For me, the moment of maximum vigilance in an online purchase occurs when the seller asks for my credit card number. I suspect it is the same for everyone. The act of supplying this very important number is the digital equivalent of a handshake. We like the goods, we like the terms, so we supply our credit card number and click "OK" or "Charge this amount" or something similar. We do it all the time.
Another thing we do all the time is abandon offers for services that are "Free" for a limited time if the seller requests a credit card number, presumably to secure payment after the promotional period expires. Free? Great. You want my credit card? Forget it.
But we are promiscuous with our e-mail addresses. Most people I know have several, at least one dedicated to catching promotional or non-essential material, and they have a lot of faith in their spam filters. The provision of an e-mail address is frequently the price paid for receiving an e-book or some other free information good. We give our e-mail address out all the time. We don't attach much significance to it.
These are the thinking-without-thinking processes that Malcolm Gladwell wrote about in Blink: the extent to which decision-making is guided by subconscious, non-rational mechanisms. Supplying a credit card number means "Charge my account and send me the goods." Supplying an e-mail address means "Send me some e-mail," a significantly more casual transaction.
What if supplying an e-mail address could mean "Charge my account"? From a marketing perspective, that would be genius, right? But would it be lawful?
The answer, according to In re VistaPrint Corp. Marketing and Sales Practices Litigation, No. 4:08-md-1994 (S.D. Tex., Aug. 31, 2009), is yes. The court's decision demonstrates how a business can exploit human psychology and play tough with the consumer in an entirely fair and lawful manner.
VistaPrint sold business cards from its website. VistaPrint collected the buyer's credit card information at the point of sale. Following the sale, VistaPrint displayed additional web pages inviting the purchaser to "save" $10 on the just-completed transaction by enrolling in an affiliate marketing program that was free for the first 30 days. After 30 days, the purchaser's credit card would be charged $14.95 each month, unless the purchaser had cancelled the program.
Interested purchasers were asked to accept the invitation not by supplying their credit card information again but by entering their e-mail address and clicking on a "Yes" button indicating that they had read through and agreed to the terms of the offer. VistaPrint's web page indicated that the purchaser's e-mail address would "constitute [an] electronic signature."
The plaintiffs in this case -- a group of purchasers who supplied their e-mail addresses, clicked "Yes" on the acceptance screen, and subsequently neglected to cancel the program after 30 days had expired, thus incurring the monthly $14.95 charge -- first argued that the signup process was unlawfully deceptive. But the court rejected this argument, finding that VistaPrint had clearly and conspicuously explained the terms of the offer to the plaintiffs before inviting them to click "Yes."
According to the court: "This language is clear and easily understandable by anyone capable of making an online purchase of business cards."
The plaintiffs also contended that the monthly charges were "unauthorized" under the Electronic Funds Transfer Act, 15 U.S.C. 1693 et seq. Not so, the court said. The EFTA excludes "any electronic fund transfer ... initiated by a person other than the consumer who was furnished with the card, code, or other means of access to such consumer's account by such consumer, unless the consumer has notified the financial institution involved that transfers by such person are no longer authorized." Here, the plaintiffs furnished VistaPrint with their credit card numbers when they purchased the business cards. And they later authorized VistaPrint to charge their account according to the terms of an offer that was clearly spelled out on the web page. "Plaintiffs typed their e-mail addresses into the spaces provided on Defendants' webpages, thereby authorizing Defendants to 'charge/debit [their] account according to the Offer Details,'" the court wrote.
It is hard to fault the court's legal reasoning on either the contracting or the EFTA points. Unlike other cases in which the purchaser was required to click a hyperlink to read important contract terms, a practice very recently found to be non-deceptive, VistaPrint conspicuously displayed the terms of its offer on the same page where it asked for the purchaser's e-mail address and assenting click. And nothing in the EFTA requires the purchaser's act of furnishing account information to be contemporaneous with his or her authorization to charge/debit the account.
Still, I wonder why VistaPrint asked for the purchaser's e-mail address as a means of assenting to its offer. After all, they already had this information and it does not appear that the e-mail address was used to authenticate the purchaser. Strictly as a matter of contract law, all VistaPrint needed was a mouseclick to seal the deal. Is it possible that asking for an e-mail address somehow minimizes in the purchaser's mind the significance of the click? Or distracts the purchaser from the rest of the language on the page? I honestly don't know the answer to these questions. This is sort of a flight of fancy, I admit, but there must be some reason for asking for the e-mail address. I wish I knew what it was.
p.s Yes, I know about Amazon.com 1-Click. Same general sort of deal though 1-Click is a convenience. VistaPrint is offering to pay $10 on the chance that the consumer will forget about that first $14.95 payment 30 days later.
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