Rules on notice of changes to terms of service: EU, UK and how old terms are proved

EU: the platform to business rule

Regulation (EU) 2019/1150 of 20 June 2019 covers providers of online intermediation services and their business users ¹. It applies from 12 July 2020 ¹.

Article 3(2) says providers must notify business users of any proposed changes to their terms and conditions on a durable medium ¹. The notice period must be at least 15 days from notification, and longer where business users need more time to adapt ¹. A business user may end the contract before the notice period expires, with effect within 15 days of receiving the notice ¹.

Under Article 3(3), changes made in breach of this rule are null and void ¹.

• Exception one: the provider is under a legal or regulatory obligation that requires a change and does not allow the notice period to be respected ¹.
• Exception two: the provider must change its terms to address an unforeseen and imminent danger, such as fraud, malware, spam, data breaches or other cybersecurity risks ¹.

UK: consumer contracts and unilateral changes

Schedule 2 of the Consumer Rights Act 2015 lists consumer contract terms which may be regarded as unfair ². The schedule's own heading describes these as terms which may be regarded as unfair, not terms that are always unfair ².

UK carve-outs: financial services and open-ended contracts

Part 2 of Schedule 2 narrows paragraph 11 in two cases ². A supplier of financial services may reserve the right to change an interest rate for a valid reason if it informs the consumer at the earliest opportunity and the consumer is free to dissolve the contract immediately ².

For a contract of indeterminate duration, a trader may reserve the right to alter the conditions if it gives the consumer reasonable notice and the consumer is free to dissolve the contract ².

EU penalties for unfair terms

Directive (EU) 2019/2161 added penalty rules to the EU Unfair Contract Terms Directive, 93/13/EEC ³. For widespread infringements, the maximum fine must be at least 4% of the seller's or supplier's annual turnover in the Member States concerned ³. Where turnover data is not available, the maximum must be at least EUR 2 million ³.

Proving which terms applied on a date

Disputes over changed terms often turn on what the terms said on a given day. In Weinhoffer v. Davie Shoring, a party relied on auction terms preserved on an archived webpage ⁴. The Fifth Circuit held on 20 January 2022 that the trial court erred in taking judicial notice of those terms, as a private internet archive falls short of a source whose accuracy cannot reasonably be questioned ⁴.

Archived captures can still be admitted with proper authentication. In United States v. Gasperini, the Second Circuit accepted Wayback screenshots after an Internet Archive witness explained how they were made ⁵.

A user who wants a dated copy of a terms page can use the Wayback Machine's Save Page Now feature, which saves a specific page one time ⁶. The Internet Archive says some pages are not captured, such as those behind a password or blocked by robots exclusions ⁶.