DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

CONSUMER PROTECTION LAW

CONSUMER PROTECTION IN E-COMMERCE

SUBMITTED BY - SUBMITTED TO -
Satendra Kumar Maurya Dr. Amandeep Singh
Roll No. 190101129 Assistance Professor
B.A.LL. B (Hons.) of Law
5th year, 9th semester
 ACKNOWLEDGEMENT
I, satendra kumar maurya want to express my appreciation to my educator Dr.
Amandeep singh who gave me the brilliant chance to finalize this glorious
research subject " consumer protection in e-commerce transactions in india –
need for reforms”. All through the exploration period, I have been guided by my
educator at whatever point I confronted any obstacles or was in a state of daze not
having the capacity to resolve the intricacies of the subject.
I would also like to thank my University, Dr. Ram Manohar Lohiya National Law
University, Lucknow, for giving me the opportunity to be a part of a novel
exploration turned educational program which without a doubt helps the
comprehension of the subject.

I likewise want to thank my guardians, guides and well-wishers who have been a
consistent underpin and have sufficient energy and again looked into my work
and have given their experiences in the matter.

THANK YOU

CONTENT
1. Introduction
2. E – commerce transaction under
consumer protection Act, 2019
3. Ambit of the act
4. Jurisdiction
5. The draft consumer protection (e -
commerce) rules, 2019
6. The payment under e commerce
transaction
7. Concern under the 2019 act
8. Digital content &digital services
9. Need for further regulation
10.conclusion

ABSTRACT
India is one of the largest e-Commerce markets, which is expanding with an unprecedented
pace. With the increase in the volume and consumer base for the e-Commerce markets there
should be a corresponding development of a legal framework which should able to efficiently
regulate its functioning and offer remedial measures for the grievances of the consumers.
This paper examines as to whether the Consumer Protection Act, 2019 is duly addressing the
needs of the consumers of the e-Commerce transactions and makes a brief comparison with
the existing legal framework in European Union for protection of the consumers of e-
Commerce. This paper also tends to address the gaps in the present framework under the
2019 Act and suggests the additional regulatory measures that may be adopted.

I. INTRODUCTION

The Consumer Protection Act, 1986 was a product of the pre globalisation era. Post
liberalization the Indian Market has grown with an unprecedented pace currently touching the
$2.8 Trillion mark and is aspiring to cross the $ 5 Trillion mark by 2024 1. The aspirations of
the consumers and the choices available to them have also changed accordingly. India is one
of the fastest growing e-Commerce market with an expected market size of $ 84 billion by
20212. The emergence of global supply chains, rise in international trade and the rapid
development of e-Commerce have led to new delivery systems for goods and services and
have provided new opportunities for consumers. We are presently living in a world where
there is an ever-growing dependency on the online market places. The entire Indian consumer
diaspora irrespective of their economic status or age factor is participating in this online
market system either while watching YouTube or making a purchase from Flipkart, Amazon
or Grofers or while signing into the Netflix or Amazon Prime or while booking cabs through
Ola or Uber or gaining knowledge through the educational apps like Byju‟s or Unacademy

1
Mihir Sharma, “Can India become a $5 trillion economy?” (Economic Times, 20th June, 2019)
<https://economictimes.indiatimes.com/news/economy/indicators/can-india-become-a-5-trillion-
economy/articleshow/69869145.cms> accessed 28th March, 2020.
2
Deloitte, “Unravelling the Indian Consumer”, (2019)
<https://www2.deloitte.com/content/dam/Deloitte/in/Documents/consumer-business/in-consumer-RLS-2019-
noexp.pdf > accessed 28th March, 2020
while ordering food through Swiggy or Zomato or making payments through Paytm or
Google Pay.

