The Swedish Consumer Agency, the supervisory authority in Sweden for compliance with consumer law, is placing significant emphasis on enhancing customer service provided by traders to consumers. Consequently, the supervisory authority has conducted investigations into 100 trader websites and the contact information they present. Initially, the scope of these investigations was unclear, but the Swedish Consumer Agency’s focus has solely been on traders selling products to consumers online.
In June 2023, the Swedish Consumer Agency published data on complaints from consumers between 1 January 2021 and 31 December 2022. About 30 percent of the complaints focused on customer service issues, with the most common concerns being: Insufficient customer service, trader mandated contact methods, and difficulties in keeping evidence of correspondence.
Consequently, the supervisory authority launched the investigation of trader websites and announced its findings on 9 October 2023. The investigation focused on the following:
Prior to and during this investigation, the Swedish Consumer Agency claims that: Traders must provide their telephone number and e-mail address on their website, that this information must be provided under a distinct heading (e.g., under a “Contact us” heading), and that consumers must be informed of their right to complain. Notably, the placement of information regarding consumers right to complain is not specified by the supervisory authority.
Regarding chat functions and/or contact forms, the Swedish Consumer Agency claims that traders must inform consumers whether and how the consumers can save their correspondence.
Swedish consumer law does not contain an explicit obligation for traders to provide customer service. This is instead provided indirectly by other requirements imposed on the trader as well as rights granted to the consumer. We will introduce two legislative acts and three directives, investigating the requirements they place on traders, and analyse the Swedish Consumer Agency’s claims.
Firstly, when purchasing goods online, the Swedish Distance and Off-Premises Contracts Act applies. This act implements the Consumer Rights Directive (EU) 2019/2161 and provides an extensive list of pre-contractual information which the trader must communicate to the consumer. This includes an obligation to inform the consumer about the trader’s telephone number, e-mail address and other online communication means provided by the trader as well as the consumers right to complain. The pre-contractual information must be presented to the consumer in a readable and permanent form. “Permanent form” could for instance be fulfilled by providing information in an e-mail sent to the consumer.
As you may notice, the pre-contractual information must not be provided on the website. On the contrary, providing the information on the website alone may not meet the requirement of permanence, as information on a website may be amended.
Secondly, the Swedish E-Commerce Act. which implements the EU E-Commerce Directive 2000/31/EC, applies to service providers of information society services. Under this act, service providers must provide their e-mail address to the recipient of the service. In line with the Swedish Distance and Off-Premises Contracts Act, the Swedish E-Commerce Act states that the information must be provided in a clear, direct and permanent manner. However, whether this entails a requirement to provide the information on the website is not explicitly stated.
There is no explicit requirement to provide information on the website but rather, it must be provided in a clear, direct and permanent manner. This faces the same issue as in the previous act, as information on a website may not be considered permanent.
Thirdly, the claim that traders must inform consumers on how they may save correspondence of an online communication method other than e-mail, such as chat functions and contact forms, comes from the EU Consumer Rights Directive (EU) 2019/2161. The EU Consumer Rights Directive states that traders using such contact methods must inform the consumer on how they may save the written communication, including the date and time of the correspondence.
Once again, we encounter a situation where the form for providing the required information is not regulated – instead the consistent omission instead appears to leave it to courts, traders, and agencies to decide.
When confronted with the inconsistencies between the Swedish Consumer Agency’s claims on required information and where to provide such information, the supervisory authority referred to case C-536/20 Tiketa, where the Court of Justice of the European Union (CJEU) stated that it should not be considered excluded that the pre-contractual information of Article 6.1 of the Consumer Rights Directive (EU) 2019/2161 can be provided in the contractual terms. The case law seems instead to reinforce the idea that contact information in the form of a telephone number does not have to be provided on a website.
The Swedish Consumer Agency also refers to decision (Dnr 2011/1626) where the Swedish Consumer Ombudsman ordered a trader to provide information on its e-mail address and postal address in a way that makes it easy for consumers to find the information. In the same decision the Consumer Ombudsman provided that such contact information should be placed where such information is usually placed on a website. Notably, telephone numbers are not addressed in this decision.
As a final note, the Swedish Consumer Agency also referenced ethical guidelines by a branch organisation for customer service and sales via telephone and digital channels: Kontakta. The ethical guidelines specify that traders should provide customer service in accordance with what has been agreed upon with the customer prior to entering into an agreement. This is best practice in the field however, the Swedish Consumer Agency claims that this – together with the obligation to provide telephone numbers prior to entering into a contract – means that customer service must be provided through telephone.
Kontakta has paid close attention to the Swedish Consumer Agency’s investigation and the apparent inconsistency with legal obligations and the Swedish Consumer Agency’s claims. In particular as the claims may have their origin in Kontakta’s ethical guidelines.
Swedish consumer law does not expressly provide that traders selling products online must provide: information of their telephone number, e-mail address, the consumers possibility to retain correspondence from online contact methods other than e-mail, as well as the right to complaint directly on its website. However, given the results of the investigation, we considered it to be best practice at the time.
It is interesting that the Swedish Consumer Agency would conduct an investigation on claims that stem from best practice, as in the absence of case law from the Swedish courts the situation is not entirely clear. This should instead be seen as an attempt from the Swedish Consumer Agency to establish its position and claims as new case law, solidifying “best practice” into a requirement.
The investigation found that 45 out of 100 trader websites did not meet the requirements claimed by the Swedish Consumer Agency. As an initial step, the supervisory authority has informed the traders of their potential breach and expect corrective measures to be taken. While legal action is unlikely for traders who take corrective measures, there is still a possibility that the Swedish Consumer Agency will pursue legal action if a trader is particularly slow or unwilling to cooperate.
We expect the Swedish Consumer Agency to issue recommendations following the investigation, in order to further cement the requirement of providing telephone numbers on a trader’s website in order for consumers to reach the trader.
However, until the question has been definitively tried in court, we recommend traders selling products online to review what information is provided on the websites and how it is displayed. Is it clear? Easily noticed? If you are uncertain, it is better to err on the side of caution to avoid scrutiny or involve local counsel given the attention this topic is currently receiving.