If you knew your rights as a consumer in a society such as in South Africa, where a large number of people rely on the internet in unprecedented ways to make their lives easier and save time and costs, you would be surprised by the number of times that such rights are violated regardless of their extensive statutory protection.
The Electronic Communications and Transactions Act of 2002 (the “Act”) protects internet consumers who take part in e-commerce transactions. Protection of the consumers under the Act applies notwithstanding the legal system applicable to the transaction. Parties may further not enter into an agreement to exclude rights conferred by the Act and any such exclusionary provision in a contract is void.
The Act lists a number of electronic transactions that are excluded from the application of the Act. These include transactions relating to financial services e.g. investment services, insurance and reinsurance operations, banking services and operations relating to dealing in securities. The Act also does not apply to transactions involving auctions, supply of foodstuffs, beverages or any other goods intended for daily use, where the price for supply of the goods or services is dependent on market fluctuations and which cannot be controlled by the supplier. The consumer is not protected where his/her goods have been made to specifications, are clearly personalised, by reason of their very nature cannot be returned (e.g. underwear) or are likely to expire rapidly. Also excluded are transactions involving a sale of newspapers, periodicals, magazines, and books, the provision of gaming and lottery services or supply of accommodation, transport, catering or leisure services. Where audio or video recording or computer software are unsealed by the consumer, the protection will also not apply.
The supplier must provide certain information to enable the consumer to be able to easily exercise and enforce his/her rights. This information must be available on the supplier’s website whether such supplier supplies goods or services. This includes the supplier’s full contact details including its name and legal status. In case of a legal person, the supplier must also provide the registration number and a place of registration and an address where legal process may be served. To enable the consumer to make an informed decision, full details of the goods or services must be included on the website. This includes providing details on the characteristics of the goods, the full price, including transport costs, taxes and any other cost, the manner of payment and the manner of accessing and printing terms and conditions and the record of the transaction. If there is a dispute resolution code that the supplier subscribes to, this information must also be made available. The supplier must also indicate the security procedures and privacy policy in respect of payment including security procedures with regards to payment information and personal information. The consumer must be provided with an opportunity to review the entire transaction, correct any mistakes or to withdraw from the transaction during the period referred to below. The supplier is liable for any prejudice suffered by the consumer resulting from failure by the supplier to utilise a payment system that is sufficiently secure with reference to accepted technological standards at the time of the transaction.
When the consumer cancels the transaction, restitution must take place subject to the supplier’s right to deduct the direct cost of returning the goods. The consumer must be allowed a cooling-off period within which to cancel the transaction without penalty or reason. A transaction for the supply of goods can be cancelled within 7 days of receipt of the goods and within 7 days after date of the conclusion of an agreement for the supply of services. If any payment has been made for the goods or services, the consumer is entitled to a full refund of such amount within 30 days from the date of cancellation. The consumer is entitled to the remedies provided by the Act, over and above the legal rights which the consumer has. The Act protects consumers from unsolicited goods, services or communications. A consumer must be provided with an option to cancel his or her subscription to the mailing list of the sender. He or she must be provided (on request) with identifying particulars of the source from which that person obtained the consumer’s personal information. No agreement is concluded where the consumer has failed to respond to an unsolicited communication. A person who persists in sending unsolicited communications after being told that they are unwelcome, is guilty of an offence for which penalties are payable on conviction. A consumer may lodge a complaint with the Consumer Affairs Committee described in the Act, in respect of any violation.
Although traditionally consumers would feel more secure when transacting with a supplier that they can physically identify, the provisions of the Act in fact appear to give consumers greater protection in internet transactions than in face to face dealings.
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