Does Using Another Seller's Terms and Conditions in Your Online Shop Expose You to Sanctions?

We are often approached by entrepreneurs who are starting out with a business in the form of an online shop and who instruct us to prepare the appropriate terms and conditions (regulamin) and the other documentation required by law for running such a business.

We know, however, that a great many entrepreneurs give in to the temptation to copy the terms and conditions from another shop's website. As a rule, two factors decide this: "fast" and "free". We are aware that entrepreneurs entering the market have a limited budget, but above all they must bear in mind the risks of copying someone else's terms and conditions.

Sanctions for Having No Terms and Conditions for Electronic Services

First, the law obliges an entrepreneur providing services by electronic means to have terms and conditions and to make them available free of charge to persons using such services. The terms and conditions should be made available before the service agreement is concluded and also, at the service recipient's request, in a way that makes it possible to obtain, reproduce and record their content (Article 8 of the Electronic Services Act). Failure to publish terms and conditions, as a failure to fulfil the obligation to give consumers reliable, true and complete information, is an infringement of the collective interests of consumers (Article 24(2)(2) of the Competition and Consumer Protection Act). As a result, the entrepreneur may face a sanction in the form of a financial penalty of up to 10% of the revenue earned in the financial year preceding the year in which the penalty is imposed (Article 106 of the Competition and Consumer Protection Act).

Terms and Conditions Are a Contract

Many entrepreneurs treat the need to have terms and conditions as an unpleasant formality, and focus more on the technical solutions for the website itself. However, an online shop's terms and conditions are nothing other than a contract that the entrepreneur concludes with the customer each time, and the rights and obligations they provide for, such as the complaints procedure, are binding. It is therefore worth creating, within the requirements of generally applicable law, your own rules with which those buying goods or using services will have to comply. A good example is defining the so-called moment of conclusion of the contract, meaning the point from which specific obligations arise for the parties (the seller and the customer). This moment can be defined in various ways, and it should be a decision considered by the seller operating online and reflected in the terms and conditions.

Risks of "Copying Terms and Conditions"

• Terms and conditions created for a given shop are drafted to take account of the specific character of that business and the procedures adopted in it. They are simply adapted to that business. Terms and conditions taken from someone else will not reflect the specific character of the business concerned, even where the businesses operate in a similar sector. For example, some shops direct their offer only to legal persons, while others direct it to consumers (including so-called quasi-consumers, about whom we have written in one of our blog articles), and this requires entirely different provisions. In addition, copied content may refer to legal provisions no longer in force or contain incorrect cross-references. Apart from its effect on the entrepreneur's image, this may result in an infringement of consumers' interests and may therefore give rise to the sanctions mentioned above,
• Clauses from the terms and conditions of the largest market "players" have repeatedly been challenged by the President of the Office of Competition and Consumer Protection (UOKiK) and entered in the register of prohibited clauses (Article 385¹ § 1 of the Civil Code). It must be borne in mind that the fact that terms and conditions appear on the website of a well-known shop does not guarantee that they comply with the law. Using even fragments taken from such terms and conditions may mean placing on the shop's website clauses unfavourable to consumers which, in the light of UOKiK decisions or case law, shape the service recipient's rights and obligations contrary to good practice and grossly infringe the buyer's interests. This exposes the entrepreneur to administrative or court proceedings and to the resulting sanctions and costs,
• Under generally applicable law, terms and conditions are a "work" if they show individual creative activity. Copyright infringement creates a risk of claims by the author, such as claims to cease the infringement, to remove its effects or for damages (Article 79 of the Copyright Act). Criminal liability may even be considered here under Article 116 § 1 et seq. of the Copyright Act, which provides for a fine, restriction of liberty or even imprisonment for a person who, without authorisation or contrary to its terms, disseminates another person's work in its original version or in the form of an adaptation.

This article has addressed the risk of duplicating someone else's documentation in relation to an online shop's terms and conditions. It should be remembered, however, that generally applicable law imposes a number of other documentation obligations on a seller providing services online. Here, the provisions of the Electronic Services Act, the Consumer Rights Act and data protection law (GDPR) must be borne in mind. Duplicating documentation of any type creates a risk of the liability described in this post.

Legal Basis

1. Act of 4 February 1994 on Copyright and Related Rights (consolidated text: Journal of Laws of 2021, item 1062, as amended), the "Copyright Act".
2. Act of 18 July 2002 on the Provision of Services by Electronic Means, the "Electronic Services Act" (consolidated text: Journal of Laws of 2020, item 344).
3. Act of 16 February 2007 on Competition and Consumer Protection, the "Competition and Consumer Protection Act" (consolidated text: Journal of Laws of 2021, item 275).
4. Act of 16 April 1993 on Combating Unfair Competition (consolidated text: Journal of Laws of 2020, item 1913, as amended).