-shop is that the latter is only accessible remotely via an electronic means of communication. Therefore, a company operating an e-shop will not only have to comply with the rules applicable to companies operating a regular shop but will also have to take account of rules arising from the new reality of online shops. 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 the privacy of Internet users. In other cases, the changes to be made may be more significant.
Main legal obligations
The obligations may vary considerably depending, among other things, on the nature of the e-shop or the goods and services offered. For an e-shop that sells locally to consumers, the involvement will be quite limited.
- Information. First of all, the company will have to ensure that the consumer is properly informed. At each stage in the formation of the contract, information must be provided.
- Right of withdrawal. It must then 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, care must be taken to provide them with adequate information concerning the right to privacy and data processing (this is done in particular by means of a cookie banner). More generally, it will also be necessary to ensure that processes are in conformity with the DPMR. As many of these items are generally 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 as part of the ordering process should be checked. See our recommendations at the bottom of this article.
- Consent. At the technical level, it is still necessary to ensure that the consumer’s consent is properly collected (for example, it is forbidden to pre-tick boxes that commit consumers to pay additional charges) and to ensure that proof of the information transmitted to the consumer and of the consent obtained can be kept.
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 disseminates certain content, special rules may also apply, such as those relating to games and competitions but also to the sale of certain medicines.
- Use of consumer contact details. If the company uses customer details for direct marketing purposes, such as sending a newsletter, the consumer must have consented to this and have the opportunity to unsubscribe easily and directly. In addition, the e-mails in question must contain a whole range of information.
- Subcontracting. If the company practises outsourcing, you must ensure that your suppliers also comply with the obligations imposed by the GSPD.
- E-shop with an international vocation. Thanks to the magnifying effect of the internet, an e-shop makes it possible to address a wider range of buyers located beyond borders. If the e-shop addresses consumers or calls upon suppliers abroad, special rules may apply (tax rules, shipping restrictions for certain products deemed dangerous, competent courts and applicable law, etc.). This requires that you make the right enquiries with your advisers (e.g. your accountant).
Other aspects not specifically related to starting 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 thus, for example, recommended to check that your activity on the Internet does not infringe the intellectual property of another entity.
- Start by approaching your usual partners (accountants, suppliers,…) to get their recommendations on how to adapt your business to your new activity.
- As regards legal documents, some sites offer standard terms and conditions. Some are well made and can be sufficient when your e-shop is relatively standard. If you decide to write your own documents for your e-shop, be extremely vigilant. Weaknesses in drafting could make your conditions inapplicable. More importantly, certain rules must be complied with, at the risk of being civilly or even criminally sanctioned. You can also turn to legal advisers specialised in the field to obtain precise information on your obligations or delegate to them the complete 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, check the conformity of your e-shop with the regulations in force, and, downstream, inform you of changes in regulations and the necessary adjustments to be made. Such a label can reassure you and your customers. You can also benefit and make your customers benefit from a mediation service in the event of a consumer complaint. More information (such as safeshops.be or becommerce).