Consumer Protection across BRICS countries

Scope

1. What national laws (or other types of normative acts) regulate consumer protection?

Brazil

Consumer protection is regulated by the Consumer Protection
Law (Código de Defesa do Consumidor, 8078/1990). Decree 7962/13 is regulating electronic commerce.

Russia

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights” Civil Code of the Russian Federation (Part One) of 30.11.1994 N 51-FZ (as amended on 08/03/2018, entered into force on
01.01.2019).
Civil Code of the Russian Federation (Part Two) dated January 26, 1996 N 14-FZ(as amended on 29.07.2018, entered into force on 30.12.2018).
Civil Code of the Russian Federation (part three) dated 26.11.2001 N 146-FZ (as amended on 08/03/2018, entered into force on 01.09.2018).
Civil Code of the Russian Federation (Part Four) dated December 18, 2006 N 230-FZ (as amended on 23.05.2018).

“Consultant Plus” Legal Reference System.

India

In August 2019, the Consumer Protection Act, 2019 was adopted, which will replace earlier legislation from 1986. Draft Consumer Protection (e-Commerce) Rules, 2019, made under section 101 of the Consumer Protection Act, were made available for public consultation in November 2019. The draft National E-Commerce Policy 2019, too, has sections that are of relevance. Existing sectoral regulation such as the Food Safety and Standards Act, 2006, continues to apply as well.

China

The following laws and policies regulate consumer protection:

National-level laws:

Law of the People’s Republic of China on the Protection of Consumer Rights and Interests (passed in 1994, amendments in 2009 and 2013);
Advertising Law of the People’s Republic of China (passed in 1995, revisions in 2015);
E-Commerce Law of the People’s Republic of China (2018).

Judicial opinions:

Ten Model Cases Involving the Protection of Consumer Rights Issued by the Supreme People’s Court (2014);
Ten Model Cases of Consumers’ Rights Protection Published by the Supreme People’s Court (2015);
Eight Model Cases involving Procuratorial Organs’ Cracking down on Crimes Infringing on Consumers’ Rights and Interests Published by the Supreme People’s Procuratorate (2019).

Administrative regulations:

Guiding Opinions of the General Office of the State Council on Strengthening the Protection of Financial Consumers’ Rights and Interests (2015);
Letter of the General Office of the State Council on Approval of the Establishment of the Inter-Ministerial Joint Meeting System for the Protection of Consumer Rights and Interests (2016).

South Africa

Electronic Communications and Transactions Act, 2002. National Consumer Protection Act, 68 of 2008.

2. Is the country a party of any international consumer protection agreement?

Brazil

Brazil is part of the Santa Maria Protocol of the MERCOSUL which was signed in 1996 but not ratified, yet. Brazil has signed the Montreal Convention (international carriage by air) and the Warsaw Convention of 1929.

Russia

Agreement on the main areas of cooperation of the States members of the Commonwealth of Independent States in the field of consumer protection (concluded in Moscow on 25.01.2000). Protocol on Amendments to the Agreement on the Main Directions of Cooperation of the States Parties of the Commonwealth of Independent States in the Field of Consumer Protection of January 25, 2000 (Together with the Regulations on the Consultative Council on Consumer Rights Protection of the CIS Member States). Signed in Minsk on 19.05.2011.

“Consultant Plus” Legal Reference System.

India

Since 2009, India is a party to the Convention for the Unification of Certain Rules for International Carriage by Air (also known as the Montreal Convention).

China

The China Consumer Association joined the non-for-profit international organization – International Organization of Consumers Unions – in 1987. As a UN member state, China abides by the United Nations Guidelines on Consumer Protection (2016).

South Africa

No.

3. To whom do consumer protection laws apply?

Brazil

The consumer protection law applies to physical and legal persons.

Russia

The subjects of legal relations in the field of consumer protection are citizens who have the intention to order or purchase or ordering, purchasing or using goods (works, services) solely for personal, family, household and other needs not related to entrepreneurial activities, and business entities (organisations regardless of their organisational and legal form, as well as individual entrepreneurs), acting as sellers, manufacturers, performers or importers on consumer market.

Review of the practice of courts hearing cases on consumer protection disputes related to the sale of goods and services (approved by the Presidium of the Supreme Court of the Russian Federation on 17.10.2017).

India

The 2019 Act extends to the whole of India, except Jammu and Kashmir. The draft e-Commerce Rules are intended to regulate every e-commerce entity carrying out or intending to carry out e-commerce business in India as well as sellers selling or advertising their products or services through an e-commerce platform. Entities or businesses notified otherwise by the government are excluded.

China

The Law of the PRC on the Protection of Consumer Rights and Interests (1994) applies to consumers and business operators. The Advertising Law of the People’s Republic of China applies to business operators and service providers that advertise their products and services. The E-Commerce Law (2018) applies to e-commerce activities in Chinese territories.

South Africa

Chapter VII the consumer protection provisions in the ECTA only apply to electronic transactions. They apply to consumers and suppliers.

Section 43. (1) A supplier offering goods or services for sale, for hire or for exchange by way of an electronic transaction must make the following information available to consumers on the web site where such goods or services are offered

Section 5 of the CPA provides that the act applies to every transaction between a consumer and supplier occurring within the Republic subject to some exemptions such as transactions in terms of good or services supplied to the state [Section 5(2)] or industry wide exemptions applied for by a regulatory authority to the Minister [Section 5(3)].

4. Do the laws apply to foreign entities that do not have physical presence in the country?

Brazil

The law refers to foreign actors for example as producers or distributor [Art. 3, Art. 12] but has no specific reference to actors located outside the Brazilian jurisdiction.

