Internet law governs the relationship between the internet and all fields of law and also stomachs how legislation and legal principles govern the use of the internet and all forms of the internet. The internet is a broad field that evolves every time. Laws surrounding internet use and its components cannot be solely informed by precedent and common law hence a great uncertainty regarding what is permitted according to internet law. In a world where everything revolves around the internet, there is still a great deal to be discovered and put down concerning internet usage and the law. The need for internet flexibility is overwhelming because of the breadth and complexity of the internet and all its potential liabilities. Every aspect of law touches on the internet, a fact which is inevitable. Intellectual property, being one of the areas in the law that are not fully exploited is affected by the internet thus consumer law is no exemption. Consumer law is married to the internet.
Consumer protection is a regulatory jurisdiction of laws designed to ensure the rights of consumers, as well as fair trade, accurate information in the marketplace and competition, are well protected, for example, a government may require businesses to disclose detailed information about products mostly in areas where public health and safety is an issue, such as the food sector. Consumer protection rights are laws meant to prevent businesses that engage in fraud and stipulated unfair practices from gaining an advantage over other lawful business competitors. They also provide additional protection for those most vulnerable people and businesses in society. Consumer protection in conjunction with consumer rights and consumer organisations help consumers make better choices in the marketplace and get help with consumer complaints.
We cannot talk about consumer protection and consumer rights without touching on the basic concept of the consumers. The consumers are the key players here, without them, there would not be such laws as consumer protection laws. A consumer is defined as someone who acquires goods and services for direct use or ownership rather than for resale or use in production and manufacturing (Lehman and Phelps, 2005). Consumer interests can also be protected by initiating competition in the markets which may, directly and indirectly, serve consumers consistent with the economic efficiency. Consumer activism via non-government organisations and individuals do protect consumer rights too. The United Kingdom is a member state of the European Union, is bound by the consumer protection directives of the European Union meaning residents of the United Kingdom are directly linked by EU regulations. The United Kingdom laws are emerging as independent when it comes to its law through the influence of the European Union Laws even though its laws originated within the ambit of contract and tort.
The United Kingdom through the power of the Fair Trading Act 1973 established the office of the Fair Trading, OFT, that enforces both consumer protection and competition law that acts as the United Kingdom economic regulator (Reynolds and Pardoe, 1975). The director general of Fair Trade, being the head of the office of the Fair Trade deals with complains made on consumer protection issues. However, the Citizens Advice Consumer Service has taken over from the office of Fair Trading thus complaints, and problems are taken to the Citizens Advice Consumer Service that provides legal advice to complainants and in some instances re-direct an individual charge to Trading Standards for investigation.
The Enterprise Act 2002 gives restrictions such that individual complainants are unable to be told whether their case is being investigated or not. In sporadic cases, Consumer Direct may direct a considerable number of complaints to the Office of the Fair Trading to be considered as a systemic complaint. Groups such as The Consumers Association and the statutory consumer protection body engages the Office of Fair Trading on Consumer Focus. The Office of Fair Trading rarely prosecutes companies and businesses instead they give a light touch regulation approach with intensive investigations. Many of the consumer protection laws, e.g., Distance Selling Regulations 2000 and Unfair Terms in Consumer Contracts Regulations 1999 are the United Kingdom implementations of European Union directives. The Office of Fair Trading is one of the bodies responsible for enforcing these rules. It leads to a problem that these examples of legislation are clearly designed to deal with individual complaints but the Office of Fair Trading will only deal with systemic complaints and will ignore individual complainants averting them back to Consumer Direct.
The Office of Fair Trading acts as the United Kingdom's official consumer and competition watchdog, with a remit to make markets work well for consumers, and at a local, municipal level by Trading Standards departments. The United Kingdom has bodies like Citizen Advice Consumer Service and Citizen's Advice Bureau that gives consumer advice. Plans have been proposed by one, Conservative MEP Daniel Dalton. The idea of Dalton to the European Parliament's Internal Market and Consumer Protection Committee is to introduce an application that would provide a single source of advice and dispute resolution (Dalton, 2018) that brings us to our bone of contention today, traditional legal frameworks for the protection of consumer rights cannot be transposed to contracting over the internet.
