Lawford Kidd, Personal Injury Solicitors

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Black Friday/Cyber Monday – The Dangers of Online Impulse Buys

Now that the virtual dust has settled from Black Friday and Cyber Monday and the feelings of buyer’s remorse are beginning to take hold while our orders are steadily processed, it is perhaps prudent to examine the process of online sales and exactly what our online purchasing rights are in relation to them.

UK citizens are among the biggest online shoppers, with an estimated £810m spent online by British shoppers on Friday, according to internet retail experts IMRG. The results showed that 59.8% of all UK web traffic on Black Friday came from mobile devices such as smartphones and tablets. The figures also show that the UK experienced a record year for the two days, with online sales increasing by 91% on Black Friday and 22% on Cyber Monday compared with last year. Interestingly, IMB analytics found that over half of the UK's entire online traffic on Black Friday came from mobile devices, meaning that shoppers were committing to record amounts of sales on small, difficult to read in detail, mobile platforms.

Where did this commercial phenomenon come from?

Black Friday/Cyber Monday is a US import. Since the 2000’s it has been linked with the opening of Christmas shopping and most major retailers open very early and offer promotional sales. With large online retailers like Apple and Amazon enthusiastic to maximise these profit on a global scale these bargains were introduced within the UK. 2014 saw more UK-based retailers than ever adopted the 'Black Friday' marketing scheme in order to emulate this commercial success.
With transactions happening at such a rapid pace, both online and physically, purchases often don’t live up to expectations. This leaves the questions of buyer’s rights and the option to return faulty goods in question, particularly with £810m spent online in a 24-hour period (Black Friday).

What is a Distance Consumer Contract?

A contract between a buyer and seller when made at a distance is governed under European Union (EU) law (EU Directive (2011/83/EU)). A distance contract is any contract concluded without the people involved being physically present in a shop, such as over the phone, mail order, internet, or even the television.

The Directive specifically refers to goods that were chosen based on their descriptions and then ordered through a digital medium as the consumer has not had the opportunity to inspect there substance and therefore requires increased protection. It also covers service contracts, which are where a trader supplies or agrees to supply a service, rather than a product.

What laws protect distance selling?

In order to promote the goal of an integrated European market, the EU felt it prudent to create safeguards to make distance selling more secure and easy by removing barriers to this form of trade. October 2011 saw the enactment of EU Directive 2011/83/EU which is implemented into national law by the UK Parliament through The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

The purpose of these provisions is to provide the buyer with more information in order to put them in a more secure position when making distance purchases from vendors they cannot suitably assess the credibility of.

Buyers Rights and Obligations

The most important provision the EU Directive offers is the buyer’s window to withdraw from the sale, which has been extended from seven to fourteen days. The withdrawal from the distance contract must be by using an acceptable method, these being found in the individual terms and conditions of the seller’s website or vending method. The buyer should keep evidence of their attempt to cancel, just in case the seller does not respond in time or refutes – for example the email exchanges or written log of the phone call.

The buyer’s right to cancel the sale must be unconditional. This means that the seller cannot introduce a ‘cancellation fee’. If they cancel before the arrival of the goods, the total cost and shipping must be refunded. If the goods arrive, they can refuse to accept delivery. If the goods are lost in transit, the seller must either send new goods or offer a full refund including delivery charges.

The risk involved in transporting the goods remains on the seller, even in transit. However, if the carrier is chosen by the buyer and is not one of the seller’s typical carriers, the risk then passes to the buyer, who is liable for the damages by the carrier should they wish to return the goods.

If the buyer received goods in a damaged or unsatisfactory condition, the buyer has a claim against the seller. These damages should be documented as fully as possible and a refund sought from the seller before a claim is raised. It is also a duty of the seller to provide a way of packaging for return –but they are not obligated to do so. And if the buyer decides to return the goods, the onus is on them to package it correctly to avoid damage while in transit.

Good which are made-to-order (such as those with custom embroidery) are non-refundable. It is advisable to check before purchase whether the seller considers goods ‘made-to-order’ as it remains an area of speculation as to what does and does not fulfil this definition.

Sellers Rights and Obligations

Information that the seller is compelled to provide is:

  • a description of the goods or service, including how long any commitment will last on the part of the consumer;
  • the total price of the goods or service, or the manner in which the price will be calculated if this can’t be determined;
  • cost of delivery and details of who pays for the cost of returning items if you have a right to cancel and change your mind;
  • details of any right to cancel - the trader also needs to provide, or make available, a standard cancellation form to make cancelling easy;
  • information about the seller, including their geographical address and phone number; and
  • information on the compatibility of digital content with hardware and other software is also part of the information traders are obliged to provide.

In the context of all £555.5m spent online on Black Friday 2014 by British shoppers, failure on the part of any seller to provide any of the required information could result in cancellation rights being extended by up to a year.

Additional Elements

Cancellation Of Digital Downloads
The Consumer Contract Regulations contain specific provisions for digital downloads. The consumer is required to acknowledge that once the download starts they will lose their right to cancel. If the consumer refuses to offer this assent then they must wait until the end of the 14-day cancellation period to receive their digital download. Thus, those shoppers that purchase iTunes movies and songs should be sure that the media is what they intended to buy before they purchase.

Pre-ticked Boxes

The Regulations make it clear that a seller won’t be able to charge a consumer for an item where it was selected for them as part of that purchasing process, rather than the buyer actively choosing to add it to their ‘basket’. For example, those that splurged on a new Apple Mac during Black Friday will not have been allow to be charged for an extended warranty on the hardware as a result of a pre-ticked box. Should this be the case then the buyer is entitled to a refund.

Excessive Call Charges

Additionally, helpline call charges in excess of the basic rate for calls by existing customers to the retailer are prohibited. Therefore, if a buyer has purchased a new microwave, which is faulty, calls to make a complaint about the order, or to cancel the order, cannot be charged a premium rate on the call by retailers. If a surcharged number is made on a call about goods or services purchased, or have agreed to buy, you have the automatic legal right to claim back the surcharge from the seller.

Non-European Buyer Protection

The law on purchases out with the European Economic Area depends on what country has jurisdiction. It also differs slightly between England and Wales, Scotland, and Northern Ireland primarily through domestic statute, but the process is extremely similar.

When a buyer based in the UK wishes to file a claim against a seller outside of the EEA then Schedule 8 to the Civil Jurisdiction and Judgements Act 1982 applies. The basic rule is that claimant (the buyer) must sue in the jurisdiction of the defendant (the seller), which may prove difficult if your seller is based on another continent (a method Apple have historically used to their advantage).

The Hague Conference on Private International Law and the United Nations have made several attempts to regulate the contract of sale of goods internationally through various acts, none of which have been adopted by the UK currently. However, the purchaser’s rights vary depending on the terms and conditions of the contract.

What to do if I’m not happy with my Black Friday purchases

It is highly advisable to reread the terms of the sale you agreed to as these may have been glossed over in the frenzy to get the bargain you were looking for. The next step would be contracting the seller and expressing your desire to cancel the sale, this should be accompanied with a full refund. Should this prove ineffective, consulting a reputable legal advisor to raise an action in court for compensation could be a remedy open to exploration.

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