Open Access Research Article
CONSUMER PROTECTION IN THE AGE OF E-COMMERCE
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Article Details
CONSUMER PROTECTION IN THE AGE
OF
E-COMMERCE
AUTHORED
BY - ADV. MAHESHWARI S. PATIL
&
MS. KAVITA R SANDBHOR
ABSTRACT
[1].The
2019 Act varies from the 1986 in multiple ways viz., widening the scope by
dealing with 3 more unfair trade practices, E-commerce, Product liability,
Unfair Contracts ; by introducing a new regulatory body named Central Consumer
Protection Authority and by making the already existing penalties more
stricter.
[2].The phenomenon ?E- Commerce started
ruling global business
environment. The citizens are popularly referred as
netizens, the retailers now called e- tailors; the consumer became e- buyer.
Buying and selling
online defined as e- commerce
which poses greater
challenges to the very idea of conventional marketing as well as consumer protection. India, being one of the largest markets in the world
having lower literacy rate at the same time at the peak of e- commerce needs appropriate legal mechanism to handle the ever-growing challenges. The ever-growing challenges of e- commerce
demands appropriate legislative tools to cope up with the business environment. The
critical examination of the COPRA, 1986, the consumer protection bill, 2015,
Consumer Protection Act, 2019 And Consumer
Protection (E-Commerce) Rules,2020 i.e., the Consumer Protection Act,
2019 and Consumer Protection (E-commerce) Rules, 2020.
[3]The
new regulations are arguably strong enough to protect and safeguard online
consumers ‘rights and boost India ‘s e-commerce growth. Besides factors such as
security, privacy, warranty, customer service, and website information, laws
governing consumer rights protection in e-commerce influence customers ‘trust.
Growing e-commerce looks promising with a robust legal framework and consumer
protection measures.
KEYWORDS: E-Commerce, Consumer Protection,
INTRODUCTION:
As Mahatma
Gandhi once said,
"The customer is the most important visitor
in our premises. He is not dependent on us. We are dependent on him. A
Consumer is the most important visitor on our premises.
He is not dependent on us we are on him. He is not an interruption to our work; he is the purpose of it. ?We are not doing a favor to a consumer
by giving him an opportunity. He is doing us a
favor by giving an opportunity to serve him."
provides a dynamic
and collaborative platform
to business and consumers. This has resulted in increased
competition and lower prices. Consumers get to choose from a whole range of good and services across the world,
from anywhere and at any time. Businesses are constantly innovating new technologies in order to adapt to new and evolving challenges in the area of e- commerce. One of the main drivers
underlying ecommerce growth is the rise in number of individuals using the
Information and Communication Technology (ICT) as a platform to trade.
[4]. The development of electronic commerce
poses a number of legal and consumer
challenges. In India, we are seeing a convergence of new technologies
and the deregulation of the financial sector. At a time of great change
consumers need to be protected, and the law is struggling to keep up.
PROVISION UNDER INDIAN
CONSTITUTION
[5].Article 14 of
the constitution implies equality before
the law and equal protection of laws. This results in manufacturers, producers, traders, sellers and consumers having
an equal position
before the law.
Article 39 has two clauses, (b) and (c), according to which the state is bound to direct its policy to ensure the distribution of
the ownership of the material
resources of the society. This
distribution should be done to serve the common good.
According to
Article 43, the state must strive to develop an economic organization or to
make legislation in order to secure a decent standard of life to all the
workers. These workers are the ones who constitute the bulk of the consumers.
The Indian
Constitution, Articles 38, 39, 42, 43, 46 & 47; stipulates that the state
must make every effort to maintain public
order in order to enhance
the well-being of society, and also guide your book accordingly. Welfare does
not mean the concentration of wealth and means of production on the common
good, does not guarantee fair and humane working conditions, and does not
contribute to motherhood; It should strive to create an economic organization
or develop appropriate legislation to
ensure an adequate standard of living for all workers, who constitute the
majority of consumers, and it should promote the educational interests and
economies of registered tribes, registered voters and other sectors.
