Consumer Law Research Articles

The United Nations Guidelines for Consumer Protection: Legal Implications and New Frontiers

The United Nations set a milestone in the development of consumer law when it adopted the United Nations Guidelines for Consumer Protection in 1985 (UNGCP), establishing for the first time a set of international consumer law principles. Since then, with the emergence of the digital era, the landscape has experienced dramatic changes, and consumers have been facing an expanding range of global challenges, especially in the financial services sector. To reflect this changing landscape, new provisions were added by revised Guidelines in 1999 and again in 2015, which included recommendations on good business practices, financial protection and e-commerce. However, the Guidelines are only soft law provisions, as they are not legally binding on Member States. The question therefore arises of how effective they can be in promoting consumer law at the national and global levels. This article will argue that a comprehensive international consumer law framework is essential in the current context, and that there has been some advancement towards this since the adoption of the Guidelines. However, while the United Nations is playing a unique role in promoting an inclusive and broad consumer protection approach, it sometimes lacks the legal powers and resources to ensure the full effectiveness of its Guidelines. The article thus examines the evolution of consumer protection at the international level, assessing the legal landscape and key players in the field. It outlines the increasing involvement of the United Nations in the area of consumer protection, analysing the core features of the revised Guidelines and their implications, and concludes by suggesting avenues for future development.

The Force Awakens: Artificial Intelligence for Consumer Law

Recent years have been tainted by market practices that continuously expose us, as consumers, to new risks and threats. We have become accustomed, and sometimes even resigned, to businesses monitoring our activities, examining our data, and even meddling with our choices. Artificial Intelligence (AI) is often depicted as a weapon in the hands of businesses and blamed for allowing this to happen. In this paper, we envision a paradigm shift, where AI technologies are brought to the side of consumers and their organizations, with the aim of building an efficient and effective counter-power. AI-powered tools can support a massive-scale automated analysis of textual and audiovisual data, as well as code, for the benefit of consumers and their organizations. This in turn can lead to a better oversight of business activities, help consumers exercise their rights, and enable the civil society to mitigate information overload. We discuss the societal, political, and technological challenges that stand before that vision.

After the TEF and consumer law-based interventions – are prospective HE students now able to make informed choices?

ABSTRACT This article argues that recent government interventions in higher education – some based in consumer law and others in the form of the Teaching Excellence Framework (TEF) have failed to put prospective students in a position to make informed choices about courses or universities. Consumer law-based interventions do not give students all the information they need, although they may help to improve the standard of information and to control marketing excess. The TEF, with its focus on outputs rather than inputs, similarly misses the mark. These failures are bad for students and, to the extent that higher education is a market which depends on students making informed choices, bad for higher education.

Recunoașterea puterii din oficiu a judecătorului în litigii de consum

"In consumer dispute, litigation most of the time brings together a professional and a consumer who very often does not appear or appear alone in front of the judge, but does not really defend himself. The temptation of some judges here is to come to the aid of the party who does not appear or who does not defend himself well and therefore to apply the consumer protection rules ex officio. On this point, French and European case law has long been contradictory. In order to harmonize national law with European law, the French legislator confers to the judge the power to apply ex officio the provisions of the Consumer Code by means of the ex officio statement. The effectiveness of European consumer law, both protecting consumers and regulating the market, justifies the creation of an autonomous procedural law rather than an instrumentalisation of the ex officio recording of legal remedies. In these circumstances it is important to see the evolution of the recognition of the power of the judge ex officio, on the one hand, from the denial of said power to the faculty to do so (§ 1st) and, on the other hand, the power to waive ex officio the obligation to do so (§ 2nd)."

Treating Vulnerable Consumers ‘Fairly’ When They Make a Complaint About Banking or Finance in Australia

The Australian Financial Services Reform Act 2001 (Cth) requires that licenced banking and financial services providers establish internal dispute resolution (‘IDR’) systems complying with requirements promulgated by the Australian Securities and Investments Commission (‘ASIC’). In addition, licence holders are required to be members of an ASIC approved External Dispute Resolution (‘EDR’) scheme so that if a complaint is not resolved following the use of internal mechanisms, an external dispute resolution facility is available for most banking consumers. In late 2018, a new EDR body was established, the Australian Financial Complaints Authority (‘AFCA’), to deal with external complaints. The 2018 Royal Commission into the banking and finance sector uncovered significant issues in terms of the banking and financial sector and raised a number of serious concerns that were largely linked to how consumers contracted with banks and other organisations however information about existing complaint handling arrangements was limited. In particular, there was little demographic information about consumers who use IDR and EDR arrangements or what factors may be relevant in terms of the settlement of complaints and disputes. In this regard, currently sections 912A(1)(g), (2) of the Corporations Act direct the form of AFSL holders’ IDR and EDR systems, but they do not impose any obligations on AFSL holders in terms of conduct when providing the systems. In terms of consumers more generally, it is unclear how many consumers could be classified as ‘vulnerable’ and may settle a dispute on less favourable terms because the impact of proceeding may place them in an even more disadvantageous position. It is suggested that better reporting in relation to IDR and EDR activity together with targeted independent advocacy services and training of relevant staff in respect of the Australian Consumer Law could assist consumers and enable more effective reporting of misconduct issues.

