The modalities of adherence to unfair terms in B2B online contracts
The conclusion of online contracts implies, according to what happens in practice, that the contractual regulation is delegated to general terms and conditions unilaterally prepared by the online service provider or seller of goods. This mode of regulation determines, in the legal sphere, the need to shift the analysis from the way in which the contract can be considered validly concluded online, to the way in which not only the general terms and conditions of the contract as a whole are enforceable against the online customer, but more specifically those among the general terms and conditions that are such as to determine a significant imbalance of rights and obligations for that customer. This is the well-known issue of the so-called “vexatious” clauses, a term expressly used by the discipline of consumer contracts in general, as set forth in Articles 33-38 of Legislative Decree 206/2005 adopted in implementation of Directive 1993/13/EEC, but which in practice, even if not in the letter of the law, had long since been affirmed to refer to the homologous discipline dictated by Article 1341, para. 2, of the Civil Code with regard to the discipline of contracts under common law.
The discipline of Art. 1341 of the Civil Code finds full application in the context of the conclusion of onlinecontracts governed by general terms and conditions prepared by the online provider with respect to relations between professionals (B2B). In this regard, if the actual knowability of the general terms and conditions is a requirement to be complied with also in B2B relationships, just as it is in B2C relationships, in contracts between professionals the substantive assessment of the content of the individual clauses and their concrete negotiation loses relevance as a factor for the legitimation of vexatious clauses, to assume an exclusive one: the circumstance that the online customer has specifically approved in writing those clauses that are vexatious, insofar as they fall within the list referred to in para. 2 of Art. 1341 of the Civil Code.
In the case of paper contracts the requirement of specific approval in writing is deemed to be satisfied by a second specific signature for acceptance by the weaker party, referring exclusively to the list of unfair terms set out separately at the bottom of the set of terms. With regard to contracts concluded online, the question has been raised as to whether it is sufficient for the customer to check the boxes for express acceptance of the unfair terms, i.e. the point-click referring only to the latter, or whether a strong mode of acceptance, in the form of a qualified or at least an advanced electronic signature, excluding simple electronic signatures, is not necessary.
As for the qualified electronic signature (FEQ or simply digital signature), it is a sophisticated and in any case more complex instrument, which presupposes the necessary intervention in the signature creation process of a third party authorised to certify the identity of the signatory and to issue the electronic signature certificate, as well as the use of ad hoc signature tools, suitable for generating valid electronic signature certificates, such as tokens or smart cards to be inserted by means of a USB stick or special reader in the computer, or remote signature systems that do not use physical devices, but are connected to smart cards or tokens contained in a special signature application.
Advanced electronic signature (FEA), unlike FEQ, does not presuppose the use of a token or smart-card device, nor the intervention of a third party, but nevertheless it too is not readily realised. FEA consists of tools such as the graphometric signature (obtained by signing by hand on a tablet with a special stylus), or the generation by the user who wishes to use it of acceptance tools by means of temporary unique codes (OTP) sent by SMS or push notifications on an application.
Alongside these two types of electronic signature, the law recognises a third one, the simple electronic signature, which consists of any form of logical association between data expressed in electronic form. In the context of online platforms, the typical form of simple electronic signature is that which is obtained by authenticating the user by means of username and password and the subsequent ticking (point-click) of the appropriate acceptance box, preconfigured on the virtual contract form. Other forms of simple electronic signature can also be the name written at the bottom of an e-mail message with the origin of the e-mail attributable to the sender/signatory of the contract, or the acceptance, again by ticking the virtual box, made by a so-called ‘guest‘ user, i.e. a user operating without having previously created a personal account.
The EU Regulation 910/2014 – known as the eIDAS Regulation – expressly states in Art. 25, para. 1 that a simple electronic signature cannot be denied legal effect merely because of its electronic form or because it does not meet the requirements for qualified or advanced electronic signatures. In this sense, the Digital Administration Code (Legislative Decree 82/2005) in Art. 20, para. 1 bis, therefore leaves it to the free appreciation of the judge to recognise the effectiveness of the electronic signature, taking into account the objective characteristics of security, integrity and immodifiability.
In this regard, in Italy, after stricter stances of the jurisprudence, which subordinated the valid signing of vexatious clauses to their acceptance by means of a digital signature, were followed by more liberal ones, which deemed sufficient any form of electronic manifestation of consent, provided that it can be traced back to the paradigm of the simple electronic signature, this orientation seems to have prevailed at present. In particular, it has been argued that requiring a digital signature for the acceptance of vexatious clauses would end up jurisprudentially transforming all telematic contracts into binding form contracts, requiring the use of a sophisticated instrument for their stipulation, which is still not massively widespread among the public, and thus effectively paralysing the development of e-commerce at national level.
On the other hand, it has been observed that the requirement of a digital signature for the valid adherence to the unfair terms of the weaker contracting party would risk violating the principle of non-disparity of treatment between paper contracts and online contracts provided for by Article 9 of Directive 2000/31/EC, imposing an excessive burden on parties wishing to conclude online contracts.
I certainly endorse this approach, because it is more in keeping with the necessary agility of trade, which, moreover, is supported by the current legal framework. Consider in this regard that an indirect confirmation of the valid applicability of the point-click is to be found in Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, known as the E-Privacy Directive, which states in Recital No. 17 that ‘Consent may be given in any appropriate manner which enables the user to express freely and knowingly his specific wishes, including by ticking a specific box in the case of an Internet site‘. Moreover, since, as mentioned above, the point-click as a means of expressing contractual consent qualifies as a simple electronic signature, making its validity conditional on FEA or FEQ would end up violating the principle of equivalence of electronic signatures, enshrined in Article 25 of the eIDAS Regulation, according to which ‘an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds of its electronic form or because it does not meet the requirements of qualified electronic signatures‘.
In the light of the foregoing, the point-click specifically referring to the vexatious clauses must therefore be considered a sufficient means of acceptance thereof, in accordance with the requirements of Art. 1341 of the Civil Code, insofar as it can be ascribed to the category of electronic signature. On the other hand, the widespread practice on the part of e-commerce sites of requiring the user to first create an account protected by a username and password, seems sufficient to guarantee the traceability of the acceptance of the clauses to the user who has (self-)identified himself by means of such credentials and therefore has had access with such data to the platform on which he concluded the contract. Consider again, in this regard, that the creation of an account normally presupposes – and in any case good practice also recommends this from the point of view of the computer security of processes – that when creating the account, the user confirms his or her data, after having received an e-mail from the platform where he or she intends to create the account, confirming the data. This is a double step that reinforces the reliability of the act of acceptance of the unfair terms of the contract from the point of view of the quality of the act of acceptance of the terms, even if it is carried out by ticking acceptance of the same at the foot of the virtual contract form.
As pointed out in commenting on the Supreme Court’s judgment of 9 April 2021, No. 9413, the Supreme Court recognised the point-click as a valid way of concluding a covered warrants contract. This implies that the mere ticking of boxes by means of which it is possible to accept the terms of a contract and even the vexatious clauses themselves pursuant to Article 1341 of the Italian Civil Code, is (or should be) recorded informatically by means of special log files that serve to keep track of the activity performed by the user/contractor. If kept in accordance with the rules, the log files, which offer a detailed representation in chronological order of the activities performed by those who have had access to the system, identified for the most part by an IP address, assume a significant probative value, also recognised by case law.
