Liability of ad aggregators

Ivan Mashin

When creating an ad aggregator, a company needs to consider choosing legal models. In fact, he is only an intermediary and cannot be responsible for the actions of the two parties to each other. However, in some cases, the law places responsibility on the aggregator itself. Therefore, the ad aggregator must correctly draw up contracts with sellers and create a website in order to remain an intermediary within the law. You can read about what factors an ad aggregator should pay attention to in our article.

Content:

What are the responsibilities of an ad aggregator?

An ad aggregator may be held liable under certain conditions. Within the framework of B2C relations, some conditions of liability are provided for by the Law "On Protection of Consumer Rights". There are no special rules for an aggregator within B2B, so here you should be guided by the articles of the Civil Code.

Aggregator's violation of the Advertising Law

The aggregator may post ads that would be contrary to advertising laws. In Art. 7 of the Law "On Advertising" contains a list of goods that cannot be advertised. Violations of these restrictions may result in the blocking of your aggregator site, although you may not have been aware of these ads. The Federal Antimonopoly Service (hereinafter - FAS) considered such cases. Based on the position of the FAS, one can understand how to reduce the risks of being prosecuted for illegal announcements:

Firstly, information that is for informational purposes is not an advertisement. Such information is aimed at informing consumers about existing companies and indicating their type of activity. In fact, the site is an electronic catalog. Sites www.avito.ru, www.youla.ru were assigned to this category;
Secondly, information about products will not be considered advertising if this information is intended to inform consumers. Discounts, promotions, coupons and tickets on the site are also not advertising.
Thirdly, if an aggregator distinguishes a certain group of goods from other homogeneous ones, a public authority may recognize this as an advertisement. This can be in the form of a pop-up banner or a banner that is permanently pinned to the site in the same place.

What factors determine the responsibility of an ad aggregator?

The responsibility of the aggregator depends on the scope of the activity. For example, in the field of transportation, the Supreme Court outlined the criteria under which the aggregator is involved along with the executor of the transaction. The aggregator is liable to the passenger if 1) the contract was concluded on behalf of the aggregator, 2) the citizen could have formed the opinion that the contract of carriage is concluded with the aggregator, and the actual carrier is an employee or a third party involved. These factors include: advertising signs, information on the site, correspondence between the parties when concluding an agreement.

When providing services or selling goods to consumers, mandatory norms are applied at the level of legislation: aggregators fall under their influence even if there are reservations in the documents on the site, including the contract.

In addition, liability depends on the contractual model that the aggregator chooses.

Violation by the aggregator of the Consumer Protection Law

Firstly it is worth referring to the very definition of an aggregator. An organization or individual entrepreneur is an aggregator subject to the following conditions:

Site or program owners
This site provides the ability to:

See seller offers
Conclude a contract with them
Make an advance payment

If the aggregator does not meet one of the conditions, then the Consumer Protection Law does not apply to it.

The law imposes on the aggregator the obligation to post information for the consumer on the site about himself and the seller. For failure to fulfill this obligation, the aggregator is liable in the form of losses. Therefore, the aggregator must specify in the contract the procedure for notifying the seller about the change in information.

Also, the consumer has the right to sue the aggregator for the refund of the prepayment if:

The goods were not delivered on time (the service was not provided on time)
The consumer has sent a notice of withdrawal from the contract to the seller; he sends confirmation of this to the aggregator.

At the same time, the Law provides for the possibility for the buyer to first send it to the aggregator, which is obliged to redirect this to the seller. To exclude this option, the procedure for sending a notification must be prescribed in the user agreement or other agreement.

Thus, at the moment, the aggregator is liable for two violations.

Responsibility of the aggregator when concluding an agency agreement

One of the possible ways to formalize the relationship between the aggregator and the seller is an agency agreement. Then the aggregator will act as an agent, and the seller will act as a principal. The aggregator will represent the interests of the seller. The law offers two agency constructs:

On behalf of the principal and at the expense of the principal;
On its own behalf, but at the expense of the principal.

In the second case, along with the seller, the aggregator as an agent will be responsible to the buyer. Therefore, the aggregator should not act on behalf of the sellers if it does not want to be responsible for their obligations.

Thus, the responsibility of ad aggregators depends on the model they choose: whether the aggregator takes payments directly, what kind of contract it enters into with the seller and the buyer, what kind of ads it places and highlights on the site. Therefore, in order to reduce the risks of prosecution in the future, it is necessary to provide for this even at the stage of creating a website and choosing a model. If you have any questions or you need help with legalization of the aggregator's activities, please contact the lawyers of A4 Law Firm.