Coronavirus As a Catalyst to Transform Consumer Policy and Enforcement

A review of the unfair commercial practices (including price gouging) that have emerged in the context of the pandemic lead us to reflect on how effective consumer law enforcement is at this juncture. This article calls for the pandemic to act as a catalyst to review the way consumer law has so far approached markets and their regulation. It argues that now, more than ever, consumer law needs to protect the vulnerable and public enforcement mechanisms must be able to prevent harm as much as possible rather than repair it. Fairness should be by design and not something that is offered to consumers simply as a remedy. The article explores some viable solutions to effect this transformation of consumer policy and enforcement beyond the pandemic.

Paradigms of EU Consumer Law in the Digital Age

The article analyzes the legal developments that can be observed in EU law on consumer contracts in an increasingly digitalized environment. It draws on the example of sale of goods, i.e. a type of contract that existed and exists both before and after the flourishing digitalization. Hereby, changes in paradigms can be seen most clearly. The main argument of the article will be that there is no formal separate set of law for cross-border online sales in the European context but rather that sales law in general is heavily influenced by a new paradigm of online sales. In this paradigm, the primary aim is no longer to protect individual autonomy and to level out parties’ interests (a party-centered perspective) but more and more to protect and facilitate markets (a market-centered perspective). While a focus on markets has always influenced the European Union’s view on consumer law, it could fully prevail only in the course of digitalization. This is, because cross-border consumption on a significant scale in the European Single Market was practically not feasible for consumers before the advent of online transactions. The shift towards a market paradigm is not limited to contract law in a narrow sense but extends to regulatory techniques in private international law, law enforcement, and developments in private contractual practice. Therefore, the article will trace the unfolding of an online paradigm and its leading role for consumer sales in general across different sub-areas. For example, it will analyze the principle of market orientation in conflict of laws, means of standardization and boosting consumption in substantive EU sales law, and the transformation of contractual relations in the platform economy.

The Influencer Republic: Monetizing Political Speech on Social Media

Political speech enjoys the highest degree of protection by national constitutions as well as supranational and international charters (e.g. ECHR). Unlike commercial speech which, in some cases, does not enjoy constitutional protection, political speech is the foundation of constitutional democracies. The blurring line between political and commercial speech introduces a new layer of complexity in tackling hidden political advertising. Indeed, political speech is likely to attract commercial speech inside a broader scope of protection with the result that potential limitations of this kind of speech (e.g. regulation) would be required to pass a very strict test through the balance with other constitutional safeguards or legitimate interests according to the criteria of necessity, legitimacy and proportionality. This could also question the scope of other regulation designed to govern commercial speech like advertising. This paper addresses the specific challenges arising from the monetization of political speech on social media, and propose a normative argument to extend consumer disclosures to political speech. To this end, the paper compares regulatory and judicial interpretations adopted in Europe and the United States, and is structured as follows. In the first part, we explore the content monetization business models (including influencer marketing) used on social media, and we identify three types of influencer ‘personas’ who are prone to engage in political speech. The second part looks into the constitutional differences between commercial and political speech across the Atlantic. The third part provides the normative argument at the intersection between consumer law and freedom of expression, and the fourth part concludes.

Система защиты прав потребителей в России: К 30-летию антимонопольных органов РФ. (Обзор)

Consumer protection has become an integral part of life of the population in Russia. The article presents a brief history of the consumer movement, the consumer law as well as the formation of the national system of consumer protection in the Russian Federation at the end of XX century, describing its main elements.

Adaptation of consumer law to the digital age: EU Directive 2019/2161 on modernisation and better enforcement of consumer law

This Paper examines the most important innovations in the recently adopted European Directive 2019/2161 on better enforcement and modernisation of Union consumer protection rules. First, by adding the innovative rules, such as the ones on the trustworthiness of online reviews, the Directive aims to adapt the European regulatory framework on consumer protection to the challenges and particularities of the digital age and the digital market. Second, through the sharp rise of the fines for breach of consumer law and through the introduction of a mandatory individual remedy to the consumers who has been a victim of unfair commercial practices, the Directive substantially contributes to strengthening of the general enforcement mechanism of EU consumer law and achievement of high level of consumer protection.