CONSUMER PROTECTION: LEGISLATIVE FRAME WORK DEFINITION OF CONSUMER: -
6.According to Sec.2
(1) (d) of COPRA consumer
means any person who;
i.
buys
any goods for a consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment and includes any
user of such goods other than the person who buys such goods for consideration paid
or promised or partly paid or partly promised, or under any system of deferred
payment when such use is made with the approval of such person, but does not
include a person who obtains such goods for resale or for any commercial
purpose; or
ii.
hires
or avails of any services for a consideration which has been paid or promised
or partly paid and partly promised, or under any system of deferred payment and
includes any beneficiary of such services other than the person who 'hires or
avails of the services for consideration paid or promised, or partly paid and
partly promised, or under any system of deferred payment, when such services
are availed of with the approval of the first mentioned person but does not include
a person who avails of such services for any commercial purposes;
According to
Oxford university dictionary ?the term ?consumerism ‘had been first used in the
year 1915 and referred to ?advocacy of the rights and interests of consumers ‘defined
in Oxford English Dictionary but here in this article the term ?consumerism ‘means
the sense was first used in 1960, ?emphasis on or preoccupation with the acquisition of consumer goods?.
Is this definition applicable in the
era of electronic commerce is major query; UNGA guidelines in digital
era raise ?whether
physical goods which are sold online or what is called digital
goods sold online or through a cart can be brought under the purview of
the Consumer Protection Act, 1986, India?? And also, how the pecuniary
jurisdiction (state defined) is defined in cyber space/online selling
and how the personal jurisdiction (person) of the consumer determined while operating online demands new or modification of
definition. The goods (tangible/ intangible) for an example have different
meaning when come to taxation authority and another meaning in consumer
protection. The digital marketing/ service industries shapes new meanings of
who is consumer, because there is ambiguous situation where consumer
online is not just buyer alone for just consumption but also use the same
platform to sell for the purpose of making profit; The models such as B to B, B
to C and C to C can be analysed for an example. The United Nations‘ General
Assembly (UNGA)[6] in the year 1985 authorised the secretary general of UN to pursued member nations
(particularly developing countries) to enact consumer laws by following the
policy frame work as given below;
i.
Physical safety;
ii.
Promotion and protection of consumers‘ economic interests;
iii.
Standards for the safety and quality of consumer goods
and services;
iv.
Distribution facilities for essential consumer goods and
services;
v.
Measures enabling consumers to obtain redressed;
vi.
Measures relating to specific areas (food, water, and Pharmaceuticals;
vii.
Consumer education and information programme.
India being founding member of United
Nations (UN) had inducted the UNGA guidelines on consumer rights in to the
Indian COPRA (Consumer Protection Act), 1986; To quote; -
·
Right to Safety: The right to be protected from all kind
of hazardous goods and services
·
Right to be informed: The right to be fully informed about
the performance and quality of all goods and services
·
Right to Choose: The right to free choice of goods and
services
·
Right to be heard: The right to be heard in all decision-making
processes related to consumer interests
·
Right to Redressal: The right to seek redressal,
whenever consumer rights have been infringed
·
Right to Education: The right to complete consumer education
There is need to test whether COPRA crafted
with the aid of the constitution
of India in part –III fundamental
rights (Article 14- 19) as to understand whether the legislative mechanisms are
preventive/punitive in nature or compensatory when come to exploitation of
consumers.
The Constitution of India in Article 46 of the Indian constitution provides that state shall endeavor to protect the economic
interest of the weaker section
of its population and also protect them from
social injustice and all forms of exploitation which means all kinds of
harassments and frauds in the market place. This also includes people should be
entitled to unadulterated stuff injurious to public health and safety. This
principle amply reflects the inclusion of the philosophy of the concept of
consumerism in article 47 of the Indian Constitution.
CONSUMER PROTECTION ACT OF 1986 AND THE EVOLUTION OF A NEW LEGAL CULTURE CONSUMER PROTECTION ACT
OF 2019:
CONSUMER
PROTECTION ACT OF 1986
7.The
Indian legal system experienced a revolution with the enactment of the Consumer
Protection Act of 1986 [?CPA?], which was specifically designed to protect consumer interests. The CPA was passed with avowed objectives. It
is intended to provide justice which
is ?less formal, [and involves] less
paper work, less delay and less [expense]?. The CPA has received wide recognition in India as poor man
‘s legislation, ensuring
easy access to justice. However,
the CPA simply gives a new dimension to rights that have been recognized
and protected since the ancient period. It is
rightly said that ?the present-day concern for consumer rights. is not new and that consumer
‘s rights like the right
to have safe, un-adulterated and defect-free commodities at appropriate prices has been
recognized since ancient times.