Russia

The parties to the contract may, at the conclusion of the contract or subsequently select, by agreement among themselves, the law to be applied to their rights and obligations under the contract.

The choice of the applicable law to the contract to which the consumer is a party cannot entail depriving an individual (consumer) of his rights protection provided by the mandatory rules of the law of the consumer’s country of residence if the
consumer’s counterparty (professional party) operates in the country of place residence of the consumer or by any means directs its activities to the territory of this country or the territory of several countries, including the territory of the country of
residence will consume ate, provided that the contract is related to such activity of the professional party.

In the absence of agreement of the parties on the applicable law and in the circumstances specified above, the law of the country of residence of the consumer shall apply to the contract with the participation of the consumer.

The choice of the applicable law to the contract with the participation of the consumer cannot entail depriving the consumer of the protection of his rights provided by the mandatory rules of the country whose law would apply to this contract without the parties’ agreement on the choice of law.

Civil Code of the Russian Federation (part three) dated 26.11.2001 N 146-FZ (as amended on 08/03/2018, entered into force on 01.09.2018).

India

The draft e-Commerce Rules require all e-commerce entities that seek to carry out e-commerce business in India toregister as a legal entity under the laws ofIndia.

China

No.

South Africa

Not directly. According to the rules of jurisdiction of the courts, a foreign entity would be held liable only as far as the effects of the conduct is felt in the Republic.

Section 90(b) any act of preparation towards the offence or any part of the offence was committed in the Republic, or where any result of the offence has had an effect in the Republic.

Section 5(8) of the CPA provides that the provisions in the act apply to a matter irrespective of whether the supplier resides or has principal office within or outside the Republic.

Definitions

5. How is consumer protection defined?

Brazil

The law does not provide a definition of consumer protection.

Russia

Consumer protection refers to the relationship between consumers and manufacturers, performers, importers, sellers, owners of aggregators of information about goods (services) in the sale of goods (performance of works, rendering services). The law establishes the rights of consumers to purchase goods (works, services) of adequate quality and safe for life, health, property of consumers and the environment, obtaining information about goods (works, services) and their manufacturers (performers, sellers), owners of information aggregators about goods (services), education, state and public protection of their interests, and also determines the mechanism for the realisation of these rights.

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights”.

India

Neither the Consumer Protection Act nor the draft e-Commerce Rules define consumer protection.

China

The Law of the PRC on the Protection of Consumer Rights and Interests (1994) declares that: “The State shall protect consumers’ legal rights and interests against infringement.”

South Africa

The term consumer protection is not defined.

6. How are consumers defined?

Brazil

The law defines consumers as physical or legal persons who acquire products or services as final receivers.

Russia

Consumer – a citizen who has the intention to order or purchase or ordering, purchasing or using goods (works, services) solely for personal, family, household and other needs not related to the business.

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights”.

India

The Consumer Protection Act defines a’ consumer’ as any person who buys any goods or hires or avails of any service for a consideration, including where this has been paid or promised only in part or where it is bought under a system of deferred payment. It includes any user of the good and any beneficiary of the service other than the person who buys the good or hires the service, where such use is made, or such service is availed of with the approval of the buyer. It does not include a person who buys such goods or avails of such service for resale or for any commercial purpose, except if the latter refers to the purpose of earning his livelihood, by means of self-employment.

China

The Law of the PRC on the Protection of Consumer Rights and Interests (1994, with 2013 amendment) does not clearly define “consumer.” In most circumstances, the law applies to natural persons within Chinese territory, not companies or legal persons.

South Africa

ECTA, Section 1: Definitions:

“consumer” means any natural person who enters or intends to enter into an electronic transaction with a supplier as the end user of the goods or services offered by that supplier;

CPA, Section 1: Definitions:

‘‘consumer’’, in respect of any particular goods or services, means: (a) a person to whom those particular goods or services are marketed in the ordinary course of the supplier’s business; (b) a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business, unless the transaction is exempt from the application of this Act by section 5(2) or in terms of section 5(3); (c) if the context so requires or permits, a user of those particular goods or a recipient or beneficiary of those particular services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods or services; and (d) a franchisee in terms of a franchise agreement, to the extent applicable in terms of section 5(6)(b) to (e);

7. How are providers and producers defined?

Brazil

The law defines providers as physical or legal persons, public or private, national or foreign, who produce, assemble, create, construct, transform, import, export, distribute or commercialize
products or services.

Russia

Manufacturer – an organisation regardless of its organisational and legal form, as well as an individual entrepreneur, producing goods for sale to consumers; contractor – an organisation, regardless of its organisational and legal form, as well as an individual entrepreneur performing work or providing services to consumers under a paid agreement; the seller is an organisation regardless of its organisational and legal form, as well as an individual entrepreneur who sells goods to consumers under a purchase and sale agreement.

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights”.

India

The Consumer Protection Act defines an ‘electronic service provider’ as ‘a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online marketplace or online auction sites’. A ‘product service provider’, in relation to a product, means ‘a person who provides any service in respect of such product’.

The Consumer Protection Act does not define ‘producer’, but ‘manufacturer’ and ‘product manufacturer’. A ‘manufacturer’ is ‘a person who (i) makes any product or parts thereof; or (ii) assembles parts thereof made by others; or(iii) puts or causes to be put his own mark on any products made by any other person’. A ‘product manufacturer’ is defined as a person who does any of the above or ‘(iv) makes a product and sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains such product or is otherwise involved in placing such product for commercial purpose; (v) designs, produces, fabricates, constructs or re-manufactures any product before its sale; or (vi) being a product seller of a product, is also a manufacturer of such product’.

China

The Law of the PRC on the Protection of Consumer Rights and Interests (1994, with 2013 amendment) does not provide an explicit definition for providers or producers. In the context of the law, a provider or producer is “a business operator providing a commodity or service to a consumer.”

