Selling to consumers online? Check your final "order" button text is compliant, or risk a voidable contract

Screenshot of an html button saying "Order with obligation to pay" in black text on grey background

If you are selling online to consumers, you are required to ensure that the final "order" button, which the consumer presses to place an order, makes it sufficiently clear that the consumer is placing an order with an obligation to pay.

Case law suggests that, while you can deviate from the statutory example, the threshold for demonstrating that your own choice of words is equivalent, and thus compliant, is a high one.

What the law says

Regulation 14 of the snappily-named The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 says:

If placing an order entails activating a button or a similar function, the trader must ensure that the button or similar function is labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader.

What this means in practice

If you have a button to place an order, that button text:

  • must be "easily legible" - so be careful with font face and size choices - and
  • must only say:
    • "order with obligation to pay"; or
    • something similar of your own creation, which is indicates unambiguously that placing the order entails an obligation to pay you.

"Order with obligation to pay"

The safer route is to go with the statutory language: "order with obligation to pay". If you do this, there is no scope to argue that your button text does not meet the requisite standard.

Of course, it's quite long for button text, and may seem unnecessarily formal, even scary.

Your own choice of words

If you choose your own wording, you need to be confident that your chosen text is a "corresponding" form of words (i.e. that it has the same outcome), that it is "unambiguous" and so on.

According to the European Court of Justice, the test for this is whether your chosen words are:

both in everyday language and in the mind of the average consumer who is reasonably well informed, and reasonably observant and circumspect, necessarily and systematically associated with the creation of an obligation to pay.

When assessing whether a button bearing different wording is compliant or not, the court can take into account only the words that appear on the button. Wider information, or the context of the purchase, or the user journey, are not relevant to this assessment.

The wording at issue in the case was "Complete booking". The ECJ did not say whether that wording was fine or not - that's a matter for the local courts (in this case, in Germany) - but it seems to me that there's scope for arguing whether those words are "necessarily and systematically associated with the creation of an obligation to pay".

What if I don't get this right?

If you do not do this, the consumer is not bound by the contract or order. This means that they can say, without any other reason, that the contract never existed, and so you'd need to give them a refund, and they'd need to return what they purchased.

This could be particularly problematic if the order was a "custom" order, where you created something bespoke for that customer.

Other things to be aware of

There's more to selling online than just getting your button text right. Depending on what you do, you might also need to consider:

  • the information you must provide to consumers (including under the distance selling rules, data protection law, company law, and eCommerce law).

  • data protection.

  • electronic marketing rules.

  • the terms of your contract, to protect your position while ensuring it complies with consumer law.

  • cancellation and refund policies and procedures.

  • sector-specific requirements, such as Ofcom's General Conditions of Entitlement if you are selling regulated communications services.

Need a hand? Or a review of what you've got already? Get in touch!