With the high penetration of media and internet, misleading advertisements, tele-marketing,
multi-level marketing, direct selling and e-retailing are posing new challenges to consumer
protection. This has rendered the consumers vulnerable to new forms of unfair trade and
unethical business practices. Unlike a physical market where a consumer gets the choice to
make an informed decision by actually examining the goods and an option to bargain or
negotiate, in this digital world she is solely dependent on the representation made by the
online vendor. There is no option available for a consumer in an online market to examine
whether the product offered is a genuine one or a counterfeit. Unlike a physical market place
where the consumer is having the right of free entry and exit, these online market platforms
place the consumers in a maze of terms and conditions once she logs into the vendors portal.
Majority of the consumers of e-Commerce services are oblivious to these terms as they
simply click on the „I Agree‟ button and some of the online market places doesn‟t even
bother to seek the consent of the consumer. Quite often these contracts in the form of “Terms
of Use” run into several pages and the underlying clauses therein will be depriving most of
the rights that may otherwise be available for the consumers 3. These lengthy and complex
terms of use are often hidden as hyperlinks and are placed in such corners of these web pages
where no one will be able to locate them unless particularly looking for it. An ordinary
consumer may not be able to read and understand the legal intricacies and the loop holes that
may be weaved into the clauses of these standard form click wrap contacts. Even if a person
is able to understand and identify the clauses that are against her interest she may not have
any option to negotiate with the online vendor and modify the same.

There has been no dearth of cases filed against various online market aggregators and service
providers before various consumer forums. Majority of such cases were premised on the
grounds of defect in goods, deficiency of services and unfair trade practice 4 and have

3
It will be interesting to note that the terms of use of one of the e wallets which almost became the symbol of the
Digital India campaign is actually having a clause limiting the aggregate liability of the Service Provider for any
loss or damage suffered by the consumer by use of its services, upto a maximum of Rs. 5000/- even if such a
loss is resulting from its negligence. See “Paytm Terms and Conditions” < https://paytm.com/about-us/our-
policies/#tandc> accessed 31st March, 2020.
4
See Rediff.com v. Urmil Munjal, RP No. 4656/2012, NCDRC; Anita Makkar v. Ebay India Pvt.Ltd. and
Others, CC/13/130, District Consumer Disputes Redressal Forum, Patiala ; E-Biz Com Pvt. Ltd. v. Vishwanatha
Patil, FA No A/10/159, SCDRC Maharashtra; Arjun Chhabra v. Alpha Radio Naptol Online shopping Pvt. Ltd.
And Another, CC No. 868/12, District Consumer Disputes Redressal Forum (East) Govt of N.C.T. of Delhi;
predominantly germinated from lack of clarity as to the return 5/refund policy6, misleading or
wrong information about the product or service offered 7 , defective product 8 , exorbitant
pricing9 or breach of the agreed terms of service10. The online market aggregators have
always taken the plea that the deficiencies alleged by the consumers were attributable solely
to the vendors who had utilised the platform offered by the online aggregators to sell their
products and hence they should not be penalised. It has been all along argued that their role
was limited only to facilitate various sellers and buyers through its online portal and they
have no role to play in offering or providing after sale services to the consumers. 11 However
the Courts have held that even though the online shopping portals may not charge any price
from the consumer for mediating between the seller and the buyer, it is implied that the
online store which provides service to the seller to invite buyers to purchase the goods is a
service as contemplated under the provisions of Consumer Protection Act 12. It is also a settled
position of law that if an online market portal is selling products without disclosing the
identity of the vendors then the portal itself shall be considered as the vendor 13. The law
governing the e-Commerce transactions have been hence largely built around such judicial
precedents as the existing legislative framework was silent on these aspects. Even though
these decisions served as a stopgap arrangement it could not be considered as a substitute for
a concrete legislation as the questions of law can always be answered differently unless
regulated by the words of legislature.