South Africa

ECTA, Section 1: Definitions:

“certification service provider” means a person providing an authentication product or service in the form of a digital certificate attached to, incorporated in or logically associated with a data message;

CPA, Section 1: Definitions:

‘‘producer’’, with respect to any particular goods, means a person who:

(a) grows, nurtures, harvests, mines, generates, refines, creates, manufactures or otherwise produces the goods within the Republic, or causes any of those things to be done, with the intention of making them available for supply in the ordinary course of business; or
(b) by applying a personal or business name, trademark, trade description or other visual representation on or in relation to the goods, has created or established a reasonable expectation that the person is a person contemplated in paragraph (a);

‘‘importer’’, with respect to any particular goods, means a person who brings those goods, or causes them to be brought, from outside the Republic into the Republic, with the intention of making them available for supply in the ordinary course of business;

“distributor”, in relation to any particular goods, means a person who, in the ordinary course of business:

(a) is supplied with those goods by a producer, importer or other distributor; and

(b) in turn, supplies those goods to either another distributor or to a retailer;

There are no provisions specific to consumer protection in the definition. The CPA applies to all transactions therefore it would be understood that the rights enjoyed in the ‘terrestrial’ sphere would be enjoyed in the digital sphere.

8. Does the law provide any specific definitions with regards to consumer protection in the digital sphere?

Brazil

The law does not contain definitions regarding the digital sphere.

Russia

Selling goods remotely–selling goods under a retail sale contract concluded on the basis of the buyer’s familiarisation with the description of the goods offered by the seller, contained in catalogues, brochures, booklets or presented on photographs or using postal networks, telecommunications networks, including information and telecommunications network “Internet”, as well as communication networks for broadcasting TV channels and (or) radio channels, or in other ways, excluding the possibility of direct familiarisation of the buyer with the goods or sample of goods at the conclusion of such acontract.

Law of the Russian Federation of 07.02.1992 N 2300-1(as amended on 18.03.2019) “On Protection of Consumer Rights”. Decree of the Government of the Russian Federation of 27.09.2007 No.612 (as amended on 04.10.2012) “On the approval of the Rules for the sale of goods by remote means”.

India

In the Consumer Protection Act, 2019, as compared to the 1986 Act, a number of definitions have been included or expanded to address consumer protection in the digital sphere. For example, the law states explicitly that where the expressions ‘buys any goods’ and ‘hires or avails any services’ is used in the definition of ‘consumer’, this includes offline or online transactions through electronic means. In addition, the definition of ‘advertisement’ includes any audio or visual publicity, representation, endorsement or pronouncement made by means of electronic media, internet or website. The definition of ‘unfair trade practices’ includes permitting the publication of advertisements, whether in any newspaper or otherwise, including by way of electronic record, for the sale or supply at a bargain price of goods or services that are not intended to be offered for sale or supply at the bargain price, or not for a period and in quantities that can be considered reasonable seeing the nature of the market, business and advertisement. The law also defines ‘e-commerce’.

The draft e-Commerce Rules further define ‘e-commerce entity’, ‘inventory-based model of e-commerce’ and ‘market-based model of e-commerce’. Definitions of ‘electronic record’ and ‘information’ in the draft Rules have been replicated from the Information Technology Act.

China

Article 25 and 28 of the Law of the PRC on the Protection of Consumer Rights and Interests (1994, with 2013 amendment) acknowledge the increasing frequency of online transactions and provide general guidelines for business operations and resolutions of related disputes, but it does not provide specific definition with regards to consumer protection in the digital sphere.

The new E-commerce Law (2018) extends the protection of
consumer rights and interests to e-commerce activities in
Chinese territory. It defines a number of relevant concepts
including “e-commerce,” “e-commerce operators,” “e-commerce
platform operators,” “operators on platform” who are accorded
different rights and obligations.

South Africa

No. The focus of the provision is to protect consumers in the case of electronic transactions regardless of whether the goods or services sold or bought online. There are no provisions specific to consumer protection in the definition. The CPA applies to all transactions therefore it would be understood that the rights enjoyed in the ‘terrestrial’ sphere would be enjoyed in the digital sphere.

Rights

9. Is the consumer protection law based on fundamental rights (defined in Constitutional law or International binding documents)?

Brazil

Yes, the consumer protection law refers do articles 5, 48, 170 of the Brazilian Constitution.

Russia

The legal basis for consumer protection is the Constitution of the Russian Federation, Federal laws, regulations of the President of the Russian Federation and the Government of the Russian Federation, as well as the United Nations Guidelines for Consumer Protection adopted by the United Nations General Assembly on December 22, 2015, by resolution N 70/186. According to the Constitution of the Russian Federation, the state protection of the rights and freedoms of man and citizen in the Russian Federation is guaranteed. Everyone has the right to protect their rights and freedoms by all means not prohibited by law. In addition, everyone is guaranteed judicial protection of his rights and freedoms. Decisions and actions (or inaction) of state authorities, local governments, public associations and officials may be appealed in court. Everyone has the right, in accordance with the international treaties of the Russian Federation, to apply to interstate bodies for the protection of human rights and freedoms if all available domestic remedies have been exhausted.

The Constitution of the Russian Federation (adopted by popular vote on 12/12/1993, as amended by the laws of the Russian Federation on amendments to the Constitution of the Russian Federation of 12/30/2008 N6-FKZ, of 12/30/2008 N7-FKZ, of 05.02.2014 N2-FKZ, dated 07.21.2014 N11-FKZ). Order of the Government of the Russian Federation of 28.08.2017 N1837-p on approval of the Strategy of the state policy of the Russian Federation in the field of consumer protection for the period until 2030.

