On 10 October 2011, the European Union (EU) tightened its
policies protecting consumer rights.
In terms of the new EU Consumer Rights Directive, consumers'
rights have been strengthened in all 27 EU countries by including a
provision banning pre-ticked boxes on websites.
The banning of pre-ticked boxes on websites provides that consumers
will no longer be forced to un-tick boxes. The consumer will now
need to be provided with an un-ticked box instead in respect of
which the consumer must tick the box to show his or her
choice.
A good example of the application of the ban on pre-ticked boxes on
websites is in purchasing an aeroplane ticket. Goods and/or
services such as travel insurance and/or car rental may be offered
in addition to the purchase of the aeroplane ticket. In future,
these additional options will no longer be allowed to be pre-ticked
and the consumer will be given the option to tick these boxes
should the additional goods and/or services be required.
The consumer is therefore given the right to opt-in to obtain the
goods and/or services that have been offered by the supplier rather
than to opt-out of the provision of those goods and/or
services.
In South African law, electronic agreements are governed by the
Electronic Communications and Transactions Act 25 of 2002 (ECTA)
and the Consumer Protection Act 68 of 2008 (CPA).
Presently the only requirement of those two pieces of legislation
is that one must have an option to choose as well as a right to
exit an electronic agreement within a cooling off period of seven
days.
Notwithstanding the lack of prohibition presently in place in
respect of the entering into web-based agreements for the purchase
of goods and services, the EU requirement must remain a
consideration in light of the regime of consumer protection flowing
from implementation of the CPA in April 2011.
Pre-ticked boxes may be seen to be deceptive and misleading to a
consumer and may be seen as influencing consumer choice and
behaviour.
By allowing pre-ticked boxes, the onus falls on the consumer to
un-tick those boxes providing for the additional goods and/or
services that it does not require from the supplier.
Any person operating a web-based business should consider the
clarity of instruction preceding pre-ticked boxes to ensure the
attention of the consumer is brought thereto and going forward
should bear in mind the EU prohibition as the beginning of a trend
in the interests of the average consumer who does not enter into
these agreements on a daily basis.
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