Relações de consumo e serviços públicos: a figura do estado consumidor

O presente estudo busca apresentar o conceito de serviços públicos, de consumidor e de fornecedor a fim de discorrer acerca da possibilidade de aplicação do diploma consumerista na prestação dos serviços públicos e na figura do Estado como consumidor. Para isso, utilizou-se a técnica de pesquisa bibliográfica para instrumentalizar o presente artigo científico, através da base lógica indutiva para relatar os resultados do trabalho.

Practice of “Defensive Medicine” Among Doctors at a Tertiary Care Hospital

Introduction: Defensive medicine is the short term coined for a defensive medical decision making.It means advising diagnostic tests, prescribing more drugs than required or avoids treating and operating high risk patients. These may not be the best options for the patient but the practice among doctors is currently adopted to avoid litigation. A situation aggravated by the promulgation of tough consumer laws and other criminal laws applicable to health care providers. This study was conducted to assess the frequency of defensive medicine practice among doctors at the teaching medical college hospital of NGMC.
 Methods: A cross sectional study was conducted at Nepalgunj Medical College, Teaching Hospital, Kohalpur, a tertiary care center in between January to December 2018. A questionnaire was developed to assess the various aspects of defensive medicine practice. In this study, a total of 75 doctors participated.
 Results: Practice of defensive medicine was common in age between 30-40 years. Fear of caring high risk patients (76%)), ordering un-necessary tests (56%)) followed by avoiding high risk procedures (46%) were common forms of defensive medicine practices observed in sampled doctors. Senior faculties were found practicing more defensive medicine than juniors (69.4% versus 30.6%) and more in surgical field as compared to non-surgical 61% vs. 39%.
 Conclusion: Defensive medical practice in various ways is common among the doctors. This has produced a positive impact in the form of greater communications with the patients and awareness to have a good medical record keeping. However, the negative impacts on the doctors have been more in the form of prescribing more investigations, drugs, more referral and reluctance to accept high risk patients if there is choice.

COMO A UNIÃO EUROPEIA PROCURA PROTEGER OS CIDADÃOS-CONSUMIDORES EM TEMPOS DE BIG DATA

As tecnologias de Big Data vieram criar uma disrupção profunda, não apenas nos modelos de negócios correspondentes às relações de consumo, como também no que se refere à eficácia aos instrumentos legais de defesa do consumidor e de proteção de dados dos cidadãos. Na União Europeia, e nos Estados-membros, esta disrupção aos equilíbrios alcançados conduziu a uma reconsideração dos institutos próprios do Direito do Consumo e um recurso acrescido ao Direito da Proteção de Dados Pessoais, designadamente com base no novo centro do correspondente microssistema, o Regulamento Geral sobre Proteção de Dados. Esta nova realidade é analisada na perspetiva do Direito aplicável em Portugal.

International Consumer Law: What Is It All About?

Increasing effort has been invested in the internationalization of consumer law. Some of the recent huge global consumer law–related scandals (e.g., Dieselgate, Facebook) demonstrate the rising relevance of and the need for international consumer law. This paper argues that the efforts towards the internationalization of consumer law should focus, first, on the establishment of globally accepted minimum standards of consumer protection (as it has been done through the United Nations Guidelines on Consumer Protection) and, second, on the development and facilitation of cooperation as a necessary prerequisite for the efficient protection of consumers (as it has been initiated by the International Consumer Protection and Enforcement Network), rather than on the harmonization of substantive consumer law. This is not only because coordination among diverse countries in the area of consumer protection is easier to achieve in practice through a policy approach rather than substantive harmonization, but also because coordination in practice is an instrument that, as it stands now, is capable of providing a higher level of protection to consumers than substantive harmonization.

The Modernization of European Consumer Law (Continued): More Meat on the Bone after All

In an earlier contribution to this review, I was fairly skeptical as regards the content of the modernization directive. This article discusses to what extent the final text of the modernization directive ultimately delivers on the promises regarding the modernization and better enforcement of European consumer protection rules.

Circular Economy and Consumer Protection: The Consumer as a Citizen and the Limits of Empowerment Through Consumer Law

The role of consumers as citizens contributing to a circular economy must be seen as part of a broader policy mix aimed at stimulating sustainable production on the supply side of the market, and sustainable consumption on the demand side. Consumers can be active contributors to a circular economy through their actions on the demand side, and EU law has sought to facilitate environmentally-friendly consumer choices through information rights. Further reaching measures can however be envisaged whereby sustainability aims can be taken into account when shaping consumer law. Thus, consumers may be stimulated to opt for repair or to engage in shared use of products through “servitization.”