India

Neither the Consumer Protection Act nor the draft e-Commerce Rules explicitly address this question.

China

Neither the Law of the PRC on the Protection of Consumer Rights and Interests (1994, with 2013 amendment) nor the new E-commerce Law (2018) references the Chinese Constitution or other international binding documents. However, as a UN member state, China abides by the United Nations Guidelines on Consumer Protection (2016). The drafting of the new E-commerce Law also invited commentary from the United Nations Commission on International Trade Law (UNCITRAL), United States, European Union, Germany, Singapore, Japan etc.

South Africa

The ECTA has not specified any fundamental rights.

The preamble of the CPA provides that it seeks to redress the injustices of Apartheid by developing and employing innovative means to:

(a) fulfil the rights of historically disadvantaged people and to promote their full participation as consumers;
(b) protect the interests of all consumers, ensure accessible, transparent and efficient redress for consumers who are subjected to abuse or exploitation in the marketplace; and
(c) to give effect to internationally recognised customer rights;

10. What are the rights of the consumer defined by the law with reference to digital good and services?

Brazil

The consumer protection law does not refer to rights of the consumer in reference to digital goods and services. However, decree 7962/13 (e-commerce law) states that consumershave the right to choose [Art. 4] and the right of withdrawal [Art. 5].

Russia

The consumer has the right to refuse to pay for such works (services), and if they are paid for, the consumer has the right to demand the seller to return the amount paid. The consumer has the right to refuse the goods at any time before its transfer, and after the transfer of the goods – within 7 days. If information on the procedure and deadlines for returning goods of good quality was not provided in writing at the time of delivery of the goods, the consumer has the right to refuse the goods within 3 months from the moment of transfer of the goods.

If there are defects in the goods for which no warranty or expiration dates have been established, the consumer has the right to make demands regarding the defects of the goods within a reasonable time, but within 2 years from the date of transfer to the buyer, if law or contract does not establish longer periods. The consumer also has the right to make claims to the seller regarding the defects of the goods, if they are found during the warranty period or shelf life.

The consumer to whom the product of inadequate quality is sold, if this has not been stipulated by the seller, has the right to demand at its choice: a) free elimination of defects in the goods or reimbursement of the costs of their correction by the buyer or a third party; b) a commensurate reduction in the purchase price; c) replacement for a product of a similar brand (model, article) or for the same product of another brand (model, article) with a corresponding recalculation of the purchase price. At the same time with respect to technically complex and expensive goods, these requirements of the buyer are subject to satisfaction in case of detection of significant shortcomings.

The consumer has the right to refuse to perform the contract and to demand the return of the amount paid for the goods. At the request of the seller and at his expense, the consumer must return the goods with defects.

The consumer also has the right to demand full compensation for damages caused to him because of the sale of goods of inadequate quality. Losses are reimbursed in the terms established by law to meet the relevant requirements of the buyer. If the seller refuses to transfer the goods, the consumer has the right to refuse to perform the contract and demand compensation for the losses caused.

The consumer is not entitled to refuse the goods of good quality, which has individually defined properties, if exclusively the consumer acquiring it can use the specified goods.

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights”. Decree of the Government of the Russian Federation ofSeptember 27, 2007 No. 612 (as amended on 04.10.2012) “On the approval of the Rules for the sale of goods by remote means”.

India

The Consumer Protection Act only defines consumer rights in a general manner, to include the following:

the right to be protected against the marketing of goods, products or services which are hazardous to life and property;
the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices;
the right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices;
the right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate fora;
the right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and
the right to consumer awareness.

The draft e-Commerce Rules do not explicitly address the rights of the consumer.

China

Article 25 of the Law of the PRC on the Protection of Consumer Rights and Interests (2013 amendment) excludes the return of digital goods and services from the list of commodities that can be returned within 7 days of transactions.

Article 2 of the E-commerce Law of the PRC (2018) specifies that: “This Law shall not apply to financial products and services, or services providing news and information, audio and video program, publication and cultural products through information network.” The law covers tangible goods sold online as well as certain digital goods and services such as software, apps or platforms (e.g. ridesharing, online payment). Presumably the transaction of digital content products such as online news, e-books, digital music, and online games falls under the E-commerce Law (2018), whereas the legitimacy of digital content to be made available to consumers is under the purview of content regulators like CAC orSARFT.

Various articles of the E-commerce Law of the PRC (2018) declare to protect a wide range of consumer rights and interests such as (only a sample):

the right to accurate information and selection of products and services (Article 17),
the right to search results of products and services not based on consumer characteristics (Article 18),
the right to having bundled goods or services as an option rather than as a default (Article19),
the right to agreed-upon modes and means of delivery of goods and services with online sellers and platforms (Article 20),
the right to refund of deposits (Article 21),
the right to safety, accuracy, correction, removal of personal information (Articles 23, 24, and 25),
the right to easy access to service agreements and transaction rules on e-commerce platforms (Article 33),
the right to provide feedback to amendments to platform agreement and transaction rules (Article 34),
the right to personal and property safety, free from harm as a result of platform operators knowingly selling faulty goods or products (Article 38),
the right to product or service reviews where platforms are forbidden to remove customer reviews (Article 39),
the right to “advertised” products or services clearly labelled in search results displays (Article 40),
the right to clear, comprehensive and accurate information about establishing a contract (Article 50).

South Africa

ECTA makes provisions for goods and services purchased through electronic transactions.

Section 43(2): The consumer has the right to review the entire electronic transaction; to correct any mistakes; to withdraw from the transaction, before finally placing any order.

