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.
Refurbished goods or parts
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.
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.
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 seek the consumer’s consent to the repair before accepting the goods and commencing any repairs.
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.
