Robin Simpson

Robin Simpson, Consumers International’s Senior Policy Advisor discusses the recently revised OECD E-commerce guidelines and their implications for consumers.

The OECD published its revised E-commerce guidelines at the end of March. They form a useful outline for any regulator that is developing work in this area and a good starting point for consumer groups that want to evaluate the protection offered to online consumers in their country.

First issued in 1999 after negotiation by the OECD’s Committee on Consumer Policy in which Consumers International (CI) participated, (and still does) the guidelines have made an important contribution to consumer protection, on issues such as unfair contract terms, transparency of contracts and transactions, dispute resolution machinery, all of which CI supported.

The new guidelines contain some important additions, they extend to mobile transactions, digital content, non-monetary transactions (such as exchange of personal data), online consumer reviews and C2C platforms. The guidelines in both their 1999 and 2016 versions, are underpinned by the ‘equivalence principle’ that consumers using e-commerce should have the same level of protection as in other forms of commerce. This matters, as CI’s 2013 global survey found that online transactions often received less protection, as national legislation struggled to keep up.

CI concentrated on two key issues during the four years of negotiation:

Limited liability for consumers in the event of unauthorised or fraudulent charges. This was already recommended in the 1999 version which endorsed ‘chargeback mechanisms’ such as credit card guarantees. We argued successfully for the extension of OECD recognition to ‘escrow’ which parks consumers’ payments with third party intermediaries, such as Alipay in China, which does not release the consumer’s payment until the goods have been delivered and inspected. Such services have existed for centuries and are now spreading rapidly again through e-commerce. The OECD endorsement of limited liability was important for CI in our negotiations in ISO for a standard on mobile payments. We are happy to see it reaffirmed and extended.

A far less happy outcome relates to digital products where we have long argued in OECD that copyright protection should not extend to disabling a consumer’s computer or other terminal through ‘technical protection measures’, a practice which currently works through software implants, often unbeknown to consumers, who may have inadvertently breached their lease contracts.

We argued that if such measures are permitted, they should at least be guided by the principle of proportionality: if I park my car by mistake in your parking bay that does not give you the right to wreck it. The committee failed to reach consensus on this proposal – one delegate described it as ‘too new’ even though the principle of proportionality was spelt out in the Magna Carta, the foundation of English law, in 1250.

The only protection offered by the guidelines is a very indirect suggestion that warning be given in the product/contract information. Yet it is well known that almost no-one reads end user licence agreements – they ‘tick, click and hope for the best’. 

Also disappointing to CI is brevity and vagueness of the articles on security and privacy. The guidelines ‘refer out’ to other guidelines such as those on Privacy, which will not necessarily be available to the reader. Yet security issues still inhibit many consumers especially regarding cross-border transactions. As governments continue to fail to reach agreement on ‘applicable law and jurisdiction’, (jargon for which country’s law should be applied) then, faced with insecurity, consumers will flock to third party intermediaries.

The recently revised OECD guidelines on ‘Consumer Protection in E-commerce’ address recent developments in technology and e-commerce. One emerging area CI has conducted research on is in relation to the Internet of Things and challenges for consumer protection http://consint.info/IoTReportNews 

This article is a reprint from the Consumers International Blog website, available here: http://consumersinternational.blogspot.com.au/2016/04/oecd-e-commerce-guidelines-step-forward.html

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