Section 43(3): If the consumer does not provide the consumer with the information provided for in section 43(1) and the opportunity provided for in section 43(2), the consumer has the right to cancel the right to cancel the transaction within 14 days of receiving the good or services under the transaction.

Section 44(1): It provides that a consumer is entitled to a cooling off period which means that he or she has the right to cancel without reason and without penalty any transaction and any related credit agreement for the supply of goods or services within seven days of conclusion of the agreement.

The consumer is also entitled to a full refund within 30 days of cancellation if the consumer made the payment before he or she could exercise the right of a cooling off period. However, these rights do not apply to electronic transactions specified in section 42.

The CPA does not have specific provisions for digital goods and services therefore it is understood that all the rights that are afforded in the terrestrial sphere will be afforded to digital services.

Chapter 2: Fundamental Consumer Rights

Part A: Right of equality in consumer market

Part B: Consumer’s right to privacy

Part C: Consumer’s right to choose

Part D: Right to disclosure and information

Part E: Right to fair and responsible marketing

Part F: Right to fair and honest dealing

Part G: Right to fair, just and reasonable terms and conditions

Part H: Right to fair value, good quality and safety

Part I: Supplier’s accountability to consumers

11. Is consumer protection law applicable to users of zero price service i.e free of charges?

Brazil

Neither the consumer protection law nor the decree on ecommerce refer to zero price services.

Russia

In the case of a consumer acquiring digital content within the framework of free online services, the Law on Consumer Protection does not apply, which follows from the definition of “performer” – an organisation regardless of its organisational and legal form, as well as an individual entrepreneur performing work or providing services to consumers on paid agreement.

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights”. Saveliev A.I. Electronic commerce in Russia and abroad: legal regulation. Second ed. M.: Statute, 2016. 640 p.

India

With the exception of specialised services (such as remote surgery), zero rating by Internet access providers is not allowed in India. The definition of ‘service’ in the Consumer Protection Act explicitly includes within its scope the provision of facilities in connection with telecom but does not include the rendering of any service free of charge.

China

No.

South Africa

ECTA does not provided for this.

The CPA speaks of free goods and services only within the context of “promotional offers” ‘‘promotional offer’’ means an offer or promise, expressed in any manner, of any prize, reward, gift, free good or service, price reduction or concession, enhancement of quantity or quality of goods or services, irrespective of whether or not acceptance of the offer is conditional on the offeree entering into any other transaction.

Obligations and Sanctions

12. Does the law establish specific security requirements to provide digital services or goods?

Brazil

The consumer protection law does not specifically refer to activities in the digital sphere. However, it does mention security aspects in a general sense. Therefore, products and services shall not present a security issue for consumers [Art. 8]. Providers have to inform consumers about potential security issues [Art. 9]. Providers are not allowed to offer products or services that contain high security risks [Art. 10]. Public authorities on all levels are obligated to inform consumers regarding security issues with products and services whenever they take notice. Decree 7962/13 on the regulation of electronic commerce states that commercial websites need to inform consumers on possible security risks of products and services [Art. 2]. Article 4 of the same decree demands providers to apply secure measures for payment options and consumer data processing.

Russia

The consumer has the right to ensure that the product (work, service) under normal conditions of its use, storage, transportation and disposal is safe for the life, health of the consumer, the environment, and does not harm the property of the consumer. Requirements that must ensure the safety of a product (work, service) for the life and health of the consumer, the environment, and the prevention of harm to the property of the consumer are mandatory and are established by law or in the manner prescribed by it.

The manufacturer (performer) is obliged to ensure the safety of the goods (work) during the established service life or shelf life of the goods (work). If the manufacturer (performer) has not established a service life for the goods (work), he is obliged to ensure the safety of the goods (work) within ten years from the day the goods (work) are transferred to the consumer.

Harm caused to the life, health or property of the consumer due to failure to ensure the safety of the goods (work) is refundable. If for the safety of using a product (work, service), its storage, transportation and disposal it is necessary to observe special rules, the manufacturer (contractor) is obliged to indicate these rules in the accompanying documentation for the goods (work, service), on the label, marking or otherwise, and the seller (performer) is obliged to bring these rules to the attention of the consumer.

If, for goods (works, services), the law or in the procedure established by it establishes mandatory requirements ensuring their safety for the life, health of the consumer, the environment and preventing harm to the consumer’s property, the conformity of goods (works, services) with these requirements is subject to mandatory confirmation stipulated by law and other legal acts. Sale of goods (performance of work, provision of services), including imported goods (work, services), without information about the mandatory confirmation of its compliance with safety requirements is not allowed.

If it is established that if the consumer complies with the established rules for using, storing or transporting the goods (work), he causes or may harm the life, health and property of the consumer, the environment, the manufacturer (performer, seller) is obliged to immediately suspend its production (sale) until it is eliminated causes of harm, and, if necessary, take measures to remove it from circulation and recall it from the consumer(s).

If the causes of harm cannot be eliminated, the manufacturer (performer) is obliged to remove such goods (work, service) from production. If the manufacturer (executor) fails to fulfil this obligation,the authorised federal executive body takes measures to recall such goods (work, services) from the domestic market and (or) from consumers or consumers in the manner prescribed by the legislation of the Russian Federation.

Losses caused to the consumer in connection with the recall of the goods (work, services) are subject to compensation by the manufacturer (performer) in full. The following goods shall be recognised as not meeting the requirements of safety of life and health of consumers: a) for which a refusal to issue a certificate of conformity to the safety requirements specified in the standards was received; b) certification for compliance with the established safety requirements for such goods that has not passed; c) with an
unspecified expiration date and with unspecified special rules for safe use, storage, transportation and disposal.

