Offering financial services over the Internet: What is possible and how to protect consumers?

Modern means of communication are increasingly being used for the provision of financial services. This paper shows that although in Belgium it is legally possible to conclude an agreement relating to financial services completely online, in practice it often remains impossible to perform all legal acts to conclude the contract electronically. However, this does not mean that Belgian consumers actually have to go to their financial institution to sign the contract, since many institutions enable consumers to enter into a distance contract. In view of this, this paper also aims at examining whether the techniques which are being used by the legislator to protect consumers – i.e. the obligation to provide certain information and the right to withdraw from the contract – are effective.     

The unintended consequence of doorstep consumer protection: surprise,reciprocation, and consistency

Cooling-off periods are universally employed in doorstep selling regimes. Paired with a right for consumers to withdraw from the contract, this legal instrument seeks to protect consumers against superior skilled and knowledgeable sellers thus restoring the balance of interests. According to prior literature, cooling-off periods also serve an economic function by moderating the abuse of market power, by mitigating problems of hidden characteristics, and by promoting consumer choice. If their drawbacks—mainly the creation of consumer moral hazard and shifting of risk to the seller—can be contained, cooling-off periods are hence supposed to yield efficiency gains. By thinking out of this box, the present paper showcases that cooling-off periods also establish the perverse incentive for the seller to increase consumer compliance to a level which outlasts the cooling-off period. I argue that inevitably occurring psychological factors and transaction costs from the cooling-off regime amplify each other, thus creating a hard-lock status-quo bias. Based on behavioural insights and transaction cost theory, I predict that an inefficiently high number of consumers will enter into a doorstep contract and that, at the same time, the number of cancelled contracts will be inefficiently low. Consequently, I propose to change the default inherent in current cooling-off regimes from presumed consent to presumed withdrawal in order to debias consumers’ withdrawal decision.     

欧盟对分时度假及相关产品的法律规制

欧盟主要通过《分时度假指令》和《不正当商业做法指令》对分时度假产业进行法律规制,《分时度假指令》赋予消费者对购买分时度假产品合同的撤销权,《不正当商业做法指令》则禁止销售商在销售分时度假产品及相关产品时的不正当商业做法。由于《分时度假指令》的适用范围过于狭窄,欧盟已提出了对其的修改建议。总结欧盟规制分时度假产业的经验,我国应对分时度假产业进行法律规制并结合行业自治。     

论欧盟及英法两国对消费者合同不公平条款的认定

消费者合同双方缔约地位不平等,易导致合同权利义务失衡,损害消费者利益。英国先后对不公平合同条件及消费者合同不公平条件立法,法国通过认定附合合同及禁止权利滥用达到保护消费者目的。欧盟就消费者保护颁布了四个指令,其中1993年指令附件列举了17种不公平条款,为欧盟绝大多数成员国移植。欧盟2008年法案附件作了调整,且分类为“黑名单”与“灰名单”。即便在清单之外,合同条款若违反诚实信用,导致权利义务明显失衡,也会被认定为不公平。格式合同广泛存在于消费者合同中,而不公平条款的最主要形态为格式条款。考虑我国保护消费者与发展经济需求,建议对格式条款进入消费者合同设置程序与实体双重门槛,仿照欧盟规定两类名单,初期可扩展“灰名单”,尔后再予调整。     

Is the consumer directive advantageous for the consumers?

According to the EU Consumer Protection Directive a purchaser has the right to ask for either repair or replacement of a defect product, whereas before in some member countries only one of these remedies were available. It seems to be taken for granted in the Directive and in Green Papers that such a reform is an advantage to the consumers. An analysis of a case at the Supreme Court of Norway demonstrates that the opposite might be true. It will be argued that both purchasers and vendors will be better off if the Directive is interpreted in accordance with economic theory. Harmonization of consumer protection across EU countries might be counterproductive. The analysis is of general interest in the sense that it demonstrates that mandatory changes in rights and obligations among contracting parties may have distributive effects different from what is commonly assumed.     