II. E-COMMERCE TRANSACTIONS UNDER THE CONSUMER PROTECTION

Manik Sethi vs Amazon India, FA No 595/2016SCDRC Haryana; Supriyo Ranjan Mahapatra v. Amazon
Development Centre India (P) Ltd., CC No. 42/2015, District Consumer Disputes Redressal Forum, Ganjam
Behrampur.
5
Indiatimes shopping and Others v. Shivanand Narain and Others, Appeal case No.219/2009, SCDRC UT,
Chandigarh
6
See Anurag v Byju‟s The Learning App, CC No 146/2019 District Consumer Disputes Redressal Forum-II
Chandigarh; See also Naaptol Online Shopping Pvt.Ltd v. Nagesh Shrikant Date, RP No 09/2012, SCDRC
Mumbai, Circuit Bench at Aurangabad
7
Yatra Online Pvt. Ltd. and Others v. Ajit Singh Ubhi and Another, Appeal No.25/2010, SCDRC, Chandigarh
8
Raman Roy v. Rediff.com, CC No.09/13, Consumer Disputes Redressal Forum-VI- Delhi.
9
See Ridhima Ohri v. Yepme.com, FA No. 123 of 2014, SCDRC, Chandigarh.
10
See Joginder Singh Saini v Byju‟s Think & Learn Pvt Ltd, CC No 2017/2019 District Consumer Disputes
Redressal Forum, Hisar Haryana; Richa Garg v. e.Biz.com Pvt. Limited, F A No 191/2008, SCDRC
Chandigarh.
11
See Dr. Jay Prakash Gupta vs Flipkart Internet Pvt. Ltd, FA No. A/147/2018, SCDRC Kolkata.
12
See supra Note 4.
13
See supra note 6.
It was high time that the law for consumer protection also changed to meet the requirements
of the present economic situations and the market. The Council on Consumer Protection in E-
Commerce appointed by Organisation for Economic Co-operation and Development (OECD)
has in their Recommendations laid down the general principles related to some of the issues
which are unique to the e-Commerce transactions like (i) Transparency in disclosure of
information (ii) Data Security; (iii) Payment Security (iv) Responsible Endorsement and (v)
Redress. One of the primary objectives of these Recommendations is to ensure that the
consumers who participate in the e-Commerce transactions are offered the same level of
protection that is available in any other form of Commerce. The framework envisaged under
these recommendations is centred on bringing in more transparency in the e-Commerce
transactions which is evident from the elaborate disclosure norms discussed therein. The e-
Commerce businesses should provide all reasonable and accurate information about the
products/services offered by or through them so as to enable their consumers to make a well
informed decision. The guidelines also require the underlying contracts also to be fair and
giving the much needed flexibility for decision making to the customers to ensure a fair
market. According to the OECD Council the e-Commerce businesses should also be
responsible to monitor the actions of the other persons who are using their platform to market
their products to ensure that they are also not resorting to any unfair practices. 14

The Consumer protection Act, 2019 (hereinafter referred to as “2019 Act”) has endeavoured
to cover the gaps in the existing framework under the 1986 Act in order to facilitate the
requirements of the growing online consumer market in India and has incorporated many of
the general principles put forth by OECD Council in their recommendations.

i. Ambit of the Act:

Unlike the 1986 Act this new Act has expressly included the consumers of e-Commerce
under its scope. All the online transactions of buying or selling of goods or services including
digital products over digital or electronic network has been brought under the ambit of „e-
Commerce‟15. As per the provisions of the 2019 Act, a person who purchases any goods or

14
“Consumer Protection in E-Commerce: OECD Recommendation”, (2016), OECD Publishing, Paris,
<http://dx.doi.org/10.1787/9789264255258-en> accessed 28th March, 2020.
15
See Section 2(16) of the 2019 Act.
avail any services through any of the online platforms will be treated as a consumer for the
purpose of the Act and will be able to claim protection and seek remedies under the Act16.

All such entities which allows a seller to engage to advertise, market or sell their goods or
services to a consumer through their platform have been brought under the definition of
„electronic service provider‟17. The online market places and the online auction sites have
been expressly brought under the ambit of this definition. Such electronic service providers
will have the same duties, responsibilities and liabilities as that of a Product Seller under the
18
2019 Act. Further the manufacturers who sell their products directly and exclusively
through their own websites or through the online market platforms have also been brought
within the definition of a product seller.

With a view to ensure the protection of the personal information and data shared by the
consumers with the electronic service providers, the disclosure of any such personal
information to any other person except in accordance with the provisions of any law for the
time being in force has been brought under the definition of unfair trade practice under the
new Act19.

ii. Jurisdiction

Place of Jurisdiction has always been a ticklish issue in disputes on e-Commerce transactions.
Even though the Indian Courts were never hesitant in proceeding against the online market
vendors or the web aggregators under the 1986 Act there have also been some instances
where the Courts have dismissed petitions against the e-Commerce vendors citing lack of
jurisdiction and such other reasons owing to the lack of express provisions under the
Consumer Protection Act20. Under the existing Act the consumers were required to file the
complaints either at the place of purchase or where the seller has its registered office address.
The 2019 Act has brought in the well needed flexibility by permitting the consumers to file
complaints with the jurisdictional consumer forum located at the place of residence or work
of the consumer21.

