When consumers take their goods to have them repaired they do not always realise that the goods may contain stored data that could be lost in the repair process. This is most likely to happen with items such as mobile phones, computers, portable music players and other similar electronic goods.
The Australian Consumer Law (ACL) Regulations require that from 1 July 2011 repair notices must be provided by a repairer to a consumer before they accept goods for repair, where:
the goods being repaired are capable of retaining user-generated data; or
it is the repairer’s practice to supply refurbished goods rather than repair defective goods, or to use refurbished parts in the repair of defective goods.
These obligations apply even if goods were purchased prior to 1 July 2011 and whether or not the goods were initially purchased online or as second-hand goods.
A notice relating to the repair of goods that are capable of retaining user-generated data must state that the repair of goods may result in the loss of the data. For example, the repair notice could say:
The repair of your goods may result in the loss of any user-generated data. Please ensure that you have made a copy of any data saved on your goods.
or
During the process of repair, some or all of your stored data may be lost. Please ensure that you have saved this data elsewhere prior to repair.
If a repairer sometimes uses refurbished parts to fix defective goods (rather than new parts), or sometimes replaces defective goods with a refurbished version, they must also give the consumer a repair notice before accepting goods for repair. Unlike the notice for goods capable of storing user-generated data, the notice must include specific wording required by the ACL.
This wording is:
Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.
A repairer must provide this repair notice whether or not they know before inspecting the goods that they will use refurbished parts in a particular repair or supply refurbished goods instead of repairing the goods.
A repair notice can be included in another document provided by the repairer (for example in the terms and conditions document for the repair) so long as it clearly distinguishes the notice from other information in the document, stating that the notice is given under the ACL, and is not hidden or otherwise obscured within the document (for example, in fine print) and provided before the repairer accepts the goods for repair.
User-generated data is any data stored on goods, such as:
files stored on a computer hard drive
telephone numbers stored on a mobile telephone
songs stored on a portable media player
games saved on a games console
files stored on a USB memory stick.
User-generated data includes data that is generated through use of the device (such as an incoming call log on a mobile phone).It is unlikely to include data generated by the manufacturer.
Any business that repairs goods is a repairer and must provide a repair notice to a consumer before accepting goods for repair. In some cases, a business that sells or manufactures goods will accept goods for repair on behalf of a repairer. In such circumstances, that business must provide a repair notice on behalf of the repairer.
Example 1:
A consumer purchases a laptop computer and the hard drive becomes faulty. If the consumer:
returns the laptop to the business they purchased it from and they accept it for repair (on behalf of the repairer) – then the business must provide the consumer with a repair notice on behalf of the repairer
returns the laptop to the business they purchased it from who does not accept it on behalf of the repairer but agrees to send it to the repairer for repair – then the repairer must provide the consumer with a repair notice not the business
returns the laptop directly to the manufacturer who accepts it for repair as the repairer – then the manufacturer must provide the consumer with a repair notice
delivers the laptop to a general repair business that repairs the goods - this business must provide the consumer with a repair notice.
Example 2:
A consumer has a car accident and contacts the insurer to make a claim and organise for the repair of their vehicle. Music files have been saved into the memory of the vehicle’s electronic system, which would require a repair notice to be provided. If the insurer accepts the vehicle for repair on behalf of a specific repairer – the insurer must provide a repair notice to the consumer. If however the insurer is accepting the vehicle to only assess the claim, then they will not be required to provide a repair notice.
Whether the insurer will be required to provide a repair notice will ultimately depend on the individual circumstances of each situation.
What goods do the repair notice requirements apply to?
As a repairer you will have to provide a repair notice where:
the goods you accept for repair are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption; and
those goods have been “acquired as a consumer”. This includes:
goods that cost less than $40,000; or
goods that cost more than $40,000 but are of a kind ordinarily acquired for domestic, household or personal use or consumption; or
a vehicle or trailer primarily used to transport goods on public roads;
but excludes goods that are purchased to be resold or to be transformed into a product that is sold.
Example:
A computer is a good that is of a kind likely to be used for personal use. It would also generally fall under the $40 000 threshold.Therefore the repair notice requirements will apply, irrespective of the fact that a particular computer brought in for repair is being used for business purposes.
However, if the business acquired the computer for re-supply (eg. retail sale) it will not have been ‘acquired as a consumer’ and the repair notice requirements will not apply.
The repair notice must be given to the consumer before the repairer accepts the goods for repair. It does not matter whether the consumer is the original consumer or a representative of the original consumer.
Where goods are accepted for repair in person, the consumer must be provided with a written repair notice. It is not enough to refer consumers to a sign at your business premises; the consumer must be given a copy of the repair notice.
Where there is no face-to-face contact, for example, where a consumer sends the goods to the repairer, they must be given a written copy (e.g. by email, mail or facsimile) before the business accepts the goods for repair.
