Find out the clarification of the meaning of ‘durable medium’ as well as explaining its origin and intention. This will help firms to understand their obligations when using non-paper methods of communication.
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Background to ‘durable medium’
Various EU regulatory provisions require that a firm must provide certain information to a client in writing, either on paper or in another durable medium. Some provisions also permit the use of websites which are not durable media but meet certain conditions. The term durable medium is defined in the Handbook glossary to implement the requirements of EU legislation. Our Smarter Consumer Communications Discussion Paper (DP15/5[1]) prompted feedback from firms on what could meet the definition of durable medium, and the lack of clarity on whether firms can use new innovative media such as videos and other technologies to provide important information, including regulatory disclosure. They also stated that the Handbook rules and definitions on durable media are now out of date and do not reflect the current online environment.
It is essential that firms understand what their obligations are when using non-paper methods of communication and how they might meet them. This is particularly important given the growing use of non-paper based formats of disclosure.
In addition to providing the information provided on this website, we are proposing to update our Handbook definition of durable medium by removing references to outdated media, as consulted on in CP17/7[2].
Choice of durable medium
Origin and interpretation of the term
The concept of durable medium was first introduced in the EU by the Distance Selling Directive 97/7/EC[3] as an alternative to paper as the support or medium for information.
Article 5, Written confirmation of information states:
"The consumer must receive written confirmation or confirmation in another durable medium available and accessible to him of the information referred to in Article 4(1)(a) to (f), in good time during the performance of the contract, and at the latest at the time of delivery where goods not for delivery to third parties are concerned, unless the information has already been given to the consumer prior to conclusion of the contract in writing or on another durable medium available and accessible to him."
That Directive did not contain a definition of durable medium. However, the term was later defined in other pieces of EU law.
The introduction of the concept of durable medium indicated the will of EU regulators to reconcile the tension between the need to adjust to the evolution of technology and the protection of consumer rights through the provision of consumer information.
By equating paper with other durable media, EU law acknowledges technological developments and the interests of both customers and service providers to have the ability to move away from paper. The components of the definition of durable medium - storability and unchanged reproduction - aim to protect consumers.
This is achieved by preventing information from being given to consumers in a short lived format and by preventing service providers from unilaterally modifying the information. In other words, information should be placed under the customer’s control, and no longer under the control of the person giving it.
The Handbook glossary definition of durable medium specifically uses the wording common to the definitions in the various pieces of EU legislation:
"any instrument which enables the recipient to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored."
EU case law on durable medium
A number of EU cases have considered the proper interpretation of the term durable medium, including Content Services (C-49/11)[4] and Inconsult Anstalt (E-04/09 – from the EFTA court)[5]. These are reviewed in the Opinion of Advocate General Bobek in the BAWAG case, C-375/15[6].
Firms may wish to consider these cases to decide whether a particular system or technology might meet the criteria to be a durable medium. Factors drawn from the cases which may help firms include:
- A principle factor underlying the notion of a durable medium is to enhance consumer protection (paragraph 61, Inconsult).
- In the context of new technologies, a substitute for paper form may be regarded as meeting the requirements of consumer protection so long as it fulfils the same functions as paper form (paragraph 41, Content Services).
- The instrument must allow the recipient to store the information. The information, when stored, must be accessible for as long as it is relevant to the recipient in order to protect his or her interests stemming from their relationship with the provider of the information (paragraph 44, Inconsult).
- There may be several technical methods available for guaranteeing unchanged reproduction. It is for the firm in each case to ensure that the method of electronic communication employed permits this kind of reproduction (paragraph 62, Inconsult).