The Indian
government is also taking an active interest in protecting consumer rights and
promoting effective consumer
movements. In 2003, the Planning
Commission of India identified
?Consumer Awareness, Redressal, and Enforcement of the Consumer
Protection Act of 1986? as a priority, and as a result, a
national action plan was prepared.
8.In order to counter
these issues, the Government
has been introducing a series
of provisions for providing protection to consumers
such as the Indian Contract Act 1872, Sale of Goods Act 1930, Standards of Weight and Measures Act 1976, etc. These measures
provided some relief
to the consumer but there was scope for further reform to address adulterated
and sub-standard goods. This is what the Consumer Protection Act of 1986 sought
to resolve. While it was successful in addressing critical issues, it still had
some drawbacks as well:
·
Lack of provisions related to online transactions or
teleshopping
·
Many varieties of deceptive or unfair practices were not
added in this Act
·
Lack of provision related to product liability
·
Lack of provisions related to unfair contracts
·
Lack of provisions for e-commerce websites
·
No provision for an Alternative Dispute Redressal Mechanism
[7].CONSUMER PROTECTION ACT, 2019
The Consumer Protection Act, 1986 is
repealed after three decades and replaced by the Consumer Protection Act, 2019. The Consumer Protection Act, 2019 has been enacted
with a view to widen the scope of consumer rights and cover the field of e-commerce, direct selling,
tele-shopping and other multi levels of marketing in the age of digitization.
·
Consumer
Protection Act, 2019 is a law to protect the interests of the consumers. This
Act provides safety to consumers
regarding defective products,
dissatisfactory services, and
unfair trade practices.
·
The
basic aim of the Consumer Protection Act, 2019 is to save the rights of the
consumers by establishing authorities for timely and effective administration and settlement of consumers‘ disputes.
[8].The Consumer Protection Act of 2019 was an improvement over the 1986 version of the
same. Some key
improvements that were introduced were:
·
Streamlining all methods of exchanges related to merchandise
purchase and enterprise transactions
·
The 1986 version of the Consumer Rights Act only had six
types of unfair/deceptive trade practices. Three new practices were added in
this section in the Consumer Protection Act of 2019.
·
The concept of product liability was also introduced
·
The provision of ?Unfair Contract ‘was also introduced—defined
as a contract that can cause a change in the rights of a consumer
·
New provision for direct selling and e-commerce, which
also elaborates basic consumer rights
·
Mandates that mediation cells should be attached to State,
District and National level commissions
·
Creation of the Central Consumer Protection Authority to
promote, protect and enforce the rights of consumers.
CONSUMERS BENEFIT FROM CONSUMER PROTECTION ACT, 2019
The Consumer
Protection Act, 2019 is a significant piece of legislation brought as it is beneficial
for the consumers. The Act widens the scope of protection regarding the rights
and interests of consumers.
1.
Unfair contracts: The Act introduced ?unfair contract‘
under Section 2(46) of the Act, which includes
contracts requiring excessive
security deposits to be given by the consumer for the performance of
contractual obligations. However, the inclusion of unfair contracts
in the Act would enable
the consumer to file complaints in such cases and would also keep the fraudulent
businesses in check.
2.
Territorial jurisdiction: The
Act enables the consumers to file complaints where the
complainant resides or personally works
for gain thus it would benefit the consumers in seeking redressal for their
grievances when their rights have been violated.
3. False and misleading advertisements: The Act defines the term ?false and misleading advertisements ‘and also lays down strict penalties
for such acts or
omissions.
4.
Product liability: The
term ?product liability ‘has been defined by this Act, which
states that it is the duty of the product manufacturer, service provider or
seller to compensate for any harm caused to a consumer by such defective
product manufactured or service provided to the consumer.
5.
