[This is the fourth article in the series of articles
discussing the provisions of ECT-2002, the draft Bill pending for passage in
South Africa.]
The need to apply Cyber Laws over many of the existing set
of laws has been addressed by the Indian ITA-2000 with a "Bridging Provision"
stated under Section 4for electronic documents and Section 5 for signatures.
By virtue of these sections, wherever any law of the country operates and
refers to documents in "Writing", such laws will continue to operate even when
the document is not in "Writing" but in "Electronic form".
Thus, provisions of the Consumer Protection Act will also be applicable for
electronic transactions to the extent that those provisions that apply to
"Writing" and "Signature" will be replaced by "Electronic Documents" and
"Digital Signatures".
While for the practical purpose of invoking the law, this is sufficient, in
any case of violation, the act invoked for primary prosecution is the relevant
Consumer Protection Act and would be constrained by the jurisdictional
restrictions contained therein.
The ECT-2002 has by passed this problem by being specific on some of the
aspects that are related to Electronic Transactions and avoided some
ambiguity.
Under Chapter 7 of the ECT, the following issues are covered.
a) Need for relevant information to be made available to Consumers
b) Provision for Return of goods bought
c) Unsolicited marketing Spam
d) Application in International scenario.
Under Section 44, apart from listing the type of information that needs to
be provided before any sale, the act stipulates that " the supplier must
provide an opportunity for the consumer to review the entire transactions,
correct any mistakes and withdraw from the transactions before placing the
order."
It also mandates that the supplier must use
a payment
system that is sufficiently secure with reference
to accepted technological standards at the time of the transaction and the
type of transaction concerned.
Besides, under Section 45, it provides a "Cooling off
period" of seven days, when the Customer can cancel his order and the supplier
bound to return the cost within 30 days. Certain exceptions to this provision
is stated in Section 44.( Such exceptions include perishables and unleashing
of software and commencement of service). Similarly, if the order is not
fulfilled as per the terms of the contract, the refund has to be effected
within 30 days.
The protection applicable under this section will be
available to the consumer irrespective of the law prevailing in the country of
the supplier. The application of the act cannot be over ruled by any agreement
to the contrary by the seller.
In view of the provisions of the Act any foreign
company including an Indian Company, dealing with a citizen or resident of the
republic will have to consider itself bound by it not withstanding the "Terms
and Conditions" drafted by its own lawyers for its web site.
While the intentions behind this jurisdictional freedom
assumed by the act is laudable, it could be a source of frequent international
disputes when the seller takes shelter under the provisions of his country's
consumer laws which are at variance with the ECT-2002.
Naavi
March 16, 2002
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