International Protection of Consumers as a Global or a Regional Policy

This article argues that the international protection of consumers should be a global policy in the twenty-first century, since consumers are important actor of the globalization. But beside the UN Guidelines on Consumer Protection (UNGCP) from 1985, revised in 1999 and 2015, there is no other universal – or “global” – legal instrument (either soft or hard law) on consumer protection. In opposite to environmental law, there is no single global convention or binding international legal instrument on consumer protection issues. The article analyses the role of South America with regard to the promotion of international consumer law and two efforts of the Brazilian Government to enhance the international protection of consumers, in Mercosur and at the Hague Conference on Private International Law, and the chances of their success as a future hard or soft law. The main problem discussed in this article is whether the current international protection of consumers is a global policy or a mere regional or national policy, which contributes for a fragmented picture of the consumer protection worldwide.

Are Australian gift cards refundable after their expiry?

Gift cards are valid for a limited period of time and consumers cannot get refunds for any unused and expired monetary credit balance. Despite the recent federal and NSW gift card reforms, the reforms do not mandate gift cards to be refundable. By comparison, section 24 of the Australian Consumer Law may render the non-refundable term unfair and the gift card contracts would continue to apply without this unfair term. The result is that all Australian consumers should be able to redeem gift cards before expiry and get refunds for the remaining credit in the gift cards after expiry. This positive result would balance the rights of consumers and the legitimate interests of gift card providers to boost gift card business.

Unfair Terms Control in Business-to-Business Contracts

The aim of the paper is to outline the regulation of one-sided (or onerous) standard terms in business-to-business contracts according to Italian law, in the light of the specific legislative rules and existent case law. Differently than other European legal systems, Italian law does not provide for a substantive control of unfair standard terms in business-to-business contracts. After the implementation of the European Directive no 93/13, the scope of the substantive judicial review covers only unfair terms in business-to-consumer contracts. Italian scholars often discussed the extension of the scope of application of consumer law to business-to-business contracts, but the legislature never addressed the issue. The Italian Civil Code of 1942 represented a forerunner in providing rules for the incorporation of standard terms in contracts, that are applicable to every kind of contractual relationship between businesses. At the present stage, such rules do not protect adhering parties in an effective way and give rise to many disputes. In some cases, the need of protection of weaker businesses induced Italian courts to develop judge-made law based on open-ended clauses, such as good faith. In other cases, Italian judges adopted the parameter of the worthiness of protection or the causa doctrine, to affirm the invalidity of harsh contractual terms. Further limitations of contractual freedom are the so-called ‘abuse of economic dependence’ and rules devoted to certain contractual terms, which are often standardized in business-to-business contracts (exclusions or limitations of liability and time constraints for the exercise of a right). After sketching the comparative law background with reference to German and French law, the article offers a comprehensive account of the aforementioned elements. The examination leads the author to affirm that Italian law entails an indirect control of unfair terms in business-to-business contracts. In the final part, its relevance in the international context is evaluated.

From Fragmentation to Harmonization of Consumer Law: The Perspective of China

Since the appearance of consumer law, its norm production landscape has been highly diversified and fragmented among the countries. The features of “lawlessness in some sectors” and “the lack of efficiency and effectiveness of national legal systems” give rise to the proliferation of norm producing originated by other bodies such as international organizations, industries, traders and even hybrid entities composing the public, the private and the civil society. There are many variations and differences in consumer law and policy between the Global North and the Global South. In recent years, harmonization of standards, codes of conduct and good practices have already taken place through international organizations and global businesses. In relation to harmonization of consumer laws among different countries, there have been skeptical views regarding such feasibility taking into account varying levels of institutional development. Thomas Bernauer explains “variation of consumer protection standards across countries may be a source of trade disputes.” Starting from the past decade, harmonization of consumer law has been achieved or at least advocated at regional levels. Harmonization easily starts within a region since regional integration creates opportunities for approximation of legal infrastructures. The EU is a very successful case in harmonizing consumer laws further guaranteed by a strong judicial system. In Latin America and in Asia, harmonization projects are ongoing and similar initiatives have also been supported. Whilst acknowledging the existing fragmentation and variations of consumer law worldwide, the author highlights the converging environment of consumer protection due to challenges brought by the globalization and advocates the feasibility of the harmonization approach from the perspective of a dynamically emerging and transitional economy such as China. At the outset, it explores the underpinnings of the consumer law which is a fairly modern legal intervention. China, like other countries, has been modernizing its consumer law by adopting a human-centred, rights-centred and social values-centred approach. Then, it examines the more important role played by emerging countries, particularly in areas such as global B2C e-commerce, telecommunication, financial services and mass tourism, and examines international dialogues and cooperation with active participation by the developing countries including China. There is a need for harmonization of consumer laws in the Mainland China, Macau and Hong Kong regions. China has made some progress on its own, but achieving harmonization in the wider region presents particular challenges. The author hopes that the harmonization would be achieved not only by creating consistency of rules but also by coordinating enforcement across borders. In conclusion, the author seems optimistic for a possible universal model law, which contains the minimum legal requirements and standards of consumer protection and mechanisms to strengthen cross-border cooperation to maximize the harmonization of consumer protection worldwide.