Mediation and alternative dispute resolution:
The Act enables the consumer to opt
for mediation and alternative dispute resolution mechanisms for speedy and effective settlement of consumer
disputes.
6.
E-filing of complaints: The Act also facilitates e-filling of
the complaints and seeking video conference hearings by the Commission. Thus, providing convenient means for the consumers to
voice their grievances.
[9]E-COMMERCE:
Electronic commerce or ecommerce
is a term for any type of business, or commercial transaction that involves the transfer
of information across
the Internet. It covers a range of different types
of businesses, from consumer based retail sites, through auction or
music sites, to business exchanges trading goods and services between
corporations. It is currently one of the most important aspects of the Internet
to emerge. E-Commerce allows consumers to electronically exchange goods and
services with no barriers of time or distance. Electronic commerce has expanded
rapidly over the past five years and is predicted to continue at this rate, or
even accelerate. In the near future the boundaries between
"conventional" and "electronic" commerce will become
increasingly blurred as more and
more businesses move sections of their operations onto the Internet.
Basically there is three types of
E-Commerce are exists.
They are:-
1. B2B (business
to business)
2. B2C (business
to consumer)
3. C2C (consumer
to consumer)
WHETHER E-COMMERCE HAS INSURED THE RIGHTS OF CONSUMERS
Technology is facilitating the creation of new approaches to service
delivery and permitting the introduction of new electronic products. For
example, a number of major Canadian financial institutions are now offering
financial products and services through
the Internet. In many cases,
their competitors are scrambling to catch up. Some financial institutions view
the Internet as an alternative product delivery channel. For others, including
the new Citizens Bank of Canada, a subsidiary
of Vancouver Savings Credit Union and ING Direct, the trust company subsidiary of ING Bank (Netherlands), the Internet is a primary delivery
channel. No proprietary software or private communication network
is necessary. Customers
can use industry standard Web browser
software and must arrange their own access to the Internet through an Internet
service provider.
The conduct of financial transactions
through the Internet is not likely to displace other more traditional channels
anytime soon. However, financial institutions appear to be drawn by two
factors. The first is the lower transaction costs associated with transactions
conducted electronically as opposed to their branch networks. The second
attraction is the demographics of customers who are interested in using the
Internet to access financial services. One American study projected that with
respect to the banking industry, each Internet customer is likely to be 50-250%
more profitable than the average banking customer. Some financial institutions
have also begun experimenting with the use of electronic contracts formed
through "click-through" or "Web-wrap" agreements. For instance, First
Union, a US bank, offers
an on-line application for a home equity
loan. Part of the application procedure includes a notification of certain
terms and conditions. To complete the process, applicants must click on a
button marked "I understand and
accept the above terms and conditions". A similar procedure is used by
Bank of Montreal to process on-line applications for MasterCard products.
The
use of such on-line contracts
requires consideration of the extent
to which such conduct by an applicant can legally constitute
"acceptance" and of various writing and signature requirements
applicable to certain types of transactions.
Consumer Issues: - Major consumer issues raised by Internet transaction systems include: Ø
Security
Ø
Privacy
Ø
Terms and Conditions Ø Access
Ø
Dispute Resolution Ø Fees and
Charges Ø Fraud
OECD GUIDELINES FOR CONSUMER PROTECTION IN THE CONTEXT
OF ELECTRONIC COMMERCE
Regulation of this area in the U.S.
should be governed by the OCED Guidelines on Consumer Protection which were
released in 1999. These Guidelines are predicated on the basis that consumers should
not be offered any less protection when participating in electronic commerce than they are in other forms of
commerce. The main protections which the Guidelines propose include;
A. Fair Business,
Advertising and Marketing Practices
B. Sufficient disclosure
of relevant information
C. A clear and
unambiguous confirmation process
D. Proper means
of redress in the case of cross border disputes and clarification of applicable
jurisdiction.
E. A secure method
of payment, minimizing the risk of financial loss.
