Consumer Rights in the Digital Age

The right of withdrawal as a protection mechanism in e-commerce
 

Consumer protection rules are a challenge, as well as a necessity, in today’s market. This need increases when we are faced with electronic commerce and the need to guarantee security to consumers so that they can venture with peace of mind in the development of contracts entered into and executed by virtual means.

Within Colombian law, in the content of Law 1480 of 2011, the so-called ‘right of withdrawal’ was recognised as a consumer protection mechanism. Its application is based on the recognition of the consumer as the weaker party in the contractual relationship, and allows the consumer to withdraw his or her consent or, in other words, to ‘regret’ the purchase made without incurring any penalty or cost. This, of course, is a very important exception to the general rule of the enforceability of contracts and the impossibility for one party to unilaterally render a bilateral agreement ineffective.

The study of this law and its application in the world today is particularly relevant in a context in which consumer relations have skyrocketed thanks to the possibility of making contracts for the acquisition of goods and services on a massive scale by digital means.

With regard to the figure of the right of withdrawal in Colombia, it is relevant to highlight that, although its first vestiges occurred in article 41 of Decree 3466 of 1982, it was not until 2011 that it was introduced as a consumer right, as a weak part of the relationship with producers and suppliers.

Currently the right of withdrawal in Colombia is regulated in article 47 of Law 1480 of 2011, according to which ‘In all contracts for the sale of goods and provision of services through financing systems granted by the producer or supplier, sale of timeshares or sales using non-traditional or distance methods, which by their nature are not to be consumed or have not begun to be executed before five (5) days, the right of withdrawal by the consumer shall be deemed to have been agreed. In the event that the right of withdrawal is exercised, the contract shall be terminated and the money paid by the consumer shall be refunded. ’

When analysing the figure of the right of withdrawal from comparative law, we come across regulations that have also dealt with it, with certain particularities.

As an example, Chilean law also contemplates the figure. It does so in Law No. 19.496 of 1997 and grants a period of 10 days to the consumer to exercise this right. As a particular element, it should be noted that the rule establishes that the right of withdrawal can be unilaterally excluded by the supplier, as long as he expressly and clearly warns the consumer.

Spanish law, for its part, provides for the so-called withdrawal by granting a longer period than that granted in Colombia (namely 14 days). It also establishes an extensive list of scenarios in which the so-called withdrawal shall not apply, with the non-application in cases of accommodation services standing out.

The Argentinean and Brazilian legislations contemplate similar figures to the withdrawal, establishing in the first case (Argentinean legislation) the obligatory, binding and unrenounceable nature of the figure.

As can be seen, the right of withdrawal is widely disseminated in the region, thus recognising the importance of granting consumer protection mechanisms. It is worth noting that this figure should not be understood solely as an advantage to the consumer, since, although it is true that the supplier or retailer is affected by it, it is clear that its existence constitutes a fundamental guarantee to create confidence in its consumers and clients, a requirement of great importance to allow greater participation in the virtual and digital market.

Notwithstanding the above, certain difficulties may be encountered with the figure of withdrawal in Colombia, especially when talking about e-commerce with an international component. Although the Colombian regulation sought to create a mechanism of joint and several liability applicable to all those involved in the local chain (allowing the consumer to pursue in Colombia a person who is located in the country), both consumer protection and the liability of a possible local intermediary do not really solve the underlying problem, Since in cases of suppliers abroad it becomes highly inconvenient (the low amounts that these disputes usually involve make it economically unfeasible to pursue the collection of such amounts) to pursue compliance, even when the responsible party is the local representative or intermediary.

Therefore, the need to integrate national legislation in this area becomes a necessary step, with a view to recognising that the digital market is also characterised by its lack of limitation as a consequence of national borders.

Given that the figure exists and has been recognised and protected locally by various countries in the region, the creation of international standards that are enforceable and recognisable regardless of the location or domicile of the final responsible party would generate greater reliability in the system and fairer results.

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