More Web Consumer Protection
Most South African e-commerce customers have very little idea of their rights, or of the strong consumer protection that the ECT act gives them. Without doubt, a South African buying from a South African website will get far better consumer protection than if they bought the same thing in the real world over the shop counter.
So what is the consumer protection? Most of the consumer protection that the ECT act brings into play is to overcome the two main flaws of e-commerce, one the distance selling elements and secondly the anonymity of the World Wide Web. With regards to the distance selling, that is why the ECT act gives very strong return policy, so as to protect a consumer who receives goods that are very different to what he or she expected. This is referred to in the act as the cooling off period. The consumer is entitled to cancel “without reason and without penalty” should he or she so desire.
With regards to the anonymity factor, of doing business by means of electronic transfers on the web, the ECT act sets forth a long list of information that must be supplied by the supplier of goods or services on the website where such goods or services are offered. In this list is quite exhaustive, that covers all the essential information about a company, in a very similar manner to that prescribed by the companies act, as well as ensuring certain checks and balances such as giving the consumer a chance to review all contractual terms.
What is equally amazing is that so many of the South African e-commerce web sites themselves seem unaware of the law in this regard. Numerous web sites have terms and conditions that are directly in contradiction to the ECT act consumer protection and thus are invalid. For example a number of web sites state in their terms and conditions that they will charge a 20% (or similar) surcharge on the return of any goods. The ECT act states that where a website complies to the ECT act, any consumer may return the goods at no charge any time up to seven days after receipt of the goods. Where the website does not comply to the ECT act, then a consumer has the right to return the goods at no charge up to 14 days after receipt of the goods. Thus where the clause in the terms and conditions of an e-commerce web sites’ contract states that there will be a return surcharge, that clause would be invalid. The ECT act also states that no one may contract away from the protections offered by the act, and so any contractual term that contradicts the act is by nature invalid.
So what does this all mean?
1. No matter what the website says, you can always return the goods within seven days of receipt at no cost.
2. The supplier must refund you in full within 30 days
3. The supplier must send you the goods within 30 days, (unless you have agreed otherwise.)
4. If the supplier does not send the goods within 30 days you are entitled to a complete refund
5. The only cost that may be incurred by you is the cost of sending the goods back, the supplier may not charge you for anything else.
6. Within seven days of receiving the goods, you may return them for any reason whatsoever, and the supplier must refund you in full. (If the supplier's website does not comply to the ECT act, then you have 14 days to return the goods and the supplier must refund you in full)
7. The 7 or 14 days return period is calculated from the time you received the goods, not from when the supplier sent them! So he/she cannot claim your period has expired and he/she dispatched the goods months ago!
8. It is up to the supplier to make sure that any payment system that he/she uses is sufficiently secure, and if any loss is incurred by the consumer as a result of the security breach, the supplier is liable for that loss! So if a hacker gets your credit card number from the supplier, you can sue the supplier for your losses.
Hopefully as telecommunications liberalisation comes in, and more and more Web access takes place, we will see a rise in domestic e-commerce. It is safe, it is easy, and these days you are less likely to get hijacked, mugged, driven over by a taxi, by shopping on the Internet, than you are by going down to your local shopping mall.
For further information contact www.elc.co.za, and look in the consumer protection section.
The Electronic Law Consultancy (www.elc.co.za) offers the expertise of trained and certified (link to SABS or explanation) lawyers specialising only in electronic law, backed by practical and technical experience. Providing proactive legal advice that is clear and understandable, which both protects and enhances the efficiency of business communications. Utilising a business model and small business experience we are able to maintain our fees at levels well below the industry norm.
26 Jan 2005
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - firstname.lastname@example.org