There is uncertainty as to the classification of digital content contracts as contracts for the provision of goods and services. In the United Kingdom, the challenges posed by applying the traditional legal principles to online contracting environment illustrates that our rights need to be better protected by updating the existing legislation. To prove this, I will determine a sui generis regime for digital content contracts by developing tailor-made rules there where there is a specific need for such regulations. The tendency of taking particular characteristics of digital content contracts into account while interpreting general information obligations draws us closer to the need for transposing consumer protection contracting over the internet.
The use of the internet and digital content has become a mandatory practice in people of all ages, experiences, and professions in our lives today. The demand for digital content has tremendously increased as the digital platform through the internet gives us access to literal everything, education, entertainment, businesses, relationships, communications, banking services, music, access to books name them! The world has gone digital. The mere fact of demanding and consuming internet services makes digital consumers the engine of the information economy. Growing consumer demand for all kinds of digital content galvanises the digital content sector to become one of the most effective, innovative and prospering economies within and outside the European Union and all over the world.
Active participation in digital platform demands for trust and confidence on both the producers and consumers, the digital consumers must have faith that the services of the internet are safe, they are always protected and that they trust the source of goods and services the internet offers. As the saying goes, the customer is always right, and one must do as per the needs of the customer, consumers will only use the internet if the commodities offered to meet their expectations and if they trust that their legitimate interests and rights are respected, also online. This has not been a problem except for the few shenanigans who cannot miss. A country has the mandate to make sure that there is an adequate legal framework to make sure that consumers get the service information they need. That they can expect a high level of quality and safety, that digital content is supplied under fair conditions, that the services they purchase comply with their expectations and that in case of conflict and breach they can enforce their rights nationally and across national borders. With the above needs, I do determine that consumer law has an important role to play in fostering the digital economy especially to let consumers know that they do have rights and freedoms while online and to make sure that these rights are adequate, achievable and practical.
The proposal for a directive on consumer rights was fueled by the legal protection of consumers of digital content. The digital industry is ready for contracting over the internet; it has highlighted the differences between digital content and tangible goods. Digital content products are not static, and their functioning depends more on their technical environment. The expectations and legitimate interests of consumers of goods and digital content may differ, but digital content will be able to expect a similar high level of protection. The Commission has to examine how consumers of digital content are protected thoroughly and to determine whether or not there is a need to adopt one or more specific legislative instruments or to introduce existing consumer rights to digital content.
For the contracting over the internet to be successful, digital consumer law, the differing and sometimes even contradictory conceptions of the consumer, the main concerns of consumers in digital content markets and the applicable legal framework must be taken into consideration. Digital consumer law must take these factors into account; reflect the challenges that arise for the application of existing consumer law and the concerns of digital consumers and update the existing legislation because consumer rights need to be protected. One of the most evident features of digital content markets is the move from prevailing tangible goods towards intangible products. Instead of printing and selling a physical book in a bookstore it is now also possible to publish the same book in electronic form and offer it for download. Games are played increasingly online; Music is being provided for sale in the form of MP3s online, ringtones purchased via the mobile phone. As was pointed out during the consultation on the Commission's Green Paper on the Review of the Consumer Acquis, intangible digital content goods and services may have many things in common with tangible products, yet they do not fit well into the traditional consumer law framework, where many rules are designed for a substantial economic. Such practices are the rules in consumer sales law, the provisions about the right of withdrawal, or specific remedies, such as the right to demand repair or return a product. Consumer sales law was termed as one of the significant deficits of the present legal occurrence, this made digital content be excluded from the application of consumer sales law.
Not all digital content is offered online, or via mobile networks thus much digital content offers to combine the characteristics of sales of goods and the provisions of services. For example, software sales may involve the purchase of a physical copy of the software, online update service, and a real-time software support service. To complicate matters, many content services offered digitally are framed as the so-called end user license agreements that suggest that consumers are not purchasing any goods or services at all, but are merely engaging in transactions that include the use of intellectual property. Digital content is increasingly offered by resellers. There is a wide variety of digital content service platforms for all types of content, including online content aggregators, mobile operators, physical retailers' web portals, traditional broadcasters' portals and Internet service providers. Often, these parties do not exclusively offer own content, but that of third parties content producers like application and game writers who need to be protected. The result is a diversification of the distribution chain, which also has implications for the protection of the interests of consumers, as well as the application of consumer law.
