The Consumer Protection on the Internet - Essay Example

? Internet Law The lack of specific legal basis from case laws and other existing statutes makes it hard to govern transactions consummated over the internet1. The problem is compounded when the customer is within the United Kingdom and the company providing the product or the service is outside the United Kingdom2. Relief can be acquired if the organization providing the product or the service has an extension office within the United Kingdom3. However, for organizations that do not have any presence within the realm, protecting English customers could prove difficult due to the challenges in enforcing the rule of law4. Jurisdiction remains largely an issue with regards to internet transaction because of the intrinsic characteristics of the internet and those who uses it5. The European Union recognizing the borderless nature of internet commerce that may affect its member nations have created a body of law through the European Economic Area. Ratified and agreed on in May 1997 the European Union directive6 has provided a framework for trade in order for member states to enact similar laws that would complement the laws enacted by other European Union members that would address in part e-commerce or transactions consummated over the internet. The caveat however is that this body of laws remain enforced and effective within the European Economic Area only. For its part the United Kingdom has enacted the Consumer Protection (Distance Selling) Regulations 20007 in response to the European Union directive that covers mail order, telephone sales and other distance selling business strategy. The regulation mandates that the seller provide its potential customers with detailed information that would include the main characteristics of the goods; the price, including any taxes and delivery costs; payment arrangements; guarantees and where to address complaints about the goods. In retrospect the provisions of the law supplements the weakness of distance selling as against actual face to face commerce8. In actual face to face commerce, the buyer has the luxury of inspecting the product up close and personal. The buyer in these instances also has the benefit of taking possession of the item after he has paid all that is required to gain ownership of the item. In internet transaction or e-commerce the actual possession of the item being bought except for some items will take days if not months after the buyer has paid what is due the seller9. The following are the protected rights of e-consumers under the distance selling regulation for sellers and buyers that are both within the jurisdiction of the European Economic Area. Unless otherwise agreed the sale and delivery of goods should be completed within thirty days. If in case the goods ordered are not available, e-consumers have the right to a refund provided that it is done within thirty days. E-consumers are also entitled to return goods within seven days from receipt and refund less the cost of carriage for items within limits10. It should be noted however that there are exceptions to this rule normally perishable goods, custom-made-goods and dated goods such as journals and publications are exempt for refund. Buyers also have the right to cancel payments for goods that have been ordered through fraud. The logic of this provision is to protect the interest of both seller and buyer in cases where losses are likely to occur because items are either unique that no other buyer will get it or items have become useless due to spoilage11. Due to the increased efficiency and convenience experienced in using the internet to transact business more and more people gravitates towards this mode of commerce because of the ease and comfort it provides its users. The drawback however of internet transaction is the increased risk for fraud and the difficulty of recovering the money used in the transaction not to mention the prosecution of the culprits responsible12. Thus, the government fully supported an accreditation scheme for internet traders named “Trust UK”13. However, the organization dissolved in January 2003 and no other organization replaced it hence. This may be due in part to the enactment and implementation of The Electronic Commerce (EC Directive) Regulations of 200214 which basically put in to law the concern and focus of the “Trust UK” organization. According to Paul Mobbs author of E-consumer Protection15 the following good practices should be common knowledge for internet users. Users should understand that not all domain names with an extension ‘UK’ are owned by organization that is based from the United Kingdom16. Before it was discontinued, organizations that have been accredited by the ‘Trust UK’ guarantee that they will protect your privacy and ensure that all payments are secure. These organizations will also let you know how to cancel orders should you need to, and they will likewise deliver goods and services within the agreed time. Other practical tips were offered by Trust UK in order to protect the general public that uses the internet for commercial purposes. One of which is the use of credit card, large credit card companies have internal checks to prevent fraud. It is best not to send financial details over the internet unless the website has been confirmed to be authentic. It is also best to print screen every aspect of the transaction to ensure that everything is documented. Applying the principles of e-commerce as elucidated above in a case concerning internet commerce: Brian accessed the website of Easyflying Ltd. (www.easyflying.com) that sells airline tickets to inquire the prices of tickets of flights from London to Paris. The prices of the tickets offered by Easyflying are generated automatically by using a computer formula on the basis of the information provided by the buyer. Confirming the availability of the tickets the websites notified Brian of the ticket prices. Brian responded by ordering a quantity of tickets, completes the required web form and adds his bank details. Brian also scrolls through the standard terms and conditions and clicks on the button to signify his assent. Brian later realized that tax is not included in the price, and that the price is much higher than originally indicated. This was because the price of