The Distance Selling Directive: Points for Future Revision

The EU Distance Selling Directive that was implemented in UK law in the Consumer Protection (Distance Selling) Regulations 2000 has provided guidelines for the protection of consumers undertaking distance transactions. The following paper discusses the provisions of the Directive with particular reference to e-commerce via the Internet, highlighting some possible areas for further consideration. Articles within the Distance Selling Directive are examined for problems of legal interpretation and implementation. There is discussion of: Article 2 (Definitions) and difficulties with its fundamental concepts of 'supplier' and 'consumer'; unnecessary exemptions in Article 3 (Exemptions); the 'local taxes' headache (and others) in Article 4 (Prior Information) and using e-mail under Article 5 (Written Confirmation of Contract). Under Article 6 (Right of Withdrawal), the 'cooling off period', exempted goods and services, refunds and reclaiming goods, and for Article 7 (Performance) substitute goods and contract law implications, are investigated. Finally Article 8 (Payment by Card) looks at protection against fraudulent card use.     

Online penny auctions and the protection of the consumer under EU law

This paper examines online penny auctions, which currently attract consumer traffic but pose consumer risks also. It discusses pressing questions such as whether they are scams, entertainment shopping or gambling. It shows that though they cannot readily be considered as scams, they are suspiciously risky for consumers. Moreover, contrary to what penny auctioneers suggest, they do not allow for consumer shopping. They also share several characteristics with gambling and therefore, the possibility of legally classifying them as such is worth exploring. If they are not gambling, consumer protection legislation is fully applicable to them and can satisfactorily protect penny consumers. If penny auctions are legally classified as gambling however, protection will greatly be enhanced; they will (additionally) be subjected to strict and detailed gambling laws at least in the UK, where a mature gambling regulatory regime exists. Certain disadvantages of labeling penny auctions as gambling can relatively easily be remedied through suitably adjusting gambling laws. The paper concludes by suggesting possible approaches of legal regulation of this new online phenomenon.     

欧洲民法典草案消费者买卖合同风险移转研究

风险移转制度是货物买卖核心制度之一,也是立法者最需要严肃对待的问题之一。基于交付主义的优越性,欧洲民法典草案明确采纳了该理论。然而,随着消费者概念的出现及消费者保护主义理念的兴起,传统的交付主义及其具体规则在适用于消费者买卖合同时,不可避免地产生问题。为此,有必要在消费者买卖合同中确立风险移转的特别规定。     

PERSONAL DATA PROTECTION: RETHINKING THE REASONS,NATURE, AND LEGAL FRAMEWORK

This paper rethinks the reasons for and the nature and means of personal data protection. The reasons for personal data protection are that it could promote the fairness and effectiveness of information flow, help individuals develop their independent personality, and equip them to deal with risks. With respect to the nature of personal data, this paper argues that such data should not be perceived from a purely individualistic point of view. Rather, there should be a contextualized understanding of the data, which considers the appropriate information flow of personal data within a particular context. Regarding the legal framework of personal data protection, this paper suggests that consumer protection law and public law are better equipped to protect personal data than tort, contract, or property law.     

浅谈谢绝自带酒水

不得自带酒水是一个老问题,但对它的认识确是空前的一致,无论是学界还是消费者保护的实践,都把它作为侵犯消费者权利的无效的霸王条款。笔者从消费者权利的界定和刨析入手认为该约定既不侵犯消费者的权利,又不违反合同法和其他相关法律的强制性规定,应当成为消费合同的有效的组成部分,消费者应当予以遵守。进而认为对消费者权益的保护应当以法律的理论和相关规定为依据,而不是朴素的感情。     

Electronic databases: Protecting your investment – An analysis of the legal rights in electronic databases under UK law

Electronic databases are an important part of the information economy. They are now one of the key platforms for the distribution of information and other contents. The European Court of Justice, in November 2004, gave its first rulings on the scope of database right, introduced by Directive 96/9/EC on the legal protection of databases. These rulings significantly curtail the scope of that right, and limit the protection afforded to database producers under that Directive. The UK courts, in January of last year, handed down a judgment which has important implications for the copyright protection afforded database structures and to “look and feel” elements of database application software, and the scope of Section 50D of the Copyright, Designs and Patents Act 1988 (which sets out certain statutory permitted acts in relation to database use). This article looks at the implications of these judgments, it analyses some of the key legal rights that can apply to electronic databases, and the increased importance that rights of confidentiality and contract are likely to have on the commercialisation of electronic databases in light of these rulings.     

