Online shopper be aware! – What rules and regulations apply?
Provided by SchoemanLaw Inc
SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public, based in Cape Town, is a boutique law firm offering its clients access to high quality online legal d... more
Topics Consumer Protection | Social Media Law | Technology Law
19 May 2020
Online shopping, whether it be for goods or services, has segmented its own small part of our reality in recent years. Be it browsing a catalogue or reacting to a social media post of a person complaining that they didn’t get what they paid for; most people are at least familiar with the concept of an online purchase.
If you have never made an online purchase, you might have been put-off by the myriad of posts and horror stories of “…I thought I was buying a phone but it was the cover that they were advertising…” or “…It’s a lot smaller than it looked in the picture…”.
However, before writing off online shopping as strange and all too risky, let us consider the laws and regulations that may apply to it.
Legal and Regulatory Framework
The Consumer Protection Act 68 of 2008 (hereafter “CPA”), provides a start from which we may derive certain rights and obligations which apply to online shopping.
In terms of the CPA, consumers have the right to inspect and examine goods. In the context of online shopping, this may appear to be a right in words only. Reality dictates that an online shopper is not going to be able to inspect a laptop screen for hairline cracks or flip a box of cornflakes to check for an expiry date.
Be that as it may, suppliers of goods and services are obligated in terms of the CPA to provide full and comprehensive information about the products and services they offer. Furthermore, an online purchase may be inspected upon delivery and, purchasers will still be afforded the opportunity to change their minds.
Other protections afforded by the CPA is supplier liability for defective goods or goods which cause harm or loss to the purchaser as well as the general obligations on suppliers to ensure the quality of their goods.
However, although providing the basis for most consumer-based rights and obligations, there are certain instances, in the ambit of online shopping, where consumer rights as reflected in the CPA do not apply.
According to the Consumer Goods and Services Ombud (hereafter “CGSO”); certain sections of the CPA do not apply to e-commerce transactions.
The CGSO has indicated that the CPA provisions in respect of cooling off periods after direct marketing; consumer rights in respect of the delivery of goods and the supply of services; disclosure of price, sales records and catalogue marketing do not apply to online shopping transactions.
Instead, consumers may turn to the Electronic Communications and Transactions Act 25 of 2002 (hereafter “ECTA”).
The ECTA provides for a cooling off period for direct marketing transactions and sets out the circumstances under which transactions may be cancelled in respect of same. It further sets out the circumstances under which credit agreements may be cancelled and provides general rights and obligations in respect of the delivery and supply of goods amongst others.
Another important provision of the ECTA in respect of online shopping, is the provision which requires suppliers to disclose pertinent information which allows consumers to make informed choices. The ECTA provides that a supplier must provide full details in respect of their business and characteristics of their goods and services amongst others. It also dictates that consumers must be afforded the opportunity to review their transactions.
It is important to read the provisions of the CPA and the ECTA in conjunction with one another.
The CPA, in certain instances, specifically states where the ECTA applies. It furthermore appears, that the CPA may be relied upon in instances where the ECTA is silent but the CPA is not.
Online shopping does not only pose the risks of potentially defective goods and the occasional impulse buy. Most online shoppers are not only concerned with the possibility of not being able to return an item or getting their money back for a mistaken purchase.
Other concerns are the potential risks of suppliers and retailers, using and disseminating private consumer information that are required inputs when making a purchase.
Online shopping transactions usually require inputs of certain financial information as well as personal information in respect of point of delivery, names and age.
Potential protection for the online shopper in respect of private information, may be found in the Protection of Private Information Act 4 of 2013 (“POPI”) along with ECTA, which provide that information provided by consumers during online shopping transactions, are only to be used for the purposes that they were requested for and, that the consumer in turn authorised.
Be that as it may, it is prudent that consumers are aware of the conduct that they allow and authorise, in respect of their private information, when shopping online.
As with any purchase, it is important to familiarise yourself with a product, service provider and vendor prior to the transfer of funds. It cannot be argued that there are certain automatically implied risks in respect of online shopping.
However, it also cannot be argued that online shopping allows for a certain level of ease and comfort that a trip to the mall simply cannot provide.
We are facing a world that is growing day by day into an online and tech-based-service universe. It is therefore important for consumers to acclimatise themselves with the protective mechanisms available to them in respect of online shopping, so that they properly prepare themselves for the risks involved and make informed choices.
Contact an attorney at SchoemanLaw Inc for your online consumer needs.
- Directions regarding e-commerce sales during alert level 4 released
- How counterfeiters are using the Covid-19 pandemic to their benefit
Raeesa Ebrahim Atkinson obtained her Batchelors of Law (LLB) degree from the University of the Western Cape in 2015. While at University she was a member of the Top 40... Read more about Raeesa Ebrahim Atkinson