As the first supporting administrative regulation of the Consumer Rights and Interests Protection Law, the "Regulations for the Implementation of the Consumer Rights and Interests Protection Law of the People's Republic of China" (hereinafter referred to as the "Regulations") will come into force on July 1. In response to the new problems that have emerged in the traditional consumption field and the platform economy in the mainland in recent years, such as the industrial chain of praise, unfair format terms, prepaid consumption infringement, big data "killing", excessive collection of consumer information, etc., the "Regulations" have provided accurate responses.
Highlight 1: For the first time, differentiated pricing was standardized for big data
In recent years, it has been common to see serial consumption "traps" such as the widely exposed platform big data "killing ripeness" and the automatic renewal of subscriptions at the original price with preferential subscription discounts. In essence, these problems are caused by the lack of implementation of consumers' right to know and the right to make independent choices on the basis of information, in this regard, the "Regulations" have established clearer and more accurate information disclosure requirements one by one, and more comprehensively strengthened the protection of consumers' rights and interests.
In view of the defects of gifts and trial packs, the second paragraph of Article 7 of the Regulations stipulates that the goods and services provided by operators free of charge shall also bear the obligation of safety guarantee and the liability for warranty for defects. Specifically, it means that free goods or services should meet the red line of protecting personal and property safety, which means that operators cannot be exempted from liability on the grounds of "free provision" or "gifts". Combined with common market operation practices, the "Regulations" further clarify that "free provision" includes rewards, gifts, trials, etc., and focus on adding compliance requirements for defective free goods or services, which shall meet three requirements, all of which are indispensable, that is, do not violate the mandatory provisions of the law; It does not affect the normal use performance; Fully fulfill the obligation to inform, and truthfully inform consumers in advance.
In response to price discrimination such as "ripeness" of big data, the second paragraph of Article 9 of the Regulations stipulates that business operators shall not set different prices or charging standards for the same goods or services under the same transaction conditions without the knowledge of consumers. This is also the first time that the mainland has regulated differentiated pricing in administrative regulations, clarifying that differentiated marketing is premised on protecting consumers' right to know, demonstrating market fairness. Business operators do enjoy the right to operate independently, and business operators in areas with full market competition also enjoy the right to set prices independently in accordance with the law. However, in real life, some operators will launch a variety of discount promotions, and formulate complex marketing rules and pricing algorithms, resulting in different actual transaction prices for consumers on the same product, and operators evade responsibility by thinking that this is a normal marketing behavior. In these cases, the consideration paid by the consumer for the same product or service is different, thus affecting the consumer's right to fair dealing. Therefore, this provision stipulates that even if the marketing is fair and reasonable, the merchant shall truthfully and comprehensively inform the consumer of the information that has important interests in the marketing rules, so as to ensure that the consumer makes his or her own choice on the basis of full information and fully protect the consumer's right to know.
Highlight 2: Remind you of the auto-renewal requirement in a conspicuous manner
In daily life, because you can enjoy a discount by choosing "automatic renewal", many users will choose automatic renewal, but after expiration, some platforms will not remind users that they will automatically renew but "deduct it", and Article 10 of the "Regulations" clarifies the obligation of operators to remind them in a conspicuous way. That is, where proprietors provide services by means such as automatic extension or automatic renewal, they shall draw the attention of consumers in a conspicuous manner before they accept the service and before the date of automatic extension or automatic renewal, so that they can make a choice with full enjoyment of the right to know.
There are also some operators who use QR code payment to force registration, online booking and bundle vouchers, etc., infringing on consumers' right to make their own choice. Article 11 of the Regulations stipulates that business operators shall not use violence, coercion, restriction of personal freedom, or other means or use technical means to compel or covertly compel consumers to purchase goods or receive services, or exclude or restrict consumers from choosing goods or services provided by other business operators. Where proprietors provide goods or services through methods such as collocation or combination, they shall draw consumers' attention in a conspicuous manner.
In addition, overlord clauses are a stubborn problem in the consumer field, and many netizens have encountered unfair format terms such as "orders are not refunded or exchanged", "registration is deemed to be agreed", and "jurisdiction is local only". Article 17 of the Regulations stipulates that business operators shall not use standard clauses to unreasonably exempt or reduce their liabilities, increase consumers' responsibilities, or restrict consumers' rights to modify or terminate contracts in accordance with the law, choose litigation or arbitration to resolve consumer disputes, or choose the goods or services of other business operators.