F. A reliable
system of international Alternative Dispute Resolution to provide a workable
alternative to litigation, which may be costly and disproportionate in the case
of long distance transactions
Electronic commerce refers to the
sale of various products and services using a computer network, such as the
internet. As a result, it mostly deals with business transactions that take
place through the internet. The e-commerce platform enables consumers to buy
and sell goods and services without regard for time or geography. E-commerce is
more than just using networked technologies to do business. It entails changing
work methods, reengineering business processes, and interacting with business
partners beyond traditional boundaries to move organisations to a fully
electronic environment. E-commerce has ushered in a sea change in the way
businesses are done. From paper-based transactions to totally computerised
organisations, there is a paradigm change underway. The key to the new paradigm
of globalisation of organisations and markets is networking and communicating
over networks. Information and communication technology (ICT) has ushered in a
new era of manufacturing. The Internet has facilitated market globalisation in
a smooth manner. Electronic commerce has grown at a remarkable pace over the
last five years, and this trend is expected to continue, if not accelerate. As
more businesses shift parts of their operations onto the Internet, the lines
between "traditional" and "electronic" trade will become
increasingly blurred in the near future.
Consumers are becoming more
vulnerable to new types of unfair commercial practises as ecommerce grows. Because the transactions are conducted over the internet,
the consumer is able
to inspect the goods and its quality. There have been cases where customers
have received products that were not what they had ordered. The delivery of goods and the return of products if they do not match the one presented,
as well as misleading ads, are some of the challenges in internet commerce,
particularly in online shopping. As a result, it is past time to safeguard
consumers' interests against
technological threats. A person who buys things or receives services in any
manner, including electronic mode, teleshopping, direct marketing, or
multilevel marketing, is now considered a consumer under
the new definition. As a result, anyone
who buys a product or uses or
hires services online falls under the definition of a consumer.
The
Ministry of Consumer
Affairs, Food &
Public Distribution of the Government of India has notified the (New) Consumer
Protection Act, 2019 (?Act') and the Consumer Protection (E- Commerce) Rules,
2020 (?Rules') to increase consumer protection on e-commerce and direct market
area. On July 20, 2020, and July 24, 2020, respectively, these legislative
modifications took effect. The Rules, in particular, require
e-commerce businesses to give all product and seller
information, as well as the establishment of a grievance officer to handle
consumer complaints and the acknowledgement of customer complaints within 48
hours. In addition to clear provisions that empower consumers, the Act and
Rules give enforcement authorities the authority to act quickly and
effectively.
CASE LAW:
In the of the
legal position, in Civil Appeal No.4307 of 2007, the findings of the National
Commission are set aside as far as it has held that the State
Commission can review its own orders.
After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which
the power of review or recall has vested with the National
Commission only. However,
we agree with the findings of the National Commission holding that the
Complaint No.473 of 1999 be restored to its original number for hearing in
accordance with law."
From the
perusal of the aforesaid judgment, it is clear, that the Consumer
Protection Act, 1986, did not vest the State Commission with the
power to review its own orders.
On the
contrary, the new Consumer
Protection Act, 2019 has empowered this Commission to review its own
orders under Section 50.
1. Horlicks
Ltd. v. Zydus Wellness
Products Ltd. (2020)
In this case,
both parties are manufacturers of nutritional drinks, however, Zydus advertised
a television commercial trivialising the products of Horlicks Ltd. The
commercial was being telecasted in various
languages including English,
Tamil and Bengali.
Therefore, the Delhi High
Court relied on various judgments on misleading advertisements, disparagement
and law governing the publication of advertisements on television and held that
the advertisement is disparaging as it does not provide any concrete proof
regarding the quality of the product.
Further,
electronic media leaves an impression on the
minds of the viewers thus, these
types of advertisements would not only be detrimental to the consumers but also the complainant would suffer irreparable damage.
A famous judgement relied on by Delhi High Court while deciding this case is Pepsi Co. Inc. v. Hindustan Coca Cola Ltd., 2003 where the Delhi High Court held that
there are certain important factors that are to be kept in mind in case of
disparagement which are; manner of the commercial, intent of the commercial and
storyline of the commercial.
In this case, the complainant offered
to purchase a flat from the respondent which the respondent agreed to deliver on 1.6.1999
through a letter. However, the flat was not constructed within the specified
date and hence it was not delivered. For such deficiency in services, the
complainant demanded the refund of the deposited amount with interest at the
rate of 18% pa which was refused by the opposite party.