16
See Explanation (b) to Section 2(7) of the 2019 Act.
17
See Section 2(17).
18
See Section 2(37) of the Act. The definition makes a statement that the term product seller shall not include a
person who is not an electronic service provider. By use of these double negatives the electronic service
providers have been squarely brought under the scope of the definition.
19
See Section 2(46)(ix) of the Act.
20
See Rajinder Singh Chawla v. makemytrip.com (India) Pvt Ltd, FA No 355/2013, SCDRC, Chandigarh.
21
See Sections 34 (2) (d) and 47 (4) (d) of the Act.
Further there have been many instances where the electronic service provider has taken the
plea that it was not served due notice, despite the fact that a Notice was issued at the address
provided in its website. The new Act settles this issue by stipulating that a notice shall be
considered as valid if the same is served on an electronic service provider at the address
provided by it on the electronic platform from where it provides its services as such. The Act
also requires the electronic service provider to designate a nodal officer to accept and process
such notices.22
iii. The Draft Consumer Protection (e-Commerce) Rules, 201923

The Draft Rules sheds further light into the scope of the applicability of the Act as to the e-
Commerce transactions. The Rules have categorised the E-Commerce under two Models:

a) Inventory Based Model and

b) Market Place Model.

The Inventory based model includes the e-Commerce activities where inventory of goods and
services is owned by e-Commerce entity and is sold to the consumers directly. The Market
Place Model includes providing of an information technology platform by an e-Commerce
entity on a digital & electronic network to act as a facilitator between buyer and seller or
rather as an intermediary24. The Rules shall be applicable uniformly to all the e-Commerce
entities irrespective as to whether they are engaged in the e-Commerce business under
inventory or market place model.

The Draft Rules has endeavoured to implement the OECD Recommendations in its true letter
25
and spirit. As per these Rules every e-Commerce entity who carry out e-Commerce
business in India is required to display the details about the sellers supplying the goods and
services in their websites. The details of the sellers including identity of their business, legal
name, principal geographic address, name of website, e-mail address, contact details,
including clarification of their business identity, the products they sell, and how they can be
contacted by consumers should be published in the website of the e-Commerce entity.

22
See Section 65 (2) of the Act.
23
These Rules are yet to be notified at the time of writing this paper.
24
See Section 2(1) (w) of the Information Technology Act, 2000.
25
See Rule 2 (c) of the Draft Consumer Protection (e-Commerce) Rules 2019
<https://consumeraffairs.nic.in/draft-rule /draft-rule> accessed 29th March, 2020.
The present draft Rules have laid down a set of duties and responsibilities for the e-
Commerce entities. A perusal of these provisions reveals that these guidelines have been put
in place to enable the customers to make an informed decision while making a purchase
through the online market places. The onus has been put on the e-Commerce entities to
ensure that the sellers are not making any misrepresentations or misleading comments or any
other unfair or deceptive practices in relation to the features of the goods and services offered
through their platforms. They are also required to monitor the product reviews to ensure that
the sellers themselves are not posting any reviews posing as the customers. A concerted effort
has also been taken to protect the data and privacy of the consumers of the e-Commerce
entities. 26

The sellers or service providers who use any of these e-Commerce platforms to sell or
advertise their product or services are also covered under the said Rules. To ensure
transparency of the e-Commerce transactions the Rules itself stipulate that the break up price
for the goods and services offered under the online platforms should be provided by the
sellers, including the charges for delivery, conveyance, taxes etc. The sellers are required to
disclose to the consumers their Policies related to shipping of goods, exchange, returns and
refund processes to ensure their accountability towards their consumers. They are also
required to frame and disclose in these websites the mechanism for redressal of the
grievances of the consumers. The Rules have made the sellers responsible for any
warranty/guarantee obligations with respect to the goods and services sold.27

iv. Payments under the e-Commerce Transactions

The draft e-Commerce Rules stipulates that the payments for sale should be facilitated by the
e-Commerce entity in conformity with the guidelines of the Reserve Bank of India (RBI).
Detailed guidelines have been issued by RBI for the regulation of the payments under
electronic transactions involving the e-Commerce entities acting as intermediaries28. This

