The Distance Selling regulations provide consumers with certain rights, most significantly a seven working days �cooling off� period within which a consumer is entitled to cancel a contract for the provision of goods or services entered into at a distance. As regards contracts for services rather than goods (e.g. a mobile phone contract, an ISP agreement, etc), the original regulations provided an exception that unless the parties have agreed otherwise, the cooling off period and the right to cancel did not apply once the service has begun. This exception was conditioned, however, on the consumer being clearly informed in writing or another durable medium (e.g. email, fax), prior to the conclusion of the contract, that the right to cancel will not apply once the service has commenced. This has proved impractical for service providers to comply with in some instances. For example, where a consumer was taking out a mobile phone contract over the phone, with service to commence the same day, the service provider could not provide the consumer with the required written/durable notice prior to the conclusion of the contract, and the consumer was able to withdraw from the contract (even after the service has already commenced).

The main change in the regulations is that a service provider is no longer required to inform a consumer in writing before the contract is made that he/she will not be entitled to cancel the contract once the provision of the service has begun. Instead, the service provider is required, in such instances, to provide the consumer with a written/durable notice of how his/her right to cancel may be affected if he/she agrees to the performance of the service commencing less than seven working days after the contract was entered into, and such written/durable notice can be provided prior to or in good time during the performance of the contract/service. As for the consumer�s right to cancel in such instances, under the amended regulations it is as follows:

- where the service provider provides the written/durable information to the consumer prior to performance of the service and the consumer agrees to the service commencing before the end of the cooling off period, the consumer loses his/her right to cancel.

- where the service provider provides the written/durable information to the consumer in �good time� during the performance of the service, the consumer still has a right to cancel (even if he/she agreed to the early commencement of the service) but the cooling off period starts when the consumer receives the information (and ends seven working days later or when the service is completed, whichever is first).

This means that although service providers are now afforded more flexibility, they still have the incentive to provide the written/durable information to consumers as soon as practicable, as this will affect the existence/length of the consumer�s right to cancel. It should also be noted that if the service provider does not provide the required written/durable information at all, the consumer will be entitled to cancel the contract at anytime within the three months and seven working days from the day after the contract was concluded.

Amit Rainhartz