Author丨Zheng Xue
Editor丨Cai Shuyue
Figure source丨Figure worm
In 2013, the Law of the People's Republic of China on the Protection of Consumer Rights and Interests (hereinafter referred to as the "Consumer Rights and Interests Protection Law") ushered in its first revision, and how to implement the revised relevant laws and regulations and how to make them more operational. The implementation regulations of the Consumer Rights Protection Act may be the key to detailed operations.
Eight years later, the Regulations for the Implementation of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests (hereinafter referred to as the "Regulations") were finally promulgated after the public consultation on the Regulations for the Implementation of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests (Draft for Comments) (hereinafter referred to as the "Draft for Comments") and in November 2016 for the promulgation of the Regulations for the Implementation of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests (hereinafter referred to as the "Draft for Review").
A few days ago, Premier Li Qiang of the State Council signed Order No. 778 of the State Council, promulgating the full text of the "Regulations", with a total of 7 chapters and 53 articles, which will come into force on July 1, 2024.
At present, the consumer environment has undergone tremendous changes, and compared with the draft for comments and the draft for review, the "Regulations" focus on the outstanding problems in the field of consumer rights protection to respond, such as "price discrimination", "big data killing", excessive collection of consumers' personal information and other hot issues under the protection of consumer rights and interests have more detailed provisions.
The sword refers to "big data killing", and the automatic renewal needs to be prominently prompted
With the rapid economic and social development, the protection of consumer rights and interests is also constantly facing new challenges.
Specifically, in the traditional consumption field, problems such as false publicity, unfair format terms, and prepaid consumption infringement are prominent. In the field of platform economy, there are many cases of infringement of consumer rights and interests by business operators, such as the abuse of technical means, platform rules, and dominant positions, and the problems of "price discrimination", "big data killing", false marketing, "passing off fake as real" and "shoddy goods" in online live streaming, and excessive collection of consumers' personal information have aroused widespread concern.
When answering reporters' questions, the responsible persons of the Ministry of Justice and the State Administration for Market Regulation said that it is necessary to focus on outstanding problems, formulate regulations for the implementation of the Consumer Rights and Interests Protection Law in accordance with the Consumer Rights and Interests Protection Law, further improve the legal system for the protection of consumer rights and interests, and increase the protection of consumers' legitimate rights and interests.
In terms of online consumption, taking price discrimination and big data killing as examples, 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. Article 11 of the Regulations mentions that business operators shall not use technical means to compel or covertly compel consumers to purchase goods or accept services.
From a comprehensive point of view, in response to the ripening of big data, a number of regulatory agencies have successively introduced relevant measures to regulate it. For example, in February 2021, the Anti-Monopoly Commission of the State Council issued the Anti-Monopoly Guidelines in the Field of Platform Economy, which clearly states in Article 17 that "big data killing" may constitute an abuse of market dominance and differential treatment. For example, in January 2022, the four departments jointly issued the "Provisions on the Administration of Algorithmic Recommendations for Internet Information Services", prohibiting "big data killing" and requiring that algorithms must not be used to implement unreasonable differential treatment in transaction prices and other transaction conditions based on consumers' preferences, transaction habits and other characteristics.
With regard to issues such as automatic extension and automatic renewal of App membership, Article 10 of the "Regulations" states that where business operators provide services by means such as automatic extension or automatic renewal, they shall draw consumers' attention in a conspicuous manner before consumers accept the services and before the date of automatic extension or automatic renewal.
Strengthen the obligations of prepaid consumer operators
Prepaid consumption is also the focus of the Ordinance. Prepaid consumption refers to a consumption mode in which consumers pay a certain amount of money to business operators in advance, and business operators provide goods or services to consumers in batches in accordance with the contract for a certain period of time in the future.
Previously, the China Consumers Association released the "2023 Report on the Protection of Consumer Rights and Interests in the Field of Prepaid Consumption", stating that the protection of consumer rights and interests in this field mainly faces six major problems, such as the illegal application of cards by operators, the refusal of operators to issue consumption vouchers, the poor fulfillment of service promises and disguised price increases, the difficulty of consumers to apply for cards and refunds, the difficulty of operators to recover losses for consumers who run away, and the difficulty of consumer rights protection.
The "Regulations" focus on strengthening the obligations of operators in prepaid consumption activities. According to Article 22 of the Regulations, specifically:
First, where business operators provide goods or services by receiving advance payment methods, they shall conclude 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, and the liability for breach of contract.
Second, business operators shall provide goods or services in accordance with the agreement with consumers, and shall not reduce the quality of goods or services, and shall not arbitrarily increase prices.
Third, if the proprietor fails to provide goods or services in accordance with the agreement, it shall perform the agreement or refund the advance payment in accordance with the consumer's requirements.
Fourth, if a business operator decides to suspend business or relocate a service venue, it shall inform consumers in advance and continue to perform its obligations or refund the balance of the advance payment that has not been consumed.
It is worth noting that the Regulations supplement the relevant obligations of operators on the consumer protection of the elderly and minors. It is clarified that proprietors must not use false or misleading publicity to fabricate or exaggerate the efficacy of goods or services such as treatment, health care, and health preservation, to induce consumers such as the elderly to purchase goods or services that clearly do not meet their actual needs. It is clarified that the provision of online gaming services by business operators shall comply with relevant state provisions and standards, and protect the physical and psychological health of minors.
Do not send commercial messages or make commercial phone calls without consent
In real life, the protection of consumers' personal information faces the challenges of difficult prevention, difficult proof, and difficult to claim.
In the field of consumer rights protection, the New Consumer Law has made corresponding provisions on the protection of personal information. As pointed out in Article 29 of the New Consumer Law, business operators shall follow the principles of legality, legitimacy and necessity in collecting and using consumers' personal information, and at the same time shall clearly indicate the purpose, method and scope of collection and use of information, and obtain the consent of consumers. The rules for collection and use shall be made public. The personal information collected must be kept strictly confidential, and must not be disclosed, nor can it be sold or illegally provided to others. Commercial information, etc., shall not be sent without consent or express refusal from the consumer.
The Regulations also make detailed provisions in accordance with the relevant obligations stipulated in the Law on the Protection of Consumer Rights and Interests, mainly focusing on Articles 23 and 24.
The Regulations point out that when providing goods or services, business operators shall not excessively collect consumers' personal information, and shall not use methods such as one-time general authorization or tacit authorization to compel or covertly compel consumers to consent to the collection and use of personal information that is not directly related to business activities.
In addition, many consumers often receive marketing calls from merchants, and some are even "bombarded" by marketing calls, and the Ordinance also regulates the problem of harassment in marketing calls.
Article 24 of the Regulations states that without the consent of consumers, business operators shall not send commercial information or make commercial telephone calls to consumers. Where consumers agree to receive commercial information or commercial phone calls, proprietors shall provide clear and convenient ways to cancel. Where consumers choose to cancel, proprietors shall immediately stop sending commercial information or making commercial phone calls.
SFC
Editor: Li Yutong, intern: Zhao Fengling
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