Live Chats and Chatbots: the Legal Aspects Explained

Online providers of holiday accommodations, hotel rooms, or online booking tools want to their guests to be able to make bookings as quickly and easily as possible, or to have all their questions answered. The use of Live Chats and Chatbots has become indispensable in this process. Chatbots are a means for communicating with guests in a personalised and often fully automated way. Live Chats, on the other hand, still require the intervention of call center agents or a reception team. The market offers countless software tools developed specifically for the hospitality sector. These chatbots are often AI-driven and connect different omnichannel platforms, like social media, to each other using advanced functionality.

Online providers have ample freedom to decide how and through which channels the consumers (their guests) are to be reached. However, there are still some rules to be observed. In this article, these general information requirements will be discussed and examined in light of new (technological) developments. Please note that the use of certain Chatbots functioning like AI systems may also entail other specific obligations (of transparency) and privacy rules. These last-mentioned rules will not be discussed in this article, which focuses only on the rules that apply under Dutch contracts and consumer law.

If you offer services to guests on your website or platform, you have to provide certain information permanently. One example is contact details that enable guests to get in touch quickly and make direct and effective communication possible. European and Dutch e-commerce rules dictate that the following information must be displayed permanently:

• the identity and registered office of the provider;
• data that allow quick contact and direct and effective communication, including an electronic mail address;
• if applicable: the trade register number;
• data on the competent supervisory authority if the activity requires a permit;
• in the case of a regulated profession: information about the professional association, the professional title and a reference to the professional rules in place;
• the VAT number.

In addition, consumer law rules imply that consumers should always be provided with an e-mail address in the pre-contractual phase of a distance sale. This information need not be accessible permanently, but must be provided prior to or during the conclusion of the agreement, e.g. during the online ordering process /check-out of the consumer.

The set-up of a customer service and the offer of certain contact channels and means of communication may have a big strategic impact. They may also mean a lot for your competitive position as a provider compared to other providers. With the help of Live Chats or Chatbots, consumers can arrange their things and ask questions online to an ever greater extent. This saves both the provider and the consumer time and costs. It follows from the list above that providers must permanently display an ‘electronic mail address’ on their website or platform. This somewhat old-fashioned term (coming from the year 2000) leaves enough to the imagination. What it all comes down to is how consumers should be able to contact you.

The requirement of providing an ‘electronic mail address’ has been clarified in case of the EU Court of Justice and Dutch lower courts. The EU Court of Justice has ruled that this is not necessarily an electronic mail address, so this is not a mandatory provision. A means of communication must be made available that enables consumers to contact you quickly and communicate with you effectively. The Dutch Court held that not only an electronic mail address, but also a Live Chat creates a direct connection between an address and a consumer, thus making communication possible. This displays a ‘technology-neutral’ interpretation, where the emphasis is on the goal rather than on the underlying technology. However, the means of communication always has to be able to establish quick, direct and effective contact with the provider. Furthermore, the Dutch Court held that a LiveChat need not necessarily offer the option of saving a chat session. It is basically not required either to make it possible to send files in this context, but the customer service agent must be able to provide an e-mail address, via the chat if necessary. Also, the LiveChat of a hotel's website need not be accessible permanently. However, the contact details of a catering establishment must be visible on the website 24 hours per day. In the Court’s opinion, the LiveChat fulfilled the requirement of quick contact and direct and effective communication with these functionalities. Just as the EU Court of Justice in the Amazon judgment, the Dutch Court also referred to the freedom to conduct a business.

The courts have proven themselves (sometimes) willing to abandon a rigid interpretation of information requirements as described above, and to offer flexibility instead, in order not to thwart innovation unnecessarily. This is true in any case for the obligation to make an ‘electronic mail address’ available, but it will undoubtedly also be made to apply to other information requirements. However, you should be aware that a broader interpretation will not be considered appropriate for all kinds of information. For example, the obligation to provide a VAT number can hardly be complied with differently than by actually publishing this VAT number.

A Chatbot is another common means of communication on websites and platforms. It is not (yet) clear whether a Chatbot can be designated as a means of communication that allows quick contact, direct and effective communication. However, it is common for Chatbots, after filtering a (limited) number of questions, to switch through to a Live Chat with a customer service agent or to display an e-mail address and/or phone number.

It is important to ensure that a website and/or platform provides the correct information that applies under Dutch law. Some obligations apply to the pre-contractual phase while others apply permanently; there is a partial overlap. In the Netherlands, the Authority for Consumers and Markets (‘ACM’) supervises compliance with these rules. The ACM can impose a fines up to €900,000 for breaking these rules, and in recent years it has shown to be more vigilant and resolute (willing to impose fines). You should therefore make sure that your website or platform complies with these rules.