The "Regulations" also add the "right to suggest" for the recall of defective products by consumers in Article 8, that is, if consumers believe that the goods or services provided by the operators may be defective and pose a danger to personal and property safety, they may report the situation or make suggestions to the operators or relevant administrative departments. Where proprietors discover that the goods or services they provide may be defective and pose a danger to the safety of persons or property, they shall promptly employ relevant measures in accordance with article 19 of the Law on the Protection of Consumer Rights and Interests.
Highlight 3: Clarify the "intact" standard for seven-day no-reason returns
The convenient return and exchange mechanism is one of the driving forces for online shopping, but it is also very easy to cause controversy in daily life. It is precisely for this reason that the relevant departments have successively imposed restrictions on the 2013 revision of the Consumer Rights and Interests Protection Law and the Interim Measures for the Return of Goods Purchased Online within Seven Days without Reason. The "Regulations" further supplement and refine the blank space in the above provisions.
In view of the scope of statutory no-reason returns, the Law on the Protection of Consumer Rights and Interests of the Mainland and the Interim Measures for the Seven-day No-reason Return of Goods Purchased Online have made it clear that, in principle, consumers have the right to return goods without reason within seven days, but at the same time, two types of goods that are not subject to statutory no-reason returns are also excluded in two ways, the first category is the four types of goods that are explicitly excluded, namely, consumer-made, fresh and perishable, digital goods downloaded online or unpacked, and delivered newspapers and periodicals; The second category is other goods that are not suitable for return according to the nature of the goods and confirmed by the consumer at the time of purchase.
On the one hand, the first two paragraphs of Article 19 of the Regulations make it clear that if a business operator sells goods through the Internet, television, telephone, mail order, etc., it shall comply with the provisions of Article 25 of the Law on the Protection of Consumer Rights and Interests, and shall not expand the scope of goods that are not subject to unjustified returns without authorization; On the other hand, business operators shall mark in a conspicuous manner the goods that are not eligible for no-reason returns, prompting consumers to confirm at the time of purchase, and must not make non-applicable no-reason returns an option for consumers to agree to by default, and business operators must not refuse to return goods without no reason without consumers' confirmation. In other words, the labeling, prompt confirmation and express confirmation should simultaneously constitute the prerequisites that can be excluded from application.
Although the Interim Measures for the Seven-Day Return of Goods Purchased Online without Reason have made it clear that the integrity of the goods will not be affected by the opening of the packaging of the goods by consumers based on the need for inspection, or reasonable debugging to confirm the quality and function of the goods, the measures are only applicable to online shopping scenarios. The relevant provisions of the "Regulations" are applicable to various scenarios such as the Internet, television, telephone, mail order, etc., and it is clarified that consumers need to open the packaging of the goods based on inspection, or make reasonable adjustments to confirm the quality and function of the goods, and at the same time "do not affect the original quality, function and appearance of the goods", and should also be deemed to meet the standard of "intact".
Highlight 4: A consumer dispute resolution mechanism needs to be established for live streaming
Advertising content is likely to have a substantial impact on consumers' purchasing decisions, and has always been a high-frequency minefield for law enforcement cases. In terms of advertising and publicity, the Regulations clearly require operators to accurately disclose or prominently indicate important matters, and the relevant highlights are worth paying attention to.
According to the statistics of the State Administration for Market Regulation, in the past five years, the scale of the live broadcast e-commerce market has increased by 10.5 times, and the increase in complaints and reports has been as high as 47.1 times, which is significantly higher than that of traditional e-commerce. Some e-commerce operators have engaged in acts such as "fictitious reviews", "positive reviews and cashbacks" and "deletion of negative reviews", which have harmed fair competition and fair trade. Considering that sales volume and user evaluation are important bases for influencing consumers' willingness to buy, on the basis of the general provisions of the Anti-Unfair Competition Law and the E-Commerce Law of the Mainland, which prohibit fictitious transactions and fabricated user evaluations, the first paragraph of Article 9 of the Regulations clearly requires that business operators shall not conduct false or misleading propaganda to deceive or mislead consumers by means of fictitious business operators' qualifications, qualifications or honors, fictitious transaction information and business data of goods or services, and tampering, fabricating or concealing user evaluations. In particular, the control method of "concealing negative reviews" is proposed, which is also included in the scope of regulation.