Revoking consent: A ‘blind spot’ in data protection law?

The flow of personal data throughout the public and private sectors is central to the functioning of modern society. The processing of these data is, however, increasingly being viewed as a major concern, particularly in light of many recent high profile data losses. It is generally assumed that individuals have a right to withdraw, or revoke, their consent to the processing of their personal data by others; however this may not be straightforward in practice, or addressed adequately by the law. Examination of the creation of data protection legislation in Europe and the UK, and its relationship with human rights law, suggests that such a general right to withdraw consent was assumed to be inbuilt, despite the lack of express provisions in both the European Data Protection Directive and UK Data Protection Act. In this article we highlight potential shortcomings in the provisions that most closely relate to this right in the UK Act. These raise questions as to the extent of meaningful rights of revocation, and thus rights of informational privacy, afforded to individuals in a democratic society.     

论消费者保护视角下缺陷产品召回制度的完善

为确保企业履行产品安全保障义务,美国创设了缺陷产品召回制度,以促使企业承担社会责任、维护消费者利益与公共安全.美国的缺陷产品召回立法完善,召回主体和范围明确,在保护消费者人身和财产安全方面发挥着积极的作用.我国新修改的《消费者权益保护法》从保护消费者权益的角度,明确了产品召回与消费者权益保护的关系,但我国的产品召回机制,从立法到实施都具有相当的局限性,影响其功能的正常发挥.为保护消费者的利益,有必要检讨我国缺陷产品召回之规定.作为对现实的回应,应统一产品召回立法,明确产品召回主体的范围,扩大产品召回对象的范围,并在产品召回程序中完善消费者的参与,进而实现保护消费者权益、维护社会公共安全和稳定经济秩序之目的.     

Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights

The trend towards the financialisation of housing since the 1980s and the global financial crisis exposed a dramatic lacuna in the legal protection of the right to housing. Yet, the right to housing features not only in national and international human rights instruments, but also in the EU Charter of Fundamental Rights. Charter rights are increasingly finding expression in the case law of the Court of Justice of the European Union (CJEU). In particular, drawing on the Charter, the CJEU's interpretation of EU consumer law is moving towards a recognition of housing rights as inherent components of consumer protection. On the basis of such developments, this article examines whether there is scope to extend this human rights approach to new areas – namely, to the Mortgage Credit Directive (2014) – a major EU harmonising measure – and to the work of EU institutions now responsible for banking supervision. The article concludes that, if guided by the Charter of Fundamental Rights, the case law of the CJEU and the practice of supranational banking supervision could significantly enhance the protection of the right to housing, both at EU and Member State level.     

Economic analysis of standard form contracts: the monopoly case

The terms of standard form contracts are rarely known to consumers. Still, it is often argued that few consumers who read and understand the contract can assure that it does not include sub-optimal terms. According to this argument, if the proportion of informed consumers is sufficiently high, they can secure an optimal set of contract terms to the benefit of all other consumers. This paper shows that when suppliers can adjust the content of the form contract, the few reading consumers cannot correct the market failure. In fact, unless all consumers read and understand the form contract, a monopoly is always encouraged to offer sub-optimal terms, i.e., terms that benefit her but at a higher cost to the consumers.      

惩罚性赔偿消费公益诉讼研究

通过个别诉讼行使惩罚性赔偿请求权,难以对经营者形成足够的威慑力,消费者协会、检察机关提起惩罚性赔偿消费公益诉讼的必要性客观存在。即使将消费者协会提起公益诉讼的"公益性职责"与检察机关提起公益诉讼的"职权"勉强解释为立法者赋予消费者协会、检察机关以形式性惩罚性赔偿请求权,以该请求权为基础的惩罚性赔偿消费公益诉讼也只是受害消费者享有的惩罚性赔偿请求权的集中行使方式。除非立法机关为消费者协会、检察机关另行创设实质性惩罚性赔偿请求权,惩罚性赔偿消费公益诉讼注定与特定受害消费者存在密切联系,无法从根本上破解惩罚性赔偿金的计算及其发放难题。因而,惩罚性赔偿消费公益诉讼对行政处罚与刑事罚金仅构成补充,在完善惩罚性赔偿消费公益诉讼制度的同时,应当强化惩罚性赔偿消费公益诉讼与其他消费者权益保护手段之间的协作机制。     

Sui generis database protection: a new start for the UK and Ireland?