26
See Rule 4 of the Draft Consumer Protection (e-Commerce) Rules 2019 <https://consumeraffairs.nic.in/draft-
rule /draft-rule> accessed 29th March, 2020.
27
See Rule 5 of the Draft Consumer Protection (e-Commerce) Rules 2019 <https://consumeraffairs.nic.in/draft-
rule /draft-rule> accessed 29th March, 2020.
28
RBI Guidelines on Regulation of Payment Aggregators and Payment Gateways, (RBI/DPSS/2019-20/174
DPSS.CO.PD.No.1810/02.14.008/2019-20 March 17, 2020),
<https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11822&Mode=0 > accessed 30th March, 2020.
guideline intends to regulate the functioning of the Payment Aggregators 29 and Payment
Gateways who facilitate the electronic payment transactions involving the e-Commerce
entities acting as intermediaries. As per these guidelines the Agreements between Payment
Aggregators, merchants, and all the other stake holders should clearly delineate the roles and
responsibilities of the involved parties in handling the complaints, refund / failed
transactions, return policy, customer grievance redressal (including turnaround time for
resolving queries), dispute resolution mechanism, reconciliation, etc. They are also required
to disclose comprehensive information regarding merchant policies, customer grievances,
privacy policy and other terms and conditions on the website and their mobile application.
The Payment aggregators are also required to have policy for disposal of complaints / dispute
resolution mechanism / time-lines for processing refunds, etc., in tune with the RBI
instructions on Turn Around Time (TAT) for resolution of failed transactions30.

These guidelines also stipulate for certain preconditions for the on boarding of merchants by
these payment aggregators. These payment aggregators are required to undertake background
and antecedent check of the merchants, to ensure that such merchants do not have any mala
fide intention of duping customers, do not sell fake / counterfeit / prohibited products, etc.
The merchant‟s website should also clearly indicate the terms and conditions of the service
and time-line for processing returns and refunds. These guidelines expressly bar the
merchants from saving the customer card or related data and the Agreement entered between
the aggregator and the merchant shall also have provision for security / privacy of customer
data.

III. CONCERNS UNDER THE 2019 ACT

i. Unfair Contracts:

The 2019 Act has brought the Unfair Contracts also under its ambit thereby providing the
consumers a relief against the standard form contracts which they were force to execute
without any option to negotiate. Under the provisions of the new Act a consumer may now

29
The Payment Aggregators includes such entities which facilitate e-Commerce sites and merchants to accept
various payment instruments from the customers for completion of their payment obligations without the need
for merchants to create a separate payment integration system of their own. As per the RBI guidelines these
Payment Aggregators will be now required to seek authorization from RBI for continuing their services. Ibid.
30
See RBI Circular on Harmonisation of Turn Around Time (TAT) and customer compensation for failed
transactions using authorised Payment Systems (RBI/2019-20/67 DPSS.CO.PD No.629/02.01.014/2019-20
September 20, 2019) < https://m.rbi.org.in/Scripts/BS_CircularIndexDisplay.aspx?Id=11693> accessed 30th
March, 2020
challenge such a contract before the State Commission or the National Commission and seek
31
appropriate remedies. However the present definition is covering only the „contracts
between a manufacturer or trader or service provider and a consumer‟ and is not covering the
“electronic service providers”. It is pertinent to note here that the term “service” under the
Act excludes rendering of any service free of charge and that this plea has been taken as a
defence on several occasions by the electronic service providers during litigations. A
consumer while accessing, browsing or otherwise using the websites of these electronic
service providers is automatically made subject to the terms and conditions of use unilaterally
stipulated by such electronic service providers. These terms and conditions frequently contain
such clauses which are quite disadvantageous to the consumers and absolve the electronic
service provider from all their responsibilities. The electronic service providers tend to
bypass their liabilities by describing the transactions taking place in their platforms as
bipartite contracts between the Seller and the Buyer restricting themselves as mere „platforms
for communication‟. Some of these contracts proceeds with the presumption that the
consumers are deemed to have been given their consents, by their mere act of visiting or
browsing these websites, permitting these electronic service providers to use, store or
disclose to third parties the personal information provided by them or collected by the
electronic service providers themselves. The definition of information that may be collected,
used or disclosed in this manner may even include the browsing history of the consumer,
SMS details, contact directory etc32.

