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, digital car devices and other similar electronic goods.
Under the Australian Consumer Law, repair notices must be provided to a consumer by any business before accepting goods for repair, where:
- the goods being repaired are capable of retaining user-generated data, for example, mobile phones, computers, portable music players, digital car devices and other similar electronic goods, 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 whether or not the goods were initially purchased online or as second-hand goods.
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
- those goods have been “acquired as a consumer”
- goods that cost less than $40,000
- goods that cost more than $40,000 but are of a kind ordinarily acquired for domestic, household or personal use or consumption
- 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.
Any business that repairs goods as described above must provide a repair notice to a consumer before accepting goods for repair. It does not matter whether the consumer is the original consumer or a representative of the original consumer.
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.
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.
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 or to your website; 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.
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.
It 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.
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.
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.
A refurbished good or part is likely to be considered as a used good/part that has been reconditioned or restored to an acceptable working order.
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.
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.
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.
For 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.