The classification of goods and services in traditional consumer law is closely related to the possibility that possession of goods and transfer of ownership is complete once a purchase is made. Many rules in consumer law are triggered by the physical exchange of property, and consumers, once they have made a purchase, usually expect that they also own it and can use it as they see fit. Most items of digital content, however, are also protected by a layer, or multiple layers of intellectual property rights: copyright, neighbouring rights, database rights, trademark law, et cetera. As a result, even if a consumer bought content, she may not own it because it is still subject to intellectual property rights, and it is up to right holders within certain boundaries to determine how the content can be used. Intellectual property rights can not only influence the classification of digital content as goods and services but also as the application of consumer law under which conditions are: the legitimate expectations of consumers, usage restrictions in end-user contracts fair and, consumers need to be informed about possible usage restrictions.
Consumer protection law usually presupposes offers of standardised goods or services to a homogenous consumer market. There is not yet a set standard for digital content of what the main characteristics of a film download, an e-book, a mobile phone application and a game are. Neither is there any collective agreement which level of functionality consumers are entitled to expect. Generally, with digital content, intangible digital content products such as e-books and MP3s, primarily it is the usage rules that determine what a consumer can do with a piece of music or a published book online. Some e-books can be copied, printed and forwarded to friends; others will only play on selected devices, cannot be copied or borrowed or published. How restrictive these usage rules can be is a matter of copyright law, but maybe even more so of contract law and ‘private rulemaking.' Such "de-standardisation" has normative ramifications since consumer law is traditionally based on protecting reasonable (standardised) consumer expectations.
About the public interest that digital content serves the legal framework for consumer contracts, concerning digital goods or services, it encompasses fundamental rights and freedoms, such as digital consumers' rights to respect for privacy and freedom of expression. While such fundamental rights have been initially developed to protect citizens against the State, a tendency is emerging in contract law adjudication in various European countries to consider disputes between private parties in the light of fundamental rights recognised in national Constitutions and international treaties. This development begins from the assumption that the regulations of private law should conform to the values of the constitutional order. It is from this perspective that lawmakers have to ensure that provisions of law, including those of private law, adhere with the rights laid down in the National Constitutions and International treaties. Courts then verify if contracts follow the fundamental values and, indirectly, examine the constitutionality of the relevant rules.
The directive leaves the European contract law with the obligation to respect the rights and freedoms that form part of the constitutional traditions as known to the Member States' and of ‘international treaties for the protection of human rights on which the Member States are part of and to which they are signatories. In this context, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is of particular importance. The Charter of Fundamental Rights of the European Union has got into a binding status with the coming into force of the Lisbon Treaty comes as good news for protection of human rights. The European courts should ensure that these rights and freedoms are complied with in specific cases.
As regards digital content contracts, legislation in the field of information law, as well as consumer law, should in principle take into account several fundamental rights of the parties involved: the author, the supplier, the consumer and copyright holder of digital information services. The consumer may refer to such rights as privacy, non-discrimination and, possibly, freedom to receive information. The author of a copyright protected work, on the other hand, may invoke unwritten personality rights. Finally, the supplier and copyright holder – who in some cases is the same as the author – may rely on the right to enjoy one's property to protect his investment in digital content goods or services. The European legislator has to balance these rights in the legal framework for digital content contracts. For instance, when defining rules on the validity of the agreement or its standard terms like in case they infringe privacy rights, consumer expectations and conformity like whether the consumer is allowed to make copies of the digital content and the protection of minors like the protection of children from harmful materials.