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights”. Commentary to the Criminal Code of the Russian Federation: in 4 tons (itemised) / A.V. Brilliantov, A.V. Galakhov, V.A. Davydovetal.; rep. ed. V.M. Lebedev. M.: Yurayt, 2017.V. 3: The special part. Section IX. 298 p.

India

The Consumer Protection Act does not explicitly address this question.

The draft e-Commerce Rules require e-commerce entities to ensure that personally identifiable information of customers is protected and that such data collection, use and storage comply with provisions of the Information Technology (Amendment) Act, 2008, which includes, among others, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules. The draft e-Commerce Rules also require payments for sale to be facilitated in conformity with the guidelines of the Reserve Bank of India, which include security requirements as well.

China

Article 30 of the E-commerce Law (2018) requires platform operators to provide network security, ensure transaction safety, prevent cybercrimes and report incidents promptly to relevant authorities.

Article 38 of the E-commerce Law (2018) requires platform operators to conduct due diligence to ensure the safety of consumersandtheirproperty.If found irresponsible, for instance, knowingly selling faulty goods or products, platform operators could assume partial responsibility.

Article 54 of the E-commerce Law (2018) requires platform operators to comply with government requirements regarding electronic payment safety and assume responsibility as a result of harm to consumers.

Article 57 of the E-commerce Law (2018) requires platform operators to take precautions to secure consumer passwords, electronic signatures and other security measures and be liable to losses proportional to their responsibility.

South Africa

ECTA does not have specific security requirements but it does oblige the supplier to provide certain information provided for in section 43.

13. What are the sanctions and remedies foreseen by the law for now complying with the obligations?

Brazil

Article 56 of the consumer protection law specifies the following sanctions and remedies: fines; product confiscation; product destruction; confiscation of product licenses; prohibition of product manufacturing; suspension of product supply; temporary suspension of professional activities; suspension of permissions or concessions of usage; suspension of licences of establishments or activities; prohibition of establishments, constructions or activities; administrative interventions, imposition of counterstatements. The same article furthermore informs that other methods including criminal and civil prosecutions are possible.

Russia

For violation of consumer rights established by laws and other regulatory legal acts of the Russian Federation, the seller (performer, manufacturer, authorised organisation or authorised individual entrepreneur, importer) bears administrative, criminal or civil liability in accordance with the legislation of the Russian Federation.

Administrative responsibility is provided for the sale of goods, the performance of work or the provision of services to the population of inadequate quality or in violation of the requirements established by the legislation of the Russian Federation, as well as in the absence of established information.

It also provides for administrative liability for consumer fraud, violation of other consumer rights and violation of the rules for the sale of certain types of goods.

Criminal liability is provided for violation of sanitary and epidemiological rules, production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet safety requirements, as well as for the circulation of counterfeit, substandard and unregistered medicines, medical products and trafficking in biologically active additives. Civil liability for violation of consumer protection laws is established in the form of compensation for damages, compensation for harm caused by deficiencies in goods, works or services, as well as in the form of compensation for moral harm.

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights”. Code of the Russian Federation on Administrative Offenses dated December 30, 2001 No. 195-FZ (as amended on May 01, 2019). Criminal Code of the Russian Federation of 13.06.1996 N 63-FZ (as amended on 04.23.2019). Civil Code of the Russian Federation (Part One) of 30.11.1994 N 51-FZ (as amended on 03.08.2018, as amended and added, took effect from 01.01.2019). The Civil Code of the Russian Federation (Part Two) dated January 26, 1996 N 14-FZ (as amended on 07/29/2018, as amended and added, entered into force on December 30, 2018).

India

Where a violation is listed as an offence in the Consumer Protection Act, it can attract a prison term as well as a fine. The court can also suspend the licence of anyone found guilty for a period of up to two years or cancel the licence in case of second or subsequent conviction.

The Central Consumer Protection Authority (the Central Authority) can order the recalling of goods or withdrawing of services; the reimbursement of the prices of goods and services recalled to the purchasers; and the discontinuation of practices which are unfair and prejudicial to the consumers’ interest. It can also issue directions to all relevant parties to discontinue or modify false or misleading advertisements, prohibit the endorser of a false or misleading advertisement from making further endorsements and impose penalties.

The Consumer Disputes Redressal Commissions at district, state and national level can order the opposite party to remove defects pointed out; to replace the goods with new goods; to reimburse the price or charge paid by the consumer with interest; to provide compensation to the consumer; to discontinue unfair or restrictive trade practices and not to repeat them; not to offer the hazardous or unsafe goods or services for sale or withdraw them from sale and to cease to manufacture them; to issue corrective advertisement; to provide for adequate costs to parties; and to cease and desist from issuing misleading advertisements. In addition, the State and National Commissions can declare any terms of contract, which is unfair to any consumer, null and void.

China

In principle, Section 7 of the Law of the PRC on the Protection of Consumer Rights and Interests (1994, with 2013 amendment) outlines the sanctions and remedies foreseen by the law regarding noncompliance. Section 6 of the E-commerce Law (2018) also specifies the sanctions and remedies pertaining to e-commerce, online transaction, digital goods and services.

South Africa

None are provided for in respect of consumer protection in ECTA.

CPA: Penalties: Section 111.

1. Any person convicted of an offence in terms of this Act is liable: (a) in the case of a contravention of section 107 (1), to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and imprisonment; or (b) in any other case, to a fine or to imprisonment for a period not exceeding 12 months, or to both a fine and imprisonment.

1. Despite anything to the contrary contained in any other law, a Magistrate’s Court has jurisdiction to impose any penalty provided for in subsection (1). Administrative fines Section 112 (1) The Tribunal may impose an administrative fine in respect of prohibited or required conduct. (2) An administrative fine imposed in terms of this Act may not exceed the greater of: (a) 10 per cent of the respondent’s annual turnover during the preceding financial year; or (b) R1 000 000.