A plain reading of these clauses itself reveals as to how blatantly these terms are violating the
right to privacy and data protection of the consumers. Unless the definition of the term
“unfair contracts” is suitably modified so as to expressly cover the electronic service
providers also, they may continue exploit this ambiguity to escape their responsibilities. The

31
See Section 2(6), Section 47 and Section 58 of the Act
32
See Flipkart “Terms of Use”,
< https://www.flipkart.com/pages/terms?otracker=undefined_footer_navlinks> accessed 30th March, 2020;
See also Flipkart “Privacy Policy”,
<https://www.flipkart.com/pages/privacypolicy?otracker=undefined_footer_navlinks> accessed 30th March,
2020
See also Amazon.in “Conditions of Use”
<https://www.amazon.in/gp/help/consumer/display.html?ie=UTF8&nodeId=200545940&ref_=footer_cou>
accessed 29th March, 2020
relevance for such a provision is also evident from the fact that the OECD Council
Recommendation on e-Commerce also expressly articulating for the same.33

ii. Digital Contents & Digital Services

The transactions related to the digital contents and digital services transferred either under a
tangible medium or by way of online streaming pose certain unique challenges, which have
not been duly covered under the 2019 Act. India is one of the largest markets of the digital
contents and services and is having a considerably large number of consumers who depend
on the online platforms for entertainment and education. The sale of digital contents or
services may comprise of a single act of supply as in the case of online purchase of a movie
or an e-book or it may be in a continuous manner over a period of time as in case of a
subscription of an e-learning application or a web streaming service. Based on the nature of
the contract the digital content or digital services may be supplied to a consumer by way of
transmission on a tangible medium, downloading by consumers on their devices or on a
Cloud platform, web-streaming, allowing access to storage capabilities of digital content or
access to the use of social media and so on. In such transactions there is a need to ensure the
conformity of the contents supplied, rights of access and storage and periodicity of access
with the terms of the offer at the time of making the purchase. 34 In cases like Joginder Singh
Saini v Byju’s Think & Learn Pvt Ltd, Richa Garg v. e.Biz.com Pvt. Limited, Anurag v
Byju’s The Learning App35 etc the deficiencies alleged were related to the lack of conformity
between the offered product and the actual digital contents supplied. The common grievances
of the consumers in relation to the digital content or services are that they receive wrong or
faulty digital content or digital services, or they are not able to access the digital content or
digital service in question36. There should be a defined framework stipulating the rules on the
conformity of digital content or service with the contract/representation and the remedies
available to the consumers in the event of a lack of such conformity or a failure to supply.

33
See supra Note 14
34
Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects
concerning contracts for the supply of digital content and digital services. < https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A32019L0770> accessed 29th March,.2020
35
See supra Notes 6 & 10
36
See also supra Note 33.
Recently the European Union has amended their Directives on Consumer Rights bringing the
supply of digital contents37 and digital services38 under its ambit.39 Under their Directive
(EU) 2019/77040 European Union has also laid down certain guidelines with respect to how
the consumer grievances arising out of the digital contents and digital services may be
addressed. This Directive lays down common rules governing the conformity of digital
content or a digital service with the contract, remedies in the event of a lack of such
conformity or a failure to supply and the modalities for the exercise of those remedies, as
well as on the modification of digital content or a digital service under the contracts between
traders and consumers for the supply of digital content or a digital service. It applies to any
contract where the trader supplies or undertakes to supply digital content or a digital service
to the consumer and the consumer pays or undertakes to pay a price. The Directive has also
laid down specific parameters to assess the conformity of the digital contents or services with
the contract. 41 As per the Directive in the case of a lack of conformity, the consumer shall be
entitled to have the digital content or digital service brought into conformity, to receive a
proportionate reduction in the price, or to terminate the contract.

It is always advisable to create such a self regulatory mechanism than asking the consumers
to approach the courts and seek remedy. Suitable legal framework should be put in place to
ensure that the contracts governing the transactions including digital content and digital
services are having provisions to ensure the transparency and mechanism for redressal of the
grievances of the consumers. To ensure the conformity of the contents these service providers
may be required to provide a preview of the contents offered or even a trial period of use to
the persons who wish to purchase the digital contents or subscribe to such digital services.

