3 legal errors online store
As a result of using the standard set of documents "like everyone else", legal errors are also copied. A review of standard documents on online shopping sites shows that their owners often do not think about the function that such documents can and should fulfill.
We analyzed the practice of bringing online stores accountable for violations of the law and identified 3 major errors that are not difficult to eliminate if there is a desire. So, what threatens the use of solutions that are integrated into the online store website template and how to deal with it, see below.
When placing an order in the online store, the buyer fills out a form, which may include the last name, first name, patronymic, address, telephone number and other information that relates to personal data on the basis of the Federal Law “On Personal Data”.
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Therefore, the owner of the online store is recognized by the operator for the processing of personal data and must strictly comply with the requirements of this law.
In particular, the operator is obliged to publish or otherwise provide unrestricted access to the document defining its policy regarding the processing of personal data, to the information about the realizable requirements for the protection of personal data (part 2 of Article 18.1 of the Federal Law on Personal Data).
Violation of this requirement entails administrative liability under Article 13.11 of the Administrative Code of the Russian Federation in the form of a fine in the amount of: for officials - from five hundred to one thousand rubles; for legal entities - from five thousand to ten thousand rubles.
Here is a typical ruling of the magistrate on bringing to administrative responsibility. In exceptional cases, taking into account the circumstances of the case and the identity of the offender, the court, when determining the administrative penalty, may limit itself to a warning.
To eliminate liability, it is sufficient to place on the site a Privacy Policy , which clearly in accordance with the requirements of current legislation defines the procedure for processing personal data of users of the online store and the measures taken to ensure their confidentiality.
On the conditions for the use of personal data, the user must be explicitly acquainted before they are processed. The user's consent to the processing of personal data should be specific, informed and conscious. Therefore, the link to the Privacy Policy is placed in the Public Offer of the Online Store , which the user becomes acquainted with when registering on the Online Store website.
However, when inspecting an online store site by a supervisory authority or a notary, registration is usually not carried out. The protocol only records the process of placing an order through a special form, with the use of which personal data are provided.
Therefore, it is advisable, before sending the payment order, to suggest the user to reconfirm his consent with the Online Store Offer, which includes a link to the Privacy Policy.
In addition, it should be possible to freely access the Privacy Policy from any section of the online store by placing a direct link in the basement of the site.
Based on the Consumer Rights Protection Law and the Rules for the sale of goods by remote means, the seller is obliged to provide the buyer with complete, reliable and accessible information, including:
- characteristics (basic consumer properties) of the product;
- full company name of the seller (with an indication of the legal form);
- address (location) of the seller,
- place of manufacture of goods,
- the price, the order of payment for goods and other conditions for the purchase of goods
- information about its delivery,
- information about the service life, shelf life and warranty period,
- information on the period during which the proposal to conclude a contract is valid);
- information whether the product was in use or previously repaired.
For violation of the rules for the sale of certain goods, administrative liability is provided in the form of a fine under Article 14.15 of the Administrative Code of the Russian Federation for officials - from one thousand to three thousand rubles; for legal entities - from ten thousand to thirty thousand rubles
The owner of the online store cannot be penalized for not providing the above information if he is not the seller of the goods. This must be notified to the buyer before purchasing the goods.
Typically, such a notice is placed in the text of the Offer, with which the buyer becomes acquainted when registering on the website of the online store. See, for example, the Decree of the Tenth Arbitration Court of Appeal in case No. A41-6880 / 14.
If there is no direct indication in the Offer that the owner of the online store is not a seller of the goods, it will actually be impossible to prove the opposite, since for the execution of the contract of sale, any person could be brought in and this does not change the obligations of the owner of the Internet resource to the buyer.
This error is allowed when selling goods through the online store by various suppliers (Internet exchange, online auction, etc.).
On the basis of Article 8 of the Federal Law “On Advertising”, in advertising goods with a remote method of selling them, information about the seller of such goods should be indicated:
1) for organizations - the name, location and state registration number of the record on the creation of a legal entity;
2) for individual entrepreneurs - last name, first name, middle name, main state registration number of the record on state registration of an individual as an individual entrepreneur.
The absence of such information entails administrative responsibility under Article 14.3 of the Administrative Code of the Russian Federation in the form of imposing a fine on officials - from four thousand to twenty thousand rubles; on legal entities - from one hundred thousand to five hundred thousand rubles.
As an example from practice we refer to the Prescription of the FAS of the Omsk Region.
It is necessary to pay attention that information on the goods sold is not advertising, placed on the official website of the seller of these goods, if the specified information is intended to inform visitors of the website about the range of goods, conditions of their acquisition, prices and discounts, terms of use, is also not advertising information about the company's business, promotions and events held by this company, etc., therefore, the Federal Law “On Advertising” does not cover such information are spread.
Therefore, online stores that sell products on their website themselves do not violate the requirements of the Federal Law "On Advertising".
Pay attention to the documentation for the site. It will help you avoid unnecessary problems with users and regulatory authorities.