Article 14 of the Regulations stipulates the protection of consumer rights and interests of live-streaming marketing platforms, and further refines the regulatory provisions on e-commerce advertising. Specifically, where business operators provide goods or services through online live streaming or other means, they shall perform obligations related to the protection of consumer rights and interests in accordance with law. Livestream marketing platform operators shall establish and complete systems for the protection of consumer rights and interests, and clarify mechanisms for resolving consumer disputes. Where consumer disputes arise, livestream marketing platform operators shall, upon the request of consumers, provide necessary information such as information on livestream room operators and livestream marketers, as well as records of relevant business activities. Where livestream content published by livestream room operators or livestream marketers constitutes a commercial advertisement, the obligations of the advertisement publishers, advertising agents, or advertising spokespersons shall be performed in accordance with the relevant provisions of the Advertising Law. This also clarifies from the level of administrative regulations that the provisions of the Advertising Law may apply to the content of online live broadcast promotions, and live broadcast room operators and live broadcast marketers are likely to constitute advertising agents and advertising spokespersons. If the operator violates the above provisions, it shall be subject to administrative punishment.
Highlight 5: Increase the obligation of merchants to inform in advance for prepaid consumption
Prepaid consumption is widely used in entertainment, fitness, beauty, tourism, catering and other life scenarios, compared with sales contracts and service contracts, its most significant feature is that consumers pay in advance to operators. At present, due to the lax supervision of the commercial prepaid card market and the lack of risk prevention mechanisms, large-scale complaints and disputes are often triggered.
Article 22 of the Regulations is further refined on the basis of Article 53 of the Law on the Protection of Consumer Rights and Interests, adding the requirement that "the operator shall stop collecting advance payments when there is a major business risk" and the obligation to notify in advance that "the operator decides to suspend business or relocate the service premises". In view of the phenomenon of reducing the quality of services after membership, the first two paragraphs of Article 22 of the "Regulations" stipulate that if a business operator provides goods or services by receiving advance payment methods, it shall enter into a written contract with consumers, stipulating the specific content of the goods or services, the price or fees, the method of returning the advance payment, the liability for breach of contract, and other matters. After collecting advance payments, proprietors shall provide goods or services in accordance with the agreement with consumers, and must not reduce the quality of goods or services, and must not arbitrarily increase prices. Where proprietors fail to provide goods or services as agreed, they shall perform on the agreement or refund the advance payment in accordance with the consumer's request.
In response to the problem of merchants "losing contact and running away", the third paragraph of Article 22 of the "Regulations" requires that if a business operator has a major business risk, which may affect the normal provision of goods by the business operator in accordance with the contract or transaction habits, it shall stop collecting advance payments. At the same time, when a business operator decides to suspend business or relocate a service venue, it shall notify consumers in advance, and in accordance with the requirements of Article 21 of the "Regulations", it shall announce the effective contact information and other information of the business operator in a conspicuous position on its business premises, website, online store homepage, etc., 30 days in advance; In such a case, the consumer has the right to request the operator to continue to perform the obligation to provide goods or services, or to request a refund of the balance of the advance payment that has not been consumed, in accordance with the relevant provisions of the state or the contract.
Highlight 6: Prohibit excessive collection of personal information by business operators
Nowadays, consumers are paying more and more attention to the protection of personal information, and the excessive collection and use of personal information by some apps has become a hot issue in consumer rights protection in recent years. The Regulations reaffirm the protection of consumers' personal information and require business operators to follow the "principle of minimum necessity" when collecting personal information. Article 23 stipulates that business operators shall protect consumers' personal information in accordance with the law. When providing goods or services, proprietors must not excessively collect consumers' personal information, and must not use methods such as one-time general authorization or tacit authorization to compel or indirectly compel consumers to consent to the collection or use of personal information that is not directly related to business activities. Where proprietors handle sensitive personal information such as consumers' biometrics, religious beliefs, specific identities, medical health, financial accounts, whereabouts, and tracks, as well as the personal information of minors under the age of 14, they shall comply with the provisions of relevant laws and administrative regulations. In addition, Article 24 also clearly states that business operators shall not send commercial information or make commercial telephone calls to consumers without the consent of consumers.