The National Commission observed that due to
delays in construction and delivery of
possession it is quite difficult for a consumer to purchase a flat at market
price. The National Commission stated that it is the duty of the State
Commission to direct the builders to deliver the possession of the flat as soon as it is completed and
the complainant should be awarded suitable compensation for the delay in
construction. The complainant just claimed the refund amount before the State
Commission, but the case was pending before
the commission for five years and during that time there was a tremendous rise in the market prices of the immovable property. The National Commission further stated that it was the duty of
the State Commission to direct the respondents to deliver the possession of the
flat or any other flat of equivalent size to the complainant with appropriate
compensation, due to the delay in
delivering the possession within the specified time. Or, adequate
compensation ought to have been provided to the complainant so that they could purchase a new flat of the same size at the
prevailing market rate in that same locality.
[12].4. Sapient Corporation Employees vs Hdfc Bank Ltd. & Ors. on 1 November 2012 The
Apex court on 2nd
November,2020 dismissed the appeal of Imperia
structures limited Vs Anil Patni & Another against order passed by
the National Consumer Dispute Resolution Council when the jurisdiction of NCDRC to entertain the complaint in view of the registration under the Real Estate
Regulation Act (RERA) was subject matter of challenge The Apex Court held that
it has constantly been held that the remedies available under the provisions of
the Consumer Protection Act are additional remedies over and beyond those made available
so under special statutes;
and that the availability of a substitute remedy is no bar to entertaining a
complaint under the Consumer Protection Act. This decision will be useful in
all cases where builders do not provide flats, and it is recommended to file a complaint
with the consumer forum in addition
to Real Estate Regulation Act (RERA).
The case
decision was given by NCDRC (National Consumer Disputes Redressal Commission)
first; which was then challenged in the Hon‘ble Supreme Court with a question
of law consists; whether the case comes under the Consumer Protection Act,1986;
and whether both the Petitioner comes under the definition of Consumer in
Consumer Protec The case involved medical negligence. The question here is whether
or not a medical negligence case will fall under
the purview of the Consumer Protection Act of 1986.
The National
Consumer Disputes Redressal Commission held that since the resident doctor and
nurse were employees of the appellant hospital;
the latter was Liable and awarded compensation of Rs. 12.51 Lakh to the child and of Rs.5 lakh to the parents
for acute mental
agony. The Supreme Court
dismissed the appeal with costs of Rs. 5,000.
CONCLUSION
One of the
major achievements of the 2019 Act is its emphasis on the amicable settlement
of disputes through mediation, which helps in speedy and effective disposal of
cases. This would ensure that the law keeps in
pace with the ever-growing changes
in the contemporary society and result in a better protection of the
rights of consumers and ensuring timely justice.
The Consumer
Protection Act, 2019 is a modified piece of legislation that offers the consumers a great variety of benefits and rights to
protect them from unfair trade practices, false or misleading advertisements,
etc. The Act enables the consumers to seek alternative dispute resolution
mechanisms and mediation so that the parties can opt for speedy and effective
settlement of consumer disputes. The scope of e-filing of complaints and e-consumers in the Act portrays
forward-thinking in part of the legislature. Furthermore, the Act also
introduced new terms such as product liability, unfair contracts, etc. thereby widening the scope of protection of
consumer rights and enabling the consumers to file complaints when their rights
have been violated under the Act.
Thus, the inclusion of the provisions in this fills
up the lacunae in the Consumer Protection Act, 1986. The enactment
of the Act was paramount and it changed
the ambit of protecting the rights
of consumers in the country.
The CP Act
2019 has been crafted with the view to cater all varieties of consumer be it
online, teleshopping or offline;
suitable measures have been built
in to reduce misleading advertisement. The Act caters to the
needs of the online consumers and provides a speedier dispute mechanism for
grievance redressal and also provides an innovative method of resolving
disputes by way of mediation.
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Article Information
CONSUMER PROTECTION IN THE AGE OF E-COMMERCE
Authors: ADV. MAHESHWARI S. PATIL, MS. KAVITA R SANDBHOR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/29
- Issue 7
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International Journal for Legal Research and Analysis
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