1. When determining an appropriate administrative fine, the Tribunal must consider the following factors: (a) The nature, duration, gravity and extent of the contravention; (b) any loss or damage suffered as a result of the contravention; (c) the behaviour of the respondent; (d) the market circumstances in which the contravention took place; (e) the level of profit derived from the contravention; (f) the degree to which the respondent has co-operated with the Commission and the Tribunal; and (g) whether the respondent has previously been found in contravention of this Act.

1. For the purpose of this section, the annual turnover of a supplier at the time when an administrative fine is assessed, is the total income of that supplier during the immediately preceding year, as determined in the prescribed manner.

A fine payable in terms of this section must be paid into the National Revenue Fund referred to in section 213 of the Constitution.

Actors

14. What bodies are responsible for the implementation of the consumer protection law?

Brazil

Article 39 states that specific organs are responsible for technical product standards required to provide products and services, which includes ABNT and Conmetro. Article 82 of the consumer protection law defines the following bodies for being responsible for the implementation of consumer protection: Federal Prosecution Service (Ministério Público), the Union, the states, the municipalities, the Federal District, different organs of public administration, consumer protection associations.

Article 105 specifies that the National System of Consumer Protection is made up of federal, state, and municipal organs, the Federal District, and private consumer protection entities. It furthermore lists the National Department of Consumer Protection (Departamento Nacional de Defesa do Consumidor) at the Ministry of Justice as the coordinating organ of national consumer protection.

Russia

Federal state supervision in the field of consumer rights protection is carried out by an authorised federal executive body in this area.

The highest executive body of state power of the relevant subject of the Russian Federation takes measures to implement, ensure and protect the rights of consumers and within its authority.

Consumer protection on the territory of the municipal entity is carried out by local authorities. Citizens have the right to unite on a voluntary basis into public associations of consumers (their associations, unions), which carry out their activities in accordance with the charters of these associations (their associations, unions) and the legislation of the Russian Federation.

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights”.

India

The principal actors provided for under the Act are the Central Consumer Protection Authority (the Central Authority), including its investigation wing, and Consumer Disputes Redressal Commissions at the district, state and national levels (the Commissions), each of which will have a Consumer Mediation Cell attached to them. The Act also provides specific powers to the district collectors. Appeals to orders of the National Consumer Disputes Redressal Commission are to be heard by the Supreme Court.

The Act also sets up Consumer Protection Councils at the national, state and district levels, to give advice on the promotion and protection of the consumers’ rights under the Act. Its members include the minister in charge of consumer affairs at the state and national levels, and the district collector at the state level.

China

Article 32 of the Law of the PRC on the Protection of Consumer Rights and Interests (1994, with 2013 amendment) specifies the Administrative Department for Industry and Commerce to be the main department to lead the implementation of the consumer protection law.

Article 6 of the E-commerce Law (2018) requires local governments above the county-level to establish the division of duties concerning e-commerce regulation. A newly created department in 2018 –StateAdministration for Market Regulation – is tasked to coordinate e-commerce regulation efforts.

South Africa

ECTA does not provide for specific bodies.

CPA:

Chapter 5: National Consumer Protection Institutions

Part B

Establishment of National Consumer Commission

Part C

Functions of Commission

15. Is there a specific consumer protection body? If so, what is its administrative structure?

Brazil

Article 105 of the consumer protection law defines the National Department of Consumer Protection (Departamento Nacional de Defesa do Consumidor) at the Ministry of Justice as the coordinating organ of national consumer protection policies.

Russia

Federal state supervision in the field of consumer protection is carried out by the Federal Service for Supervision of Consumer Rights Protection and Human Welfare The Federal Service for Supervision of Consumer Rights Protection and Human Welfare is headed by a leader appointed to office and dismissed by the Government of the Russian Federation.

The head of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare is the chief state sanitary doctor of the Russian Federation.

The Head of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare is personally responsible for the implementation of the functions assigned to the Service. The head of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare has deputies appointed to office and dismissed from office by the Government of the Russian Federation on the proposal of the head of the Service.

The deputy heads of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare, performing the functions of organizing and implementing federal state sanitary and epidemiological supervision, are deputy chief state sanitary doctor of the Russian Federation.

The number of deputy heads of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare is established by the Government of the Russian Federation.

Decree of the Government of the Russian Federation of 2.05.2012 N 412 (ed. of 14.12.2018) “On approval of the Regulation on federal state supervision in the field of consumer rights protection”. Decree of the Government of the Russian Federation of 30.06.2004, N 322 (as amended on 26.03.2019) “On the approval of the Regulations on the Federal Service for Supervision of Consumer Rights Protection and HumanWelfare”.

India

The objective of the Central Consumer Protection Authority is to regulate matters relating to the violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of the public and consumers, and to promote, protect and enforce the rights of consumers as a class.

The Central Authority, still to be set up at the time of writing, shall be headed by a Chief Commissioner, as well as having a number of other Commissioners as prescribed, all to be appointed by the Central Government. Headquartered in Delhi, it may have regional and other offices in any other part of India, as per the Central Government’s decision. The Central Government shall provide a number of officers and other employees to the Central Authority, as considered necessary for the Central Authority’s efficient functioning. The Central Authority may further engage a number of experts and professionals of integrity and ability with relevant specialised knowledge and expertise. The Central Authority will have an investigation wing, to conduct inquiries or investigations under the Act, as directed by the Central Authority. The Director-General of the investigation wing, as well as other officials, may be appointed by the Central Government.