When the repair notice is provided by mail, the repairer must allow a reasonable time for the consumer to receive the notice before accepting the goods for repair. What is reasonable will depend on the circumstances, but the repairer should allow sufficient time for the consumer to receive and respond to the notice.
It is good business practice for repairers to tell the consumer verbally and seek the consumers' consent to the repair before accepting the goods and commencing any repairs.
This will also ensure that the consumer is made aware and will be able to take the necessary steps to either back up their data, or decide whether they would like repairs to take place with the use of refurbished goods or parts.
Example 1:
A consumer takes their mobile phone for repairs. At the repairer, there is a sign at the counter notifying consumers about the risk of data being lost during repair. The repairer does not warn the consumer by giving them a written notice or advising them verbally about the risk of data being lost, but rather relies on the consumer to read the warning sign at the counter about this risk. As it is up to the consumer to notice this sign, the business cannot be sure that they will notice it. In these circumstances, the consumer may not be provided with the opportunity to back up their data before repairs are carried out.
This example illustrates why a repairer is required to give the consumer a notice (and the ACCC recommends that the consumer is also verbally advised and their consent sought) so consumers are actually made aware of the risk and are given the opportunity to back up their data before repairs commence.
Example 2:
A consumer takes their washing machine for repairs. The repairer sometimes uses refurbished parts in their repairs or replaces defective goods with a refurbished version. Accordingly, the consumer should be notified of this before the goods are accepted for repair in order to make an informed decision on whether, in light of this information, they would like to proceed with the repairs.
If the repairer does not provide the consumer with a notice about the use of refurbished goods/parts before they accept the goods for repair, the consumer will not be given the opportunity to make an informed decision about the repairs.
Do I need to provide multiple repair notices when I accept a number of goods for repair?
Whether multiple repair notices will need to be provided will depend on when the goods were taken to the repairer.
Where multiple goods are taken at the same time to the repairer, this could be deemed to constitute one transaction. In these circumstances, one notice would be sufficient to inform the consumer, rather than providing two physically separate notices stating the same information.
Example 1:
A consumer takes their digital photographic camera and digital video camera for repairs at the same time. A single repair notice should be provided to the consumer before the repairer accepts the goods for repair. Multiple repair notices would not be required in this circumstance as the consumer took both cameras in at the same time (in the one transaction).
Where the consumer takes their goods to the repairer on separate occasions – that is, there are two separate transactions – then the repairer should provide two separate repair notices: one for each transaction, before accepting the goods for repair.
Example 2:
A consumer takes their media player to a repairer for repair and a week later takes their mobile phone for repair. As the media player and mobile phone were taken to the repairer on two separate occasions (in two separate transactions) two separate repair notices would need to be provided.
What if I repair goods that contain user-generated data and it is also my practice to use refurbished parts/goods when providing repairs?
If both repair notices are relevant to your business, you should ensure that both notices are included, whether they are provided as a single document or two separate documents.
Example:
A consumer takes their media player for repairs to a repairer who sometimes uses refurbished parts when repairing goods.
As a media player is likely to store user-generated data such as music, a repair notice will need to be given to the consumer that states words to the effect of:
The repair of your goods may result in the loss of any user-generated data. Please ensure that you have made a copy of any data saved on your goods.
In these circumstances, the repair notice must also include the following words (or an additional repair notice given to the consumer that says):
Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.
Repair notices and assessment of goods for defects
A repair notice (where relevant) does not need to be given in circumstances where a consumer takes a defective good to a business only to be assessed for repair (rather than immediate repair). The business may wish to assess the nature of the damage before deciding whether to accept the good for repair.
If, however, a good is accepted for the purposes of repair irrespective of whether an assessment is carried out first, a repair notice should be provided where relevant.
It would make good business sense to provide a repair notice in both circumstances.
If businesses recall a consumer product for safety reasons and offer to repair the goods as a remedy they must also be mindful of repair notices.
Example:
A supplier recalls a games console because the circuit board is prone to overheating potentially causing injury to the user. Where a recall notice states the consumer should:
return the games console to the business they purchased it from and they accept it for repair (on behalf of the repairer) – then the business must provide the consumer with a repair notice on behalf of the repairer
return the game console directly to the manufacturer who accepts it for repair as the repairer – then the manufacturer must provide the consumer with a repair notice
delivers the games console to a general repair business that repairs the goods - this business must provide the consumer with a repair notice.
If a business does not give a repair notice when and in the form the Regulations say they must, they may face penalties of up to $50,000 for corporations and up to $10,000 for individuals.
For further information on the ACL visit the website www.consumerlaw.gov.au which contains information on all areas of the ACL, including the Regulations, and links to a number of publications.
You can also call the ACCC’s Small Business Helpline on 1300 302 021.
Please note that while this material provides general information about businesses’ obligations and examples to help clarify these obligations, it should not be relied on as legal advice or a definitive list of how the law applies.
