The corona virus global pandemic may have depressed economic activities, however for many small to medium enterprises (SMEs) it presented a unique opportunity to disrupt markets and take over market share traditional occupied larger corporations. Most SMEs adopted and utilised agile and innovative means such as digital marketing across various social media platforms. Whilst online shops or variants thereof are likely to be the way hoards of consumers within, and indeed outside of Zimbabwe, will make reliance upon as the digital economy continues to take root within Zimbabwe; such enterprises should remain cognizant of consumer rights and operating in a manner that does not contravene the same.
The Consumer Protection Act [Chapter 14:14] was promulgated on the 10th of December 2019, to address amongst other issues the protection of the consumers of goods and services by ensuring a fair, efficient, sustainable and transparent market place for consumers and business. The application of this legislative instrument has been broadly crafted to not only include those persons or entities whom are required to be registered for the purposes of their trade or according to the dictates of the law, however the drafters extended such application to persons or entities operating on a profit basis or otherwise. Furthermore, the Act seemingly has an extraterritorial effect, as it application equally extends to suppliers with their residence or principal office either within or outside of Zimbabwe. The provisions of section 3(3) of the Consumer Protection Act [Chapter 14:14] make it apparent that online shops or electronic commerce is envisioned to fall within the ambit of the legislation. Moreover, sections 52-54 of the Consumer Protection Act [Chapter 14:14] specifically speak to rights and obligations owed to a consumer including a 7 day cooling off period in which the said consumer is entitled to cancel without reason or without penalty the electronic transaction and return the goods. Section 53(3) of the Consumer Protection Act [Chapter 14:14] explicitly prohibits the construing the prescribed cooling off period as a curtailment of consumer rights, which may include non delivery of goods within the said cooling off period. More pertinent to digital marketing tools, section 54 of the Consumer Protection Act [Chapter 14:14] also regulates for the unsolicited commercial communication with consumers. In recent history there have been wide spread complaints reported in the media of consumers being targeted with a barrage of promotional material from suppliers, with no option to discontinue such communications. Section 54 empowers the consumer by mandating the supplier provide an option to opt out of any further communication and further to that the consumer may request the source from which the supplier obtained such personal information. It is therefore of paramount importance that all enterprises engaging in e–commerce through online shops or other variants, be careful with how they interact and deal with strands of information such as phone numbers' email addresses and other personal information. It would be apt to deploy systems and procedures to deal with their interaction with the said information.
Notwithstanding the unique challenges posed by e-commerce and regulations provided under the Consumer Protection Act [Chapter 14:14], enterprises offering such services are still beholden to extend certain globular / generic rights to consumers. The legislative provisions under part three of the Consumer Protection Act [Chapter 14:14] are identified as fundamental consumer rights, hence their universal application. Such fundamental consumer rights include, amongst others the following:
- Right to Choose ( Sections 18 -25 Consumer Protection Act [Chapter 14:14] )
- Right to Information ( Sections 26-32 Consumer Protection Act [Chapter 14:14])
- Right to Fair Contractual Agreements ( Sections 35- 51 Consumer Protection Act [Chapter 14:14])
The right to choose protects the consumers' freedom to choose their preferred goods or services, absent of any undue influence. The right of choice includes the right to select or reject any displayed stock pursuant to the completion of a transaction. More importantly s 18 (3) of the Consumer Protection Act [Chapter 14:14] confers the consumer the right to return the goods upon discovering such goods are not of the preferred choice. It is suggested this provision further buttresses the common law position that a key attribute to a contract of sale is that the said goods should be ascertainable both in terms of quality and quantity. As such consumers have relatively resolute protection which buttresses the right of choice. The right to information obliges that suppliers are truthful with the consumer in all material aspects of the goods or services subject to the transaction. Of key importance to the consumer and supplier alike, is the provision that all goods on sale or services on offer must attach price thereto. Moreover section 26(5) of the Consumer Protection Act [Chapter 14:14] provides that a consumer shall not pay more than the advertised or displayed price, subject the said price including all taxes and levies that would duly attach to such transaction. The following subsection provides some exceptions namely; that the price is dictated by law; that the price was obscured by a second price on the advertisement and that the price was inaccurate provided that the supplier has taken steps to inform the consumer of the erroneous price advertised. The right of consumers to fair contractual agreements is a safeguard against the unconscionable dealings such as suppliers abusing or unduly exercising their bargaining power contrary to the principle of fair dealing. Section 35(2) of the Consumer Protection Act [Chapter 14:14] proscribes the use of physical force, coercion, undue influence, pressure, duress, harassment or unfair tactics against a consumer at any stage during interface /interaction with consumer. Such stages of interactions expressly noted under the provision include marketing, supply of goods, negotiation and conclusion of a supply of goods or services, demand of collection of payment for goods or services, and the return of goods or services. Though not exhaustive, the fundamental consumer rights noted above capture some of the important obligations suppliers should remain cognisant of owing to consumers.
Online shopping and other e-commerce variants have provided novel solutions to expanding commerce beyond the conventional. Indeed these solutions have sustained commerce and trade through a global pandemic that brought the world's trade to a grinding halt and global economies into a tail spin. However progressive the solutions may be, it should be noted that the relationship between the consumer and supplier is regulated by fundamental consumer rights that attach even to such platforms such as online stores and adherence to such rights is a source of competitive advantage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
