If a contractual document is signed, under English law, then it is being construed, in dearth of any misrepresentation, fraud or a claim of non est factum, the signatory is obligated by its terms and it is immaterial whether the party has any knowledge about them or read them. This has been held in L’Estrange v F Graucob . In e-commerce, though e-signature has been used majority of countries, initially, in UK, there is opposition for the use of digital signatures in some corners. (Davies 2005:153).
However, UK business is vehemently arguing that any move to restrict the use digital signatures for online commerce in UK would impair the development of e-commerce in UK as advanced e-signatures have larger cost benefits encompassed with them. Hence, UK government has asked the Law Commission to make a study about the digital signatures and UK Law Commission recommended in its report that digital signatures, typing one’s name and then clicking on a web site can be construed as e-signatures or acceptance of e-contract terms.
Finally, UK government had come to conclusion that in the background of the Law Commission’s report, that no additional action was essential to offer legal status to e-signatures in UK. (Mark 2003: 4-117). The issue relates to jurisdiction is always a ticklish issue as regards to e-commerce business. In Kalman v PCL Packaging (UK) , there was an offer for transfer of title in the US soil to a UK company. It was held by the court that the US defendant had not tendered his offer which pertained to the disposal in the UK of the said infringed products.
Defendant did not prove that whether the offer was made in the US itself but communication was made by telex to the UK and this could be construed as an offer which was made ‘within the jurisdiction of UK. ” It is to be noted that there is yet to be any case law on whether any offer tendered on a foreign soil based website which is accessed in UK through internet is an offer within the UK jurisdiction. (Graham et al 2007:139).
Failure to offer some vital information under the Distance Selling Regulation of UK may end in awarding of damages to the consumer or a ‘stop now’ order will be issued by the law enforcement authority. Further, under Distance Selling Regulation, one week cooling off period for customers who procure through online is offered. The buyer has the right to cancel the purchases made within the fourteen days of the order made through online under the Financial services (Distance Marketing) Regulations of 2004.
The e-commerce regulation also permits the buyer the privilege to cancel the order or rescind the purchase contract and there is limitation on period to exercise this option under the Direct Selling Regulations. If the goods are rejected by the customer due to quality or other reasons, then he may claim the right to refund of cost of such products from the seller. For fraudulent purchase transactions made through online, the consumer has the right to chargeback the amount paid through his credit card.
Likewise, it is impossible for a retailer to contract out the conditions of the Distance Selling Regulations and in case, any supply is made to any consumer who is a UK resident through online, the seller is subject to the conditions of the E-commerce regulations. For instance, an American website which is not needed to honour analogues regulations in America will in reality be subject to these regulations in UK if it has sold any product to an UK resident through online. (Amanda et al 2008:109).
One of the disadvantages of E-Commerce Regulation 2002 is that the service provider cannot be prosecuted in UK if he merely caches (thus offering temporary automatic storage for onward communication) or hosts ( offer server facility to a website) illegal information , such service provider cannot be implicated for damages in some scenarios. To avail this exception, the service provider has to demonstrate that he has acted efficiently to do away with the information as soon as he had awareness or knowledge of the illegal nature of the information.
Thus, Distance Selling Regulations in UK have the following salient characteristics: ? This regulation is applicable to all website sales with UK consumers. ? Prior to sales contract, all vital information have to be given. ? If customer prefers for further information, an online service provider has to offer the same. ? As regards to substitution, strict provision will be governing. ? A consumer has the right to rescind or cancel the online purchases made and is entitled to receive refund and charges incurred for such cancelled transactions.
? Chargeback can be made for any returns under some scenarios. ? For performance, some timescales have been prescribed. ? To safeguard the online consumers, some additional protection mechanism has been prescribed now. ? Contracting out is made impossible citing the reason the country of origin if sale is made to an UK consumer. ? Under “Consumer Protection (Distance Selling) (Amendment) Regulations 2005,” there are some restrictions have been provided as regards to right to cancel and cooling off. (Amanda 2008:111). Conclusion
Realising the significance of e-commerce, UK government has strengthened its e-commerce law in tune with EU directions. Thus by introducing the electronic Commerce (EC Directive) Regulations 2002 which came in to effect in UK with effect from 21st August 2002, UK e-commerce law have been further strengthened and more vigour has been added. It is to be noted that the above directive was implemented to harmonise and demonstrate the rules governing of on-line business in UK with the sole objective of educating and increasing confidence of consumers.