the ticket increased before Brian was able to confirm the sale of the ticket. Brian’s problem was compounded when he erroneously ordered tickets for two people instead of one person. When Brian discovered the pricing error, he immediately sent an email to Easy Flying notifying them of the error and asked for a refund. The case mentioned three peculiar aspects that should be taken into consideration since it will create a divergent scenario that would translate to a different legal position that could be taken by each of the parties in the case. It was mentioned that an Easy Jet website has the same colour scheme and layout with Easy Flying. Another matter that was mentioned is the lack of knowledge by Easy Flying of Brian’s transaction. The last peculiar aspect that was mentioned was the absence of tax in the price quoted by the website. Legitimate traders in the internet are mandated to include all taxes in their quotes17. It is assumed that www.EasyFlying.com having been identified as being owned by EasyFlying Ltd shall be considered as a legitimate website of a legitimate trader. Thus, it is safe to assume that Easy Flying Ltd will not allow its website to commit the basic mistake of not including in the computation of ticket prices the required taxes. Another element that should be added in the case is the manner in which tickets are procured in the airline industry. Due to the nature of the business, ticket availability is subject to confirmation through actual payment to ensure that actual seats are available for the ticket bought for a particular flight schedule. This is to ensure that two things do not happen. First, there will be less available seats than tickets bought and second the plane will be flying with less than the number of passenger required for the airline company break even18. Scenario A The mention of Easyjet and the lack of knowledge of Easy Flying with regards to Brian’s transaction when taken together and is considered material to the case leads to the logical conclusion that Easy Flying have been spoofed by the owners of the Easyjet website. Spoofing is a fraudulent scheme wherein a user accessing a website has been diverted to another website19. To illustrate: when Brian accessed www.Easyflying.com he was diverted to www.easyjet.com this would account for an element in the case wherein it was mentioned that Easy Flying has no knowledge of Brian’s transaction. Base on this premise the following questions will be answered. This is in violation of the Computer Misuse Act of 199020 and the Fraud Act of 200621. Question 1 EasyFlying’s lack of knowledge of Brian’s transaction could be an indication that Easyflying’s website was hacked and spoofed in favour of Easyjet22. In so far as the website’s failure to provide Brian notification of when the contract is finally concluded is not entirely correct. The website have provided the terms and condition of the contract after Brian have entered his bank details to which Brian assented to when he clicked the appropriate box. This can be considered as a final confirmation of the order and acceptance of the contract. However, as mandated by law Brian has a cooling off period wherein he can ask for a refund or termination of the contract without incurring any damages. The best course of action for Brian is to inform his bank that he is suspending any and all payment he has erroneously credited to Easyflying or Easyjet. Brian is well within his rights to cancel any payments made to Easyflying or Easyjet due to the existence of fraud. As indicated from the facts of the case Easyflying is not aware that a transaction has transpired between itself and Brian therefore the elements of fraud exist. For Easyflying, being a victim of hacking and then eventual spoofing, it is well within its rights to charge the registered owners of Easyjet.com for fraud under the Computer Misuse Act23. Due to the disruption and the business damage that Easyflying incurred as a resulf of Easyjet’s owners acts it can claim against the interest of Easyjet24. For Brian’s part the misrepresentation done by Easyjet.com to get his financial or banking information details for fraud constitute a crime25. Question 2 Easyflying for its part is not even aware of its transaction with Brian therefore it is not in a position to refund any monies to Brian. Even considering that Brian, was under the impression that it was accessing Easyflying instead of Easyjet due diligence shall not settle on Easyflying but on Brian. Internet transactions provide convenience and speed at which commercial dealings can be achieved. However, internet users are expected to be more prudent and discerning on the website it is accessing to determine that it is really the intended website the user is accessing. The more prudent course of action is for Brian to get in touch with his bank and instruct them to cancel the payments made to Easyflying or Easyjet. If in case recovery of the bank is not an option, the letter of Brian to Easyflying can be considered as a demand letter for a refund. However, a demand letter should also be sent to Easyjet, through the same website if it is at all possible. If in case that Easyjet do not have any office within the realm, recovering any amount from Easyjet would prove difficult. However, if Easyjet has an office within the European Union or any country thereat, recovery could be possible if the country where Easyjet has complied with all the mandated legislation of all EU directives. Scenario B This scenario would disregard the reference to Easyjet.com and would assume that Brian was able to transact directly with Easy Flying Ltd through its website Easyflying.com. This scenario would assume that the website is fully automated that would account for the assertion that Easy Flying Ltd is not aware of the transaction between the website and itself. The exclusion of the tax computation in this scenario will be regarded as an error in the computation or as a result of a faulty entry of data by Brian. Question 1 With regards to the question if a contract exist between the owner of the website and Brian the answer is in the affirmative. The website offers several tickets for sale that falls within the requirement of Brian at a price that is supplied by the website. Brian in turn signifies his acceptance of the price by