ICOBS 3.1 Distance marketing
Application
1This section applies to a firm that carries on any distance marketing activity from an establishment in the United Kingdom, with or for a consumer in the United Kingdom or another EEA State.
Guidance on the Distance Marketing Directive
Guidance on expressions derived from the Distance Marketing Directive and on the Directive's application in the context of insurance distribution activity2 can be found in ICOBS 3 Annex 1 G.
The distance marketing disclosure rules
A firm must provide a consumer with the distance marketing information (ICOBS 3 Annex 2 R) in good time before conclusion of a distance contract.
[Note: article 3(1) of the Distance Marketing Directive]
The rules setting out the responsibilities of insurers and insurance intermediaries for producing and providing information apply to requirements in this section to provide information (see ICOBS 6.-1.1R2).
A firm must ensure that the distance marketing information, the commercial purpose of which must be made clear, is provided in a clear and comprehensible manner in any way appropriate to the means of distance communication used, with due regard, in particular, to the principles of good faith in commercial transactions, and the legal principles governing the protection of those who are unable to give their consent, such as minors.
[Note: article 3(2) of the Distance Marketing Directive]
When a firm makes a voice telephony communication to a consumer, it must make its identity and the purpose of its call explicitly clear at the beginning of the conversation.
[Note: article 3(3)(a) of the Distance Marketing Directive]
A firm must ensure that the information on contractual obligations to be communicated to a consumer during the pre-contractual phase is in conformity with the contractual obligations which would result from the law presumed to be applicable to the distance contract if that contract is concluded.
[Note: article 3(4) of the Distance Marketing Directive]
Terms and conditions, and form
A firm must communicate to the consumer all the contractual terms and conditions and the information referred to in the distance marketing disclosure rules in writing or another durable medium available and accessible to the consumer in good time before conclusion of any distance contract.
[Note: article 5(1) of the Distance Marketing Directive]
Commencing performance of the distance contract
The performance of the distance contract may only begin after the consumer has given his approval.
[Note: article 7(1) of the Distance Marketing Directive]
Exception: distance contract as a stage in the provision of another service
This section does not apply to a distance contract to act as insurance intermediary, if the distance contract is concluded merely as a stage in the provision of another service by the firm or another person.
[Note: recital 19 to the Distance Marketing Directive]
Exception: successive operations
In the case of a distance contract comprising an initial service agreement, followed by successive operations or a series of separate operations of the same nature performed over time, the rules in this section only apply to the initial agreement.
[Note: article 1(2) of the Distance Marketing Directive]
If there is no initial service agreement but the successive operations or separate operations of the same nature performed over time are performed between the same contractual parties, the distance marketing disclosure rules will only apply:
[Note: recital 16 and article 1(2) of the Distance Marketing Directive]
Exception: voice telephony communications
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(1)
In the case of a voice telephony communication, and subject to the explicit consent of the consumer, only the abbreviated distance marketing information (ICOBS 3 Annex 3 R) needs to be provided during that communication.
-
(2)
However, unless another exemption applies (such as the exemption for means of distance communication not enabling disclosure) a firm must still provide the distance marketing information (ICOBS 3 Annex 2 R) in writing or another durable medium available and accessible to the consumer in good time before conclusion of any distance contract.
[Note: articles 3(3)(b) and 5(1) of the Distance Marketing Directive]
Exception: Means of distance communication not enabling disclosure
A firm may provide the distance marketing information (ICOBS 3 Annex 2 R) and the contractual terms and conditions in writing or another durable medium immediately after the conclusion of a distance contract, if the contract has been concluded at a consumer's request using a means of distance communication that does not enable the provision of that information in that form in good time before conclusion of any distance contract.
[Note: article 5(2) of the Distance Marketing Directive]
Consumer's right to request paper copies and change the means of communication
At any time during the contractual relationship the consumer is entitled, at his request, to receive the contractual terms and conditions on paper. The consumer is also entitled to change the means of distance communication used unless this is incompatible with the contract concluded or the nature of the service provided.
[Note: article 5(3) of the Distance Marketing Directive]
Unsolicited services
-
(1)
A firm must not enforce, or seek to enforce, any obligations under a distance contract against a consumer, in the event of an unsolicited supply of services, the absence of reply not constituting consent.
-
(2)
This rule does not apply to the tacit renewal of a distance contract.
[Note: article 9 of the Distance Marketing Directive]
Mandatory nature of consumer's rights
If a consumer purports to waive any of the consumer's rights created or implied by the rules in this section, a firm must not accept that waiver, nor seek to rely on or enforce it against the consumer.
[Note: article 12 of the Distance Marketing Directive]
If a firm proposes to enter into a distance contract with a consumer that will be governed by the law of a country outside the EEA, the firm must ensure that the consumer will not lose the protection created by the rules in this section if the distance contract has a close link with the territory of one or more EEA States.
[Note: articles 12 and 16 of the Distance Marketing Directive]