General terms and conditions in the digital age

Our lives are increasingly taking place in the digital world. Social contacts take place via social media, e-mail and Whatsapp, and we no longer have to leave the house to do our shopping. We order all our daily necessities from the comfort of our armchair.

Confidence in this way of shopping is growing, not least because more and more web shops are expressing that confidence. Since the new e-commerce rules went into effect in mid-2015, many web shops have already been adapted. Order processes are clearer and information about the provider is easier to find. However, the required information about the consumer's right to change his or her mind is still often missing, and general terms and conditions are also far from always handled correctly.

Although it is a matter of setting up the web shop properly once, things still regularly go wrong here, preventing important ground rules for purchasing products.

In order for general terms and conditions to be invoked, they must be declared applicable before or, at the latest, when the order is finally placed. It must be clear to the buyer that the terms and conditions are part of the contract. Thus, this statement must be clear and included in the ordering process. Although the buyer does not have to explicitly agree, it is preferable to have the buyer check a box just before the final order is placed that explicitly reminds the buyer of the terms and conditions.

However, mere notice that the general terms and conditions apply is not sufficient. A reasonable opportunity to take note of the terms and conditions must also be provided. In principle, this means that the terms and conditions must be made available electronically in such a way that the buyer can save them. In concrete terms, this means that the terms and conditions must appear on the screen directly (via a clearly recognizable hyperlink). It must then be possible to download the terms and conditions and store them digitally in a convenient way.

This is where things often go wrong in practice. Many web shops do offer the option to read and scroll through the terms and conditions, but do not include the option to save them other than by cutting and pasting them yourself. Other web shops only offer the ability to print the terms and conditions. Although the printed terms and conditions can be physically stored, this does not meet the requirements. The buyer must be able to store the terms and conditions digitally.

Only if it is not reasonably possible to make the conditions available electronically, in such a way that they can be stored, may it suffice to state where the conditions can be consulted electronically and that they will be sent upon request. However, this exception is generally not readily adopted.

This page was last updated on August 16, 2023.