supplying his bank details that would enable the website’s owner to charge him for the service or the products being sold. Brian further indicated his assent to the terms and condition of the contract thus the transaction could be considered as complete. In a normal commercial transaction the supplying of banking details to a website is considered actual payment. This is similar in effect to regular credit card transactions in a store in this case Brian will get an e-ticket confirmation that can be accepted in any airport. By any standard it is a complete and consummated transaction, Brian’s assent to the terms and condition of the website affirms the agreement between Brian and the owner of the website. Brian’s assent to the standard terms and condition by clicking the button binds him to the terms and condition of the owners of the website, the terms and condition acts as a binding contract between Brian and the registered owner of the website. However, the terms and condition should not be contrary to what the letter of the law mandate26. By supplying his financial details, Brian have consummated the sale since, it is tantamount to actual payment. Question 2 Response in internet transaction is valid when the recipient has already received the offer27. In this case Easyflying have not yet received the final confirmation of Brian with regards to the sale of the ticket. Therefore its price is still subject to change up to the time the sale has been consummated or Brian confirms the sale. However, Brian has the option to refund or correct his order within a finite time of which he did. Easyjet for its part do not have any choice but to accede to the refund request of Brian as mandated by law. Conclusion The position of Brian and Easy Flying including their legal options are anchored on the possibility of Easy Flying’s website being hacked or spoofed. This particular element would determine the actual participation of Easy Flying to the transaction that transpired over the internet. In this instance it is either Easy Flying who is at fault and responsible for the internet transaction or is it Easy Jet. In the event that Easy Flying was a victim of spoofing, it is clear that EasyFlying is an innocent victim in the same way that Brian was a victim of the spoofing in this scenario. Easyflying’s losses are from the potential customers it could have booked tickets covering the period its website was spoofed or hacked by Easyjet. While the losses of Brian and the other customers that is in the same situation would precipitate from their failure to inform their banks to withhold the payment to EasyFlying or to Easyjet. So far as Easyjet is concern if it is a legal trading entity, it could argue that the process in which Brian followed constitute a legal and binding perfected contract. Easyjet can argue that it was Brian who accessed their website and requested for the tickets and prices. Then it was also Brian who freely negotiated and entered into an agreement with the website. It was also Brian who assented to the terms and condition and freely entered his financial details. Therefore having been perfected a normal sales’ transaction. However, this position cannot be sustained for the following reasons even if the issue of spoofing and hacking will be negated. The price provided by the website is not complete since it did not include the taxes a clear violation of the provision of the law. So far as the law is concerned this would constitute a failure of offer that frustrates the perfection of a binding contract between Brian and the website. Easyjet did not provide an accurate email wherein Brian could get in touch with it, which is another violation of the provision of the law. Having been informed of the erroneous price because of the website’s failure to add the tax and the increased in prices including the erroneous number of tickets bought, Brian should have had the option to withdraw from the contract which the website did not provide him. Easyjet for its part should refund the amount to Brian. With regards to the Terms and Condition that could contain provisions that would frustrate the effort of Brian to recover his money and even assuming that Brian assented to the terms and condition by clicking on the appropriate boxes. The terms and condition should not violate the provisions of the law, if the terms and condition does violate the law it will be considered null and void. In the scenario wherein it is suggested that EasyFlying’s website is completely automated and it makes its offer and acceptance of booking based on certain parameters supplied by the customer provides a different legal option for EasyFlying and Brian. www.easyflying.com although automated is still within the control of Easy Flying Ltd being its registered owner and the organization responsible for the update, maintenance and management of the website. The exclusion of taxes is a clear violation of the law and by that in itself Brian has the right to withdraw his order for the ticket, the option to correct his order and definitely the option to refund. Easylfying for its part should accede to the request of Brian as detailed in his email. Easyflying for its defence cannot invoke its lack of knowledge to Brian’s transaction due to the fully automated nature of its website. Easyflying Ltd being the registered owner of the website is responsible for all the transaction its website enters into. Easyflying is likewise responsible for the erroneous computation of the website’s program that excluded the taxes in Brian’s ticket. If in case the error emanated from Brian’s faulty keying in of information that caused the computer program to exclude the taxes in its final computation of Brian’s ticket prices, the fault would be Brian’s. However, Brian’s incorrect entry of information does not erase Easyflying’s responsibility to correct and resolve the error. Easyflying as the owner of the website is mandated to assist its customers to ensure a smoother e-commerce experience. Bibliography Carey, L. H., 2010. Scammers Among Us Beware and Fraud. 1st Edition ed. London: Eloquent Books. Cortes, P., 2010. Online Dispute Resolution for Consumers in the Euroean Union (Routledge Research in Information Technology and E-Commerce Law). 1st Edition ed. 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