IV. NEED FOR FURTHER REGULATION

37
See Article 2 (6) of the EU Directive 2019/771 on certain aspects concerning contracts for the sale of goods,
amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC,
< http://data.europa.eu/eli/dir/2019/771/oj> accessed 29th March, 2020.
38
See Article 2 (7) of the EU Directive 2019/771 on certain aspects concerning contracts for the sale of goods,
amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC,
<http://data.europa.eu/eli/dir/2019/771/oj> accessed 29th March, 2020.
39
See Directive (EU) 2019/2161 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC
and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and
modernisation of Union consumer protection rules. < https://eur-lex.europa.eu/eli/dir/2019/2161/oj> accessed
29th March, 2020.
40
See supra Note 33.
41
See supra Note 33, Articles 7 & 8
Though the 2019 Act has brought in several commendable changes in the existing framework
so as to protect the interests of the consumers of e-Commerce transactions, it has not brought
in any change to the traditional redressal system except for the introduction of the Alternate
Dispute Resolution channel. There is a need for a self-regulatory mechanism and to put in
place a system to effectively monitor the implementation of the consumer laws in the e-
Commerce transactions. The present system waits for a violation of the law and the consumer
to approach the judicial system for redressal. In the field of e-Commerce transactions the
legal system needs to be more proactive. This is further more relevant in the light of the fact
that these e-Commerce businesses have their own set of Policies and contractual framework
that can be easily monitored and regulated. A person who is making a purchase through an e-
Commerce platform will not be always thinking of her underlying rights and the
consequences at the time of transactions. The e-Commerce businesses that are well aware of
this Consumer psychology may continue with their grossly unilateral contracts/terms of use
governing the transactions through their platforms and will be bypassing the framework
created under the statute.
The EU Commission and the respective national Authorities for enforcement of the laws for
protection of consumer‟s interest in the participating countries are empowered to carryout
investigations or proceedings on their own initiative to bring about the cessation or
prohibition of infringements by way of periodical „Sweeps‟ 42 of the e-Commerce websites.
These Sweeps are intended to identify breaches of EU consumer law in a particular sector.
During the screening of the various e-Commerce sites in February, 2019 it was revealed that
more than 31% of the websites offering discounts the special offers were not authentic. It was
found that more than half of the websites showed irregularities in particular on how the prices
and discounts were advertised43. Wherever such breaches are identified the respective e-
Commerce businesses are directed to take corrective actions and if the corrective actions are
not carried out by the identified business these enforcement agencies have been empowered
to remove such contents or restrict access to the online interface and display a warning to the
consumers while they access to such online platforms.

42
Sweeps have been defined as concerted investigations of consumer markets through simultaneous coordinated
control actions to check compliance with, or to detect infringements of, Union laws that protect consumers‟
interests. See Article 16 (3) of the Regulation (EU) 2017/2394 on cooperation between national authorities
responsible for the enforcement of consumer protection laws, <https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32017R2394&from=EN > accessed 5th April, .2020.
43
See “Online shopping: Commission and consumer protection authorities call for clear information on prices
and discounts”, (EU Press Release, 22nd February, 2019) < https://ec.europa.eu/cyprus/news/20190222_1_en>
accessed 5th April, .2020
 CONCLUSION

Under the 2019 Act the Central Consumer Protection Authority (CCPA) is empowered to suo
moto investigate into the violations of consumer rights or unfair trade practices. They have
also been empowered to review the factors inhibiting enjoyment of, consumer rights and
recommend appropriate remedial measures for their effective implementation. Based on
these empowering provisions appropriate Regulations may be framed to empower the CCPA
for monitoring the compliance of the consumer laws by the e-Commerce businesses. It may
also be explored as to possibilities for conducting of a periodical audit of these websites by
CCPA or such authorities delegated to do so by the CCPA in lines of the present EU
framework. SEBI Complaints Redress System (SCORES) platform 44 is a model that can also
be adopted by CCPA to address the complaints of any violations of the consumer rights by
the e-Commerce businesses by way of misleading advertisement, endorsements or unfair
contracts. The need for such a regulatory mechanism is much relevant in the light of the
increasing e-Commerce market size. The fact that the monetary value of the individual e-
Commerce transactions are comparatively lower and the consumers may not find it
compelling to approach the courts for a remedy considering the underlying cost for the
litigations also calls for such proactiveness.

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