We analyzed the practice of bringing online stores accountable for violations of the law and identified 3 major errors that are not difficult to eliminate if there is a desire. So, what threatens the use of solutions that are integrated into the online store website template and how to deal with it, see below.
1. Absence of Privacy Policy on the site.
When placing an order in the online store, the buyer fills out a form, which may include the last name, first name, patronymic, address, telephone number and other information that relates to personal data on the basis of the Federal Law “On Personal Data”.
')
Therefore, the owner of the online store is recognized by the operator for the processing of personal data and must strictly comply with the requirements of this law.
In particular, the operator is obliged to publish or otherwise provide unrestricted access to the document defining its policy regarding the processing of personal data, to the information about the realizable requirements for the protection of personal data (part 2 of Article 18.1 of the Federal Law on Personal Data).
Violation of this requirement entails administrative liability under Article 13.11 of the Administrative Code of the Russian Federation in the form of a fine in the amount of: for officials - from five hundred to one thousand rubles; for legal entities - from five thousand to ten thousand rubles.
Here is a typical ruling of the magistrate on bringing to administrative responsibility. In exceptional cases, taking into account the circumstances of the case and the identity of the offender, the court, when determining the administrative penalty, may limit itself to a warning.
To eliminate liability, it is sufficient to place on the site a Privacy Policy , which clearly in accordance with the requirements of current legislation defines the procedure for processing personal data of users of the online store and the measures taken to ensure their confidentiality.
On the conditions for the use of personal data, the user must be explicitly acquainted before they are processed. The user's consent to the processing of personal data should be specific, informed and conscious. Therefore, the link to the Privacy Policy is placed in the Public Offer of the Online Store , which the user becomes acquainted with when registering on the Online Store website.
However, when inspecting an online store site by a supervisory authority or a notary, registration is usually not carried out. The protocol only records the process of placing an order through a special form, with the use of which personal data are provided.
Therefore, it is advisable, before sending the payment order, to suggest the user to reconfirm his consent with the Online Store Offer, which includes a link to the Privacy Policy.
In addition, it should be possible to freely access the Privacy Policy from any section of the online store by placing a direct link in the basement of the site.
2. The absence in the offer of complete information about the product and seller
Based on the Consumer Rights Protection Law and the Rules for the sale of goods by remote means, the seller is obliged to provide the buyer with complete, reliable and accessible information, including:
- characteristics (basic consumer properties) of the product;
- full company name of the seller (with an indication of the legal form);
- address (location) of the seller,
- place of manufacture of goods,
- the price, the order of payment for goods and other conditions for the purchase of goods
- information about its delivery,
- information about the service life, shelf life and warranty period,
- information on the period during which the proposal to conclude a contract is valid);
- information whether the product was in use or previously repaired.
For violation of the rules for the sale of certain goods, administrative liability is provided in the form of a fine under Article 14.15 of the Administrative Code of the Russian Federation for officials - from one thousand to three thousand rubles; for legal entities - from ten thousand to thirty thousand rubles
The owner of the online store cannot be penalized for not providing the above information if he is not the seller of the goods. This must be notified to the buyer before purchasing the goods.
Typically, such a notice is placed in the text of the Offer, with which the buyer becomes acquainted when registering on the website of the online store. See, for example, the Decree of the Tenth Arbitration Court of Appeal in case No. A41-6880 / 14.
If there is no direct indication in the Offer that the owner of the online store is not a seller of the goods, it will actually be impossible to prove the opposite, since for the execution of the contract of sale, any person could be brought in and this does not change the obligations of the owner of the Internet resource to the buyer.
3. The absence of the necessary information about the advertiser on the site
This error is allowed when selling goods through the online store by various suppliers (Internet exchange, online auction, etc.).
On the basis of Article 8 of the Federal Law “On Advertising”, in advertising goods with a remote method of selling them, information about the seller of such goods should be indicated:
1) for organizations - the name, location and state registration number of the record on the creation of a legal entity;
2) for individual entrepreneurs - last name, first name, middle name, main state registration number of the record on state registration of an individual as an individual entrepreneur.
The absence of such information entails administrative responsibility under Article 14.3 of the Administrative Code of the Russian Federation in the form of imposing a fine on officials - from four thousand to twenty thousand rubles; on legal entities - from one hundred thousand to five hundred thousand rubles.
As an example from practice we refer to the Prescription of the FAS of the Omsk Region.
It is necessary to pay attention that information on the goods sold is not advertising, placed on the official website of the seller of these goods, if the specified information is intended to inform visitors of the website about the range of goods, conditions of their acquisition, prices and discounts, terms of use, is also not advertising information about the company's business, promotions and events held by this company, etc., therefore, the Federal Law “On Advertising” does not cover such information are spread.
Therefore, online stores that sell products on their website themselves do not violate the requirements of the Federal Law "On Advertising".
Pay attention to the documentation for the site. It will help you avoid unnecessary problems with users and regulatory authorities.
Source: https://habr.com/ru/post/293016/
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