Protection law applying to a Business

Consumers are entitled to have their rights and interests protected by law. Irish

consumer protection law, which is based on a mix of Irish and European

legislation, has evolved as a distinct area of law that concentrates on the general

protection and promotion of those rights and interests.

Consumer Protection Act 2007

The Consumer Protection Act 2007 (CPA) provides protection to the consumer

through a variety of measures; ensuring compliance with consumer legislation,

self-regulation (codes of practice) and a set of enforcement measures. The CPA

applies before, during and after a transaction has taken place.

Under the CPA it is a criminal offence for any retailer to make a false or

misleading claim about goods, services and prices. It is also an offence to sell

goods which bear a false or misleading description.

The CPA protects consumers from misleading, aggressive or prohibited

practices. In other words, when a breach of good faith occurs and the consumer

is denied the reasonable standard of skill and care which they are entitled to.

 A misleading practice involves providing false, misleading and deceptive

information. Misleading advertising, misleading information and withholding

material information are considered misleading practices.

 The CPA prohibits traders from engaging in aggressive practices such as

harassment, coercion, or exercising undue influence. Examples of harassment

are pressurising, intimidating and taking advantage of vulnerable consumers.

 The CPA lists 32 commercial practices which are prohibited in all circumstances.

Consumer Rights Directive

The Consumer Rights Directive (CRD) came into force in 2014 and provides

consumers with increased protection when they enter into on premises, off

premises (doorstep sales) and distance contracts with web traders based in

Ireland and other EU countries. Distance contracts include buying something

online, over the phone, from a mail order catalogue or from a TV shopping

channel. A range of provisions been introduced which businesses have to

comply with. These provisions include bans on hidden charges, as well as an

extended right of withdrawal period. You will also be obliged to refund consumers

more promptly.

 Extended ‘cooling off’ period

Consumers can withdraw from a distance selling contract and seek a full refund

within 14 days of the date on which they received the goods. In the case of a

contract for a service, the cooing-off period ends 14 days after the contract starts.

This has been extended from the previous seven day cooling off period. Your

business is responsible for informing the consumer of this right. The consumer is

responsible for the cost of returning the goods (as long as this cost was made
 clear to them beforehand). If you want, you can provide a sample withdrawal

form on your website, making it easier for consumers to avail of this right.

 Ban on pre-ticked boxes

Pre-ticking boxes during the booking process may cause some consumers to

inadvertently pay for extras that they do not require. Under the CRD, this practice

is prohibited. Consumers must explicitly indicate that they opt-in to any extra

costs (such as insurance or car hire).

 Ban on hidden fees and charges

You must disclose the total cost of the product or service, including any

additional fees (e.g. taxes or delivery charges), before the order is confirmed.

Consumers will not have to pay extra charges if they you do not properly inform

them of these costs in advance.

 Right to quicker refunds

Previously, online sellers were obliged to refund consumers who withdrew from a

contract within 30 days. Under the CRD, this period has been shortened to 14

days, and the refund must include the cost of delivery.

 Ban on surcharges

The CRD prohibits businesses from imposing credit or debit card charges which

exceed the actual cost borne by the provider of offering this method of payment.

If you operate a hotline, you are not allowed to charge more than the basic

telephone rate for calls.

 Clearer information on the cost of returning unwanted goods

Consumers who avail of the fourteen day cooling off period have to pay for the
 cost of returning unwanted goods. The CRD states that if you expect the

consumer to pay to return an item, you must clearly inform the consumer of this

beforehand. Otherwise, you will have to cover the cost of the consumer returning

the item. You are also obliged to provide an estimate of return costs in advance if

the item is bulky or difficult to transport, so the consumer may make an informed

choice before buying the goods.

 Protection for digital purchases

Consumers must be clearly told about the compatibility of digital content with

hardware and software. They must also be told if there are any technical

protection measures on an item, such as a limit on making copies. The right of

withdrawal applies to digital content, but only up until the actual downloading

process beginning.

For more information on your obligations under the CRD, take a look at

our guide for traders.

Ensure you are complying with consumer

protection law

 Avoid engaging in a prohibited commercial practice. Make sure that, as outlined

in the CPA, your commercial practices are not unfair, misleading, aggressive or

prohibited. Ensure that you comply with pricing and price display regulations, as

set out in the CPA.

 Avoid using unfair terms in your standard contracts. If you use standard form

contracts in your business, you need to ensure that your contract terms are fair.

According to the legislation, a standard term is unfair if it gives the trader an

unfair advantage over the consumer, or takes away the consumer’s legal rights.

The legislation, The European Communities (Unfair Terms in Consumer

Contracts) Regulations 1995, requires that standard terms are written in plain

and understandable language. It gives examples of terms that could be

considered unfair, for example terms, which provide for an automatic renewal of

a contract without the consumer’s agreement. More information on how you can

ensure your contract terms are fair can be found in the CCPC’s Guidelines here.

The guidelines will assist in explaining what an unfair term is and how your

business can ensure that your standard form consumer contracts terms are fair.

 Make sure that you comply with obligations contained in the European Union

(Consumer Information, Cancellation, and Other Rights) Regulations 2013.

These oblige you to make certain information available to consumers in advance

of them deciding to buy a good or service. These combine a transparency

requirement, where you have to provide specific information, with a ‘cooling-off’

period, where the consumer has time to consider their purchase.

 The quality of goods and services that consumers purchase are addressed by

the Sale of Goods Act 1893 and the Sale of Goods and Supply of Services Act,

1980.

 You must make sure that the goods you sell comply with the general safety

requirements, for more information see product safety

 The sanctions and penalties if you are found

to be in breach of consumer protection law

The CCPC has a range of powers to help achieve compliance with consumer

protection law. These are:

 Prosecution

 Prohibition orders

 Compliance notices

 Undertakings

 Fixed payment notices

The Small Claims procedure

 In certain instances where a consumer has purchased a product and it

develops a fault, it may be up to the business to put things right. As a

general rule, you can either repair or replace the item. Alternatively, you

can refund the costs of the item or service to the consumer. There are no

specific rules as to which remedy you should provide for the consumer;

the circumstances of the individual case must be taken into account.

 It is important to note that, if the consumer is not satisfied with your

response to their issue, they make take a claim against you using the

Small Claims Procedure.

 The Data Protection Act contains eight principles

 1. Personal data shall be processed fairly and lawfully and, in particular,

shall not be processed unless –

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in

Schedule 3 is also met.

 2. Personal data shall be obtained only for one or more specified and

lawful purposes, and shall not be further processed in any manner

incompatible with that purpose or those purposes.

 3. Personal data shall be adequate, relevant and not excessive in relation

to the purpose or purposes for which they are processed.

 4. Personal data shall be accurate and, where necessary, kept up to date.

 5. Personal data processed for any purpose or purposes shall not be kept

for longer than is necessary for that purpose or those purposes.

 6. Personal data shall be processed in accordance with the rights of data

subjects under this Act.

 7. Appropriate technical and organisational measures shall be taken

against unauthorised or unlawful processing of personal data and against

accidental loss or destruction of, or damage to, personal data.

 8. Personal data shall not be transferred to a country or territory outside

the European Economic Area unless that country or territory ensures an

adequate level of protection for the rights and freedoms of data subjects in

relation to the processing of personal data.