In addition, the Regulations also give special protection to the elderly and minors, who are special consumers. Article 15 stipulates that business operators shall not induce consumers such as the elderly to purchase goods or services that clearly do not meet their actual needs through false or misleading publicity, fabricating or exaggerating the efficacy of goods or services such as treatment, health care, and health preservation. Article 16 focuses on the issue of minors' addiction to games, providing that operators providing online gaming services should set up mechanisms to prevent minors' addiction and protect minors' physical and psychological health in accordance with law.
For the first time, the Regulations stipulate that after the relevant administrative department accepts a complaint, if the operator and the consumer agree to mediate, they shall mediate in a timely manner according to their duties, highlighting the concept of "whoever is in charge shall protect the rights". It also stipulates the acceptance requirements, time limit, entrusted mediation, appraisal and testing procedures for complaints, such as major, complex, and consumer disputes involving many people, which can be included in the government's random inspection and inspection, "one appraisal and one solution", which also alleviates the pain points that consumers often reflect that appraisal is expensive and difficult to identify.
Highlight 7: Reasonable restraint on consumer behavior for improper returns
Not long ago, an online store operator in Jinhua, Zhejiang Province, said on social media that some students from a school in Heilongjiang returned their clothing after participating in the event, resulting in the merchant facing a secondary sales dilemma and causing an economic loss of more than 8,000 yuan. This type of misreturn is not an isolated case, and there have been a number of similar cases in recent years.
Considering that consumers are often in a relatively "weak" position due to information asymmetry and other reasons, as well as the chaos of online shopping traps, it is necessary and reasonable to give special care and protection to consumers, but if such "inclined protection" is improperly used for profit-making purposes, it will cause abusive litigation or cause continuous multi-dimensional and excessive blows to operators, and it will also deviate from the value orientation of honesty and trustworthiness. Therefore, while the Regulations reasonably add and clarify the obligations of operators, many provisions also emphasize the protection and care of the legitimate rights and interests of operators, as well as reasonable constraints on the ways of consumer rights protection.
In view of the methods and purposes of consumer rights protection, the "Regulations" for the first time stipulate that complaints and reports shall be acted in accordance with the law, and have repeatedly used words such as "rational rights protection" and "lawful rights protection" in the provisions, and clearly added general requirements, that is, Article 27 stipulates that "complaints and reports shall comply with laws, regulations and relevant provisions, and shall not use complaints and reports to seek improper benefits, infringe on the legitimate rights and interests of business operators, and disrupt the order of the market economy." ”
In response to improper return behaviors such as "seven-day no reason to try on" and "overlord meal", the fourth paragraph of Article 19 of the "Regulations" emphasizes that consumers who return goods without reason shall follow the principle of good faith, and shall not use the no-reason return rule to harm the legitimate rights and interests of operators and other consumers.
With regard to the punitive damages system of "one refund and three compensations", on the basis of the compensation basis in the first paragraph of Article 55 of the Law on the Protection of Consumer Rights and Interests, Article 49 of the Regulations absorbs the consensus in judicial and law enforcement practice in recent years, and adds two additional exceptions. First, there are defects in the labels, instructions, promotional materials, etc., of goods or services that do not affect the quality of goods or services and will not mislead consumers. This provision clearly emphasizes the product labels and publicity materials, which are the objects that are very likely to attract attention and claims in practice, reflecting the trend of the legislature in identifying controversial acts such as profit-making claims and professional anti-counterfeiting. The second is to defraud the operator of compensation by means of entrainment, bag dropping, counterfeiting, tampering with the production date of the goods, fabricating facts, etc., or extorting the operator, this clause sounded the alarm bell for malicious claims, and at the same time clarified that the act of fraudulent compensation or extortion should bear the corresponding administrative and criminal liability.
(Source: Beijing Daily, June 26, 2024, page 14; Author: Bai Xue, Unit: Beijing Fourth Intermediate People's Court; Image source: original with picture)
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