Traditional consumer law strongly lies on the juxtaposition of two parties, consumer and traders. Most EU consumer law Directives define the consumer as ‘a natural person who is acting for purposes which are outside his trade, business, and profession.' Consumer law sets basic rules for the bargaining game between "persons acting as the consumer in the marketplace and their counterparts, the businesses." One feature of digital technology is that it substantially lowers the threshold for any person to become a distributor and a producer of digital content services.
With the digitisation of content and the tools for its production, distribution of entertainment and information is shifted from the physical to the online domain. Mobile business has begun to conquer the consumer market, assisted by expanding transmission capacities of cellular networks as well as the escalating functionality of mobile phones that makes consumers access services at their comfort and privacy. Putting the consumer at the heart of the regulator's decision making maintains the focus on competition for delivering consumer benefit and helps to address areas where the market does not sufficiently provide. The majority of survey respondents have consumer protection policies in place, including playing some role in handling consumer complaints, or else a separate consumer protection agency has responsibility for telecom consumers. However many respondent countries are facing difficulties with enforcement and encouragement of consumer protection measures, with lack of resource and expertise common themes.
Very few respondents had updated their regulation and legislation to address issues around convergence, even though converged services are widely available. The majority of people still have separate controls for telecoms and broadcasting services. So what can be done to develop and maintain a consumer protection framework that is fit for purpose in the converging environment? The "Golden rules for convergence" although not a perfect remedy, provide a useful starting point. Given the pace of change compared with the time it takes to introduce and implement new legislation and regulations it is difficult (but necessary) to try and ‘future proof' management. The ideal approach is not to consider incremental changes that address the main threats (e.g., misuse of personal data) while maintaining the benefits (e.g., tailored content). What is needed is a regulatory framework that balances the interests of suppliers and users, in areas such as the protection of intellectual property rights, and digital rights management, without disadvantaging innovative e-business models. For example, E- and M-commerce offers excellent opportunities for opening up cross-border trade, providing access to goods and services for previously underserved communities. One of the critical challenges for regulators is to establish a culture of security that promotes trust in ICT applications, one in which there is adequate enforcement of privacy and consumer protection. Given that converged services are global, the need to strengthen cross-border cooperation is ever more significant.
For digital content, the information rules in the Distance Selling Directive, the Service Directive, and the E-Commerce Directive are particularly relevant. All states examined have implemented the transparency and information obligations that flow from these directives. Consequently, providers of digital content are obliged in all the member states reviewed to comply with the general information obligations that these directives prescribe. It is worth noting that the extent of the information duties does depend on the applicability of these rules to digital content. In some countries, there is the discussion to which degree the specific rules apply. For example, the Hungarian correspondent expressed doubts whether the rules on distance selling apply to digital content. The German correspondent questioned the applicability of the Service Directive to online services.
Interestingly, while the national reports were hesitant to acknowledge a duty to inform about usage restrictions under contract and consumer sales law, a majority did mention an indirect responsibility to educate consumers about the existence of technical copy restrictions under unfair commercial practice law. In the United Kingdom, failure to inform about technical usage restrictions could be considered an unfair business practice. Although the use of TPMs is generally and rightly so not considered an unfair commercial practice in itself, the failure to inform consumers about the presence of eventual usage restrictions (making copies, region coding could be regarded as a misleading omission. A precondition is that presence or absence of such limits can be deemed relevant about the consumer's decision whether or not to enter into a contract.
Arguably, information about the licensing conditions is already covered by the obligation in general consumer law to specify regarding contract the rights and responsibilities of both contracting parties and make the terms available to consumers before the conclusion of the deal. Regarding professional standards and codes of conduct, the Service Directive, and the national rules that implement it, require traders to inform consumers upon their request about any codes of conduct to which the provider is subject and the address at which these codes may be consulted by electronic means, specifying the language version available; as well as how to access detailed information on the characteristics of, and conditions for, the use of non-judicial mechanisms of dispute settlement (Art. 22 (1)e and (3) d and e of the Service Directive). Once a trader has indicated that he is committed to a particular code of conduct and fails to comply, this can be considered a misleading commercial in the sense of Article 62(b) of the Unfair Commercial Practice Directive. What is missing until now is a provision mandating the general transparency and availability of codes of conducts and other pieces of co- and self-regulation.