LEGAL CONTEXT: The decisions of the ECJ in William Hill and Fixtures Marketingconstitute setbacks for rightholders seeking to protect thecontent of databases from unauthorised use by others. This developmentis keenly felt in Ireland and the UK because of the absenceof any overlapping protection in the form of unfair competitionrelief against parasitical activities by competitors. Ironically,post-Feist US copyright law, in the form of the Montgomery CountyRealtor case (1995), when contrasted with the recent Dutch ZAHdecision (2006), shows that US copyright law affords a greaterlevel of protection than is available in the EU under the DatabaseDirective. The ZAH decision also builds upon earlier Germancase law, virtually eliminating liability for linking to websitematerial made available to the public. KEY POINTS: In ZAH, the Dutch Court's interpretation of the Directive andcriteria to be met before content may be copyright protectedwas very restrictive, in stark contrast to the approach of mostCommon Law judges. The result is a very different one to thatintended by the drafters of the Directive, a point reinforcedby the European Commission's own 2005 assessment of the Directive. PRACTICAL SIGNIFICANCE: The Directive has been a disaster from every perspective. Lawmakersin the UK and Ireland may feel that the time is right to consideradopting national measures to produce a more balanced protectivemeasure in respect of commercial databases and an effectivemeans of stimulating investment by following unfair competitionprinciples, rather than the quasi-copyright model of the suigeneris right. ZAH demonstrates that until the European Commissiontackles the critical issue of a common originality standard(which is very unlikely) national differences will be inevitablewithin EU copyright law.     

欧洲民法典草案消费者撤回权制度研究

基于保护消费者免于遭受侵略性商业行为、去除跨境、在线交易障碍,以及保护复杂合同下处于信息弱势之消费者之目的,欧洲民法典草案明确规定了消费者撤回权制度,并对消费者撤回权概念、适用范围、行使方式、期限、告知义务及效果等作了规定。民法典中规定消费者撤回权,体现了民法理念从形式正义到实质正义,民法主体从抽象人格到具体人格、从强而智到弱而愚者的转变。欧洲民法典草案撤回权制度对我国相关制度的完善具有重大借鉴意义。     

“枪手代笔”的著作权问题与消费者利益保护

"枪手代笔"行为是否合法,关键看署名权的转移是否合法。实践中,当事方通常借助三种途径实现署名方式的转移:转让著作权、委托创作作品中的约定和署名权的行使。围绕着这三种行为的合法性,存在两种不同的观点:意思自治视角坚持可自由转移的立场,公共利益视角则反对这种转移。实际上,意思自治原则与公共利益理念结合起来才能够客观评判"枪手代笔"的合法性。更为重要的是,文化消费者的利益应该受到重视。署名权的转让、约定和行使,影响到文化消费者的知情权、选择权和公平交易权。为保障文化消费者的利益,建议著作权法规范署名方式,打击有损公共利益和消费者利益的"枪手代笔"行为。     

Enter the quagmire – the complicated relationship between data protection law and consumer protection law

This article examines the complex relationship between consumer protection law and data protection law, particularly within the EU's online environment, and highlights the problems that stem from this complexity. It suggests that, while there are significant similarities between their respective sources, tools and purposes, there are also arguable differences between consumer protection law and data protection law. One such arguable difference is found in that, while consumer protection law can be seen to merely set a floor in its pursuit of a sufficiently high level of consumer protection, data protection law – due to its clearly articulated dual purposes of (a) protecting individuals with regard to the processing of personal data and (b) providing for the free movement of such data – sets both a floor and a ceiling.Having discussed the relationship between consumer protection law and data protection law in more detail, the argument is made that it seems possible to conclude that the balance struck in the Data Protection Directive, and soon in the General Data Protection Regulation, places limitations on consumer protection law. The implications of this conclusion are then examined briefly in the context of some matters currently coming before the CJEU and the contours of a framework are presented, addressing situations where a data protection-based liability claim is pursued against a third-party non-controller under consumer protection law.