Australian and regional regulatory responses to the key challenges of consumer protection in electronic commerce (March 2008)

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1. Introduction

It is common to note in the world of electronic commerce that traditional borders are meaningless and local laws and regulations are irrelevant. In the field of consumer protection in the online marketplace, surely some form of global regulation is required?

However, experience tells us that global regulation has been slow to emerge, and local and regional laws continue to play a key role in protecting consumers from the myriad risks they face when engaging in electronic commerce. When examined closely, these laws differ significantly from jurisdiction to jurisdiction. Each have their strengths and weaknesses, and navigating through the maze of different legal regimes and enforcement arrangements presents a challenge for consumers, and an opportunity for dishonest businesses.

In recent times a strong movement has emerged to harmonise laws, so that even in the absence of a global regime, the differences between local laws are minimised, offering a consistent standard of consumer protection and even reducing compliance costs for legitimate businesses. The harmonisation movement is itself broken down into ‘hard harmonisation’ and ‘soft harmonisation’ approaches, and true success stories are rare. However, harmonisation seems to present a more realistic option than a global regulatory regime.

This article examines the Australian and regional regulatory landscape for consumer protection in electronic commerce.

Although consumer protection in electronic commerce is a complex issue that requires an analysis of many cyberlaws, for ease of use this Article limits the analysis to the following laws:

• Consumer protection;
• Electronic contracting;
• Privacy and data protection;
• Spam; and
• Jurisdiction.

The article notes that a number of significant regional efforts in ASEAN, APEC and the Pacific Islands Forum (PIF) are underway to harmonise electronic commerce laws, and these may have some benefits for consumer protection. The article also notes several significant Australian developments in online consumer protection, but concludes that the key feature of the Australian regulation of consumer protection in electronic commerce is that it is unplanned, uncoordinated and ad hoc. The article queries whether Australia could do more to coordinate its own consumer protection measures, and would benefit from greater participation in regional harmonisation efforts.

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