Consumer Protection  Under ECT-2002- International Players Beware!
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[This is the fourth article in the series of articles discussing the provisions of ECT-2002, the draft Bill pending for passage in South Africa.]

The need to apply Cyber Laws over many of the existing set of laws has been addressed by the Indian ITA-2000 with a "Bridging Provision" stated under Section 4for electronic documents and Section 5 for signatures.

By virtue of these sections, wherever any law of the country operates and refers to documents in "Writing", such laws will continue to operate even when the document is not in "Writing" but in "Electronic form".

Thus, provisions of the Consumer Protection Act will also be applicable for electronic transactions to the extent that those provisions that apply to "Writing" and "Signature" will be replaced by "Electronic Documents" and "Digital Signatures".

While for the practical purpose of invoking the law, this is sufficient, in any case of violation, the act invoked for primary prosecution is the relevant Consumer Protection Act and would be constrained by the jurisdictional restrictions contained therein.

The ECT-2002 has by passed this problem by being specific on some of the aspects that are related to Electronic Transactions and avoided some ambiguity.

Under Chapter 7 of the ECT, the following issues are covered.

a) Need for relevant information to be made available to Consumers

b) Provision for Return of goods bought

c) Unsolicited marketing Spam

d) Application in International scenario.

Under Section 44, apart from listing the type of information that needs to be provided before any sale, the act stipulates that " the supplier must provide an opportunity for the consumer to review the entire transactions, correct any mistakes and withdraw from the transactions before placing the order."

It also mandates that the supplier must use  a payment system that is sufficiently secure with reference to accepted technological standards at the time of the transaction and the type of transaction concerned.

Besides, under Section 45, it provides a "Cooling off period" of seven days, when the Customer can cancel his order and the supplier bound to return the cost within 30 days. Certain exceptions to this provision is stated in Section 44.( Such exceptions include perishables and unleashing of software and commencement of service). Similarly, if the order is not fulfilled as per the terms of the contract, the refund has to be effected within 30 days.

The protection applicable under this section will be available to the consumer irrespective of the law prevailing in the country of the supplier. The application of the act cannot be over ruled by any agreement to the contrary by the seller.

In view of the provisions of the Act  any foreign company including an Indian Company, dealing with a citizen or resident of the republic will have to consider itself bound by it not withstanding the "Terms and Conditions" drafted by its own lawyers for its web site.

While the intentions behind this jurisdictional freedom assumed by the act is laudable, it could be a source of frequent international disputes when the seller takes shelter under the provisions of his country's consumer laws which are at variance with the ECT-2002.

Naavi

March 16, 2002

Related Articles:

 E-Governance Through Legislation-Contrasting Styles ITA-2000 and ECT 2002

Governance of the Domain Space ECT2002 Vs ITA-2000

Crimes Under ECT-2002 ..Shades of DMCA ?


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