In 2020, Americans spent $21.6 billion while under the influence of alcohol. According to the results of a 2019 survey, over 40% of millennial consumers in the UK shopped online while intoxicated. Besides these numbers, a quick Google search shows that ‘drunk shopping’ happens more often than we realise. Although alcohol consumption has always affected consumers’ behaviour, the existent environment facilitates impulse buying, including drunk purchases.
Internet access is available 24 hours a day, everywhere. People are always surrounded by their smartphones, virtual assistants, and other smart devices. Payment methods become increasingly easy and ready to use. Platforms collect and process consumers’ personal data to tailor offers, advertisements, and prices according to users’ profiles. As a result, the purchasing action becomes progressively simpler and more appealing, giving shoppers less time to think.
Many consumers may regret making a purchase while under the influence of alcohol, whereas online sellers deal with return rates of 30% or higher. Between regrets and returns, what are the rights and obligations of consumers and sellers in relation to drunk shopping? What could be done to prevent people from buying things online while under the influence of alcohol? This Insight aims to reflect on these issues in light of Portuguese law.
THE RIGHT OF WITHDRAWAL
According to Portuguese Civil Code (PCC), if a person buys something while they are noticeably under influence of alcohol, the transaction is voidable due to the buyer’s ‘accidental incapacity’. The buyer can argue the voidability of the transaction up to one year after the ‘incapacitation’ has ended. However, when the purchase occurs online, the seller cannot notice that the buyer is intoxicated by observation, which is an obstacle to arguing that the transaction is voidable due to the buyer’s accidental incapacity.
Nevertheless, according to European Union (EU) legislation (Directive 2011/83/EU), which was transposed into Portuguese law (DL 24/2014), when consumers buy something online they have a 14-days period to cancel their order, for any reason and without justification. Thus, no matter if they were inebriated or sober, they can request the annulment of the transaction during this cooling-off period.
There are two main issues that consumers may face when trying to exercise these rights: proving intoxication at the time of the transaction (in case of claiming accidental incapacity) and cancelling transactions involving goods or services that are consumed/used soon after the purchase (for example, when a person buys a movie on a streaming platform).
VERIFYING CONSUMERS’ SOBRIETY
The current legislation, both in Portugal and in the EU, does not require sellers to verify consumers sobriety before a transaction, but it does not prohibit it either. In offline shops, the seller can observe shoppers’ behaviour to check whether they are intoxicated or not. Considering that, according to the PCC, the transaction is voidable only if the intoxication is noticeable, the seller’s observation should be enough.
In online shops, the seller cannot observe shoppers’ behaviour, but, in theory, it could process their personal data to infer if they are intoxicated or not, and even their level of intoxication. Here, the seller must act according to the General Data Protection Regulation (GDPR), and the lawfulness of the processing can be based on the users’ consent or the platform legitimate interests. In the latter case, the company must balance its interests versus the interests and fundamental rights and freedoms of consumers before applying this legal ground.
Given that there is currently no information about e-commerce platforms processing data for the specific purpose of checking users’ sobriety, it is hard to predict how exactly algorithms would work, if they would be accurate, and how companies would use this information. In any case, regardless of the technological aspects, companies must act according to the applicable legal provisions, and consumers’ rights must be respected.
There is no European or Portuguese legislation focused in preventing drunk shopping or other forms of impulse buying. Therefore, it seems unlikely that e-commerce platforms will invest their efforts and resources to avoid them. However, if drunk shopping has a significant impact in return rates, preventing it might be interesting for platforms. On the consumer side, protecting themselves from intoxicated purchases may be very useful to avoid regrets and reduce unwanted expenses.
Although the law does not have answers to all the issues arising from inebriated shopping, technology can help with this. For consumers, there is software to help them to reduce impulse purchases by giving them “more time to think”. And for platforms, they can process users’ data to infer when they are intoxicated, and then freeze the transaction until the next day, for example. They can also adopt strategies to encourage shoppers to think twice, particularly at late hours or weekends. Beyond drunk shopping, it is important to expand the reflection to the consequences of the strategies used by e-commerce platforms to simplify and personalise the purchase action.