China

The State Administration for Market Regulation (SAMR) has the regulatory authority over a broad umbrella of areas including market competition, monopoly, intellectual property, drug safety, and standardization. Consumer protection now falls under its purview as it oversees the operations of non- profit organizations such as China Consumer Association and China Association for Consumer Products Quality and Safety Promotion. The Department of Online Transaction Regulation under the SAMR is tasked to supervise e-commerce.

South Africa

There is none under ECTA.

CPA: Section 85.

(1) The National Consumer Commission is hereby established as an organ of state within the public administration, but as an institution outside the public service.

16. What are the powers of the bodies responsible for the implementation of the consumer protection law?

Brazil

Article 106 defines the following powers of the National Department of Consumer Protection:

Planning, elaborating, proposing, coordinating, and executing national data protection policies;
Receive, analyse, evaluate, and send consultations, incriminations or suggestions presented by representative entities or legal persons of public or privatelaw;
Advice consumers regarding rights andguaranties;
Inform, raise awareness and motivate consumers through different means of communication;
Request the initiation of police investigations in case of delicts against consumers;
Inform responsible organs about infractions violating consumer interests;
Work with public prosecution to adopt procedural measures where necessary;
Overseeing prices, supply, quantity and security of goods and services;
Encourage the creation of consumer protection organisations by citizens and public entities on the state and municipality levels.

Russia

1) organizing and conducting inspections of compliance by manufacturers (performers, sellers, authorised organisations or authorised individual entrepreneurs, importers, owners of aggregators) with the requirements established by international treaties of the Russian Federation, the Law on Consumer Protection, other federal laws and other regulatory legal acts of the Russian Federation, regulating relations in the field of consumer rights protection, regulations of officials of the state supervision body but;

2) organizing and conducting inspections of the conformity of goods (works, services) to mandatory requirements ensuring the safety of goods (works,services) for the life and health of consumers, the environment, preventing actions that mislead consumers, and preventing harm to consumers’ property set forth in compliance with international treaties of the Russian Federation, federal laws and other regulatory legal acts of the Russian Federation;

3) applying, in accordance with the procedure established by the legislation of the Russian Federation, preventive measures for violating mandatory requirements, issuing orders to terminate violations of consumer rights, to terminate violations of mandatory requirements, to eliminate identified violations of mandatory requirements, to bring to justice the persons who committed such violations;

4) systematic observation of the fulfilment of mandatory requirements, analysis and forecasting of the state of fulfilment of mandatory requirements when manufacturers (performers, sellers, authorised organisations or authorised individual entrepreneurs, importers, owners of aggregators) carry out their activities;

5) statistical observation in the field of consumer protection, accounting and analysis of cases of harm to life and health of consumers, the environment and property of consumers associated with the acquisition and use of goods (works, services) with disabilities, hazardous goods (works, services) or with providing consumers with untimely, incomplete, unreliable and misleading information about goods (works, services);

6) the annual analysis and evaluation of the effectiveness of federal state supervision in the field of consumer protection;

7) annual preparation of state reports on the protection of consumer rights in the Russian Federation in the manner established by the Government of the Russian Federation.

Law of the Russian Federation of 07.02.1992 N 2300-1 (as amended on 18.03.2019) “On Protection of Consumer Rights”.

India

The Consumer Protection Act lists a large number of powers and functions of the Central Authority, including to inquire or cause an inquiry or investigation into violations of consumer rights or unfair trade practices; to file complaints before the District, State and National Commissions; to intervene in proceedings before the Commissions that concern allegations of violation of consumer rights or unfair trade practices; to review matters relating to, and factors inhibiting enjoyment of consumer rights and recommend appropriate remedial measures; to mandate the use of unique and universal goods identifiers and to issue guidelines to prevent unfair trade practices; and to issue safety notices. It can also recommend adoption of international covenants and best international practices on consumer rights, undertake research, raise awareness, and provide advice to Government Departments.

Where the investigation wing of the Central Authority or the District Collector engage in an inquiry or investigation, they will have powers of search and seizure. District Collectors may investigate complaints within their jurisdiction on a complaint or reference from the Central Authority or a Commissioner of a regional office.

The specific actions that the Central Authority can take, following an investigation, have been documented above, in the section on sanctions and remedies.

The District, State and National Commissions are quasi-judicial bodies that can entertain consumer complaints of different value and have the same powers in a number of respects as those vested in a civil court under the Code of Civil Procedure, 1908.
Every proceeding before the Commissions shall be deemed a
judicial proceeding. With the agreement of all parties involved,
the Commissions can refer any complaint to the Consumer
Meditation Cell attached to the relevant Commission. The
Commissions can also review their own orders. The State and
National Commissions will further hear appeals to decisions of the preceding level. In addition, they can, in particular circumstances, call for the records and pass appropriate orders in any consumer dispute pending before or decided by the preceding level and can transfer cases pending before the lower level(s). Where a person fails to comply with an order by a Commission, the Commission shall have the power of a Judicial Magistrate of first class for the trial of that offence. The specific actions that a Commission can take following an investigation have been documented in the section on sanctions and remedies.

China

The Department of Online Transaction Regulation under the SAMR is tasked to formulate and implement institutional measures to regulate online commodity transactions and related services; enforce law in the online market; organize and guide the standardized management of online transaction platforms and online operators; monitor online markets; supervise and manages and coordinates the administrative contracts and auctions according to law; and guide the construction of the consumption environment.

South Africa

None are specified in ECTA.

CPA: Chapter 5

Part C: Functions of Commission

Section 92: General provisions concerning Commission functions;

Section 93: Development of codes of practice relating to Act;

Section 94: Promotion of legislative reform;

Section 95: Promotion of consumer protection within organs of state;

Section 96: Research and public information;

Section 97: Relations with other regulatory authorities;

Section 98: Advice and recommendations to Minister.