The Resolution of the Secretariat of Domestic Trade 270/2020, that will be effective on March 7, 2021, included in the Argentine legal system the Resolution of the Common Market Group 37/2019, that regulates consumer protection in e-commerce.
The whereas clauses of Resolution 270 recall that the Member States that executed the Treaty of Asunción in due time decided to regulate the consumer’s right to information in the business transaction carried out through the Internet by means of the Resolution of the Common Market Group 21, issued on October 8, 2004, that set forth the suppliers’ obligation to offer clear, precise and easily noticeable information in the Internet sites on the characteristics of the goods and services offered, as well as regarding their commercialization conditions.
But, the whereas clauses continue by saying, due to the fact that as from the issuance of the above said regulation more than fifteen (15) years have elapsed and within said period, on one hand there were very important changes in the consumer market, that had a strong impact in e-commerce transactions and on the other there was a strong increase of the transactions carried out through the web platforms and the consumers’ participation in this type of commercial modalities, the Common Market Group decided to update and supplement the consumers’ rights in e-commerce, through the issuance of the above said Resolution 37/2019.
As an additional justification of the measure, the whereas clauses of Resolution SCI 270/2020 point out that in said fifteen (15) years the United Nations Guidelines for Consumer Protection were updated and different international recommendations were issued, among them the criteria set forth by the OECD related to the consumers’ rights in electronic contracts; which circumstances, among others, determined the need and advisability of updating the regulations that protect consumers’ rights in e-commerce in the South American Common Market (MERCOSUR).
Likewise, the regulation reminds that section 42 of the National Constitution provides that the consumers and users of goods and services are entitled, in connection with consumption, to receive proper and true information; freedom of choice and equitable and decent treatment conditions and that it is the duty of the authorities to provide for the protection of said rights.
And finally that, in the same sense, Act 24,240 sets forth in its section 4th that the supplier is obligated to furnish to consumer in a certain, clear and detailed manner everything related to the essential characteristics of the goods and services that it supplies and their commercialization conditions setting a framework of necessary information that the supplier of goods and services must grant to consumer so that the latter may adopt a free and well-founded decision.
Within said framework, in order to guarantee consumers, throughout the process of the transaction, the right to receive clear, sufficient, true and easily accessible information on the supplier, the product or service as well as on the transaction performed, the Common Market Group Resolution 37/2019 sets forth – among other obligations of the suppliers– that they must make available for consumers, in their web site and other electronic means, in an easy-to-view place and prior to the formalization of the contract, the following information:
1. Trade name and corporate name of supplier;
2. Physical and electronic address of supplier;
3. Customer service email;
4. Taxpayer identification number of supplier;
5. Identification of manufacturer, if applicable;
6. Identification of registers of products subject to previous authorization regimes, if applicable;
7. Essential characteristics of the product or service, including the risks for the consumers’ health and safety;
8. The price of the products and services offered, including taxes and a detail of any additional or incidental cost, such as delivery or insurance costs;
9. Payment terms, detailing the number of installments, their periodicity and the total financial cost of the transaction, in the event of installment sales;
10. The terms, conditions and limitations of the offer and availability of the product or service;
11. The conditions to which the legal and/or contractual guarantee of the product or service are subject; and
12. Any other important condition or characteristic of the product or service that should be known by consumers.
Usually, a large proportion of the information required by the regulation appears in the most important web sites of e-commerce in Argentina.
But, another proportion of information that is now required does not appear. And in some cases, to include it shall require significant efforts, not clearly justified. In other cases, the issuance of supplementary regulations to define the information that must be offered is at least desirable – if not essential -.
Let me explain, for example, the identification of the manufacturer, in the cases of suppliers – such as the large supermarkets and household items and building materials shops – that sell several thousands of different items shall be, certainly, a major effort.
The information of the registers of products subject to previous authorization regimes – for example, food – shall imply in addition the investment of vast human resources and materials to be informed in the Web sites.
In neither of the cases mentioned above it would seem that the alleged consumer’s benefit is higher than the cost of making available an information that, in general, is rather simple to obtain for the interested party and at least in most cases, of little importance for the purchase decision.
The detail of additional costs, even those specified in the Resolution, unless they are merely mentioned, is at least complex. The delivery costs, for example, many times depend on the distance where the acquired goods should be sent. Will it be enough in the case to specify the cost of the delivery per kilometer?
Since it is difficult to think that there are absolutely safe products, to make possible the performance of the duty to inform the risks for the consumers’ health and safety – in my opinion – this duty should be limited to the inclusion of the legal legends that are mandatory to be included in the advertising of the products or services for sale. For example, in the case of alcoholic beverages, the obligation should be considered performed with the inclusion of the legends: DRINK RESPONSIBLY. SALE FORBIDDEN TO ANYONE UNDER THE AGE OF 18.
The duty to inform “Any other important condition or characteristic of the product or service that should be known by consumers”, is absolutely subjective and therefore impossible to comply with, and must be limited also, through a clarifying resolution.
In addition to the supply of the information summarized above, the supplier must ensure in its web site and other electronic means used by it for e-commerce easy access and clear visibility of the contract terms, ensuring that they may be read, kept and/or stored by consumer in an unalterable manner.
The regulation of the contract terms requires that the drafting of the contract with consumer should be carried out in a complete, clear and easily legible manner, without mentions, references or referrals to texts or documents that are not simultaneously delivered.
Supplier must additionally present in its web site and other electronic means used by it for e-commerce a summary of the contract prior to its formalization, emphasizing the most important clauses for consumer, and if they are not identified, this obligation – to say the least –is very difficult to perform without a proper regulation.
In order to formalize the contract, the supplier must grant to consumer the technical means to be aware of and correct the mistakes in the data entry, before performing the transaction, and this regulation deserves to be explained also. Likewise, it must provide a mechanism to allow the express confirmation of the consumer’s decision to carry out the transaction, so that the consumer’s silence is not considered as a consent.
The consumer may exercise his/her right of repentance or retraction within the terms set forth by the applicable regulations.[1]
We point out, finally, that within the framework of e-commerce the supplier is obligated to provide customer service, which – pursuant to the Resolution under analysis – must be efficient.
We deem that the Resolution seeks, ultimately, to offer proper protection to consumers in electronic contracts. But we consider also that, without the issuance of supplementary regulations to clarify the extent and, in some cases, to make possible the performance of the duty to inform by the suppliers is now at risk of turning into a source of fruitless conflicts, it is not going to help the development of the business relationships between suppliers and consumers within the framework of the increasingly used e-commerce.
[1] Section 34 of Act 24,240 sets forth the power of retraction for – among others – the contracts executed through electronic means, namely “Revocation of acceptance. In the cases provided for in sections 32 and 33 of this Act, the consumer is entitled to revoke the acceptance for the term of TEN (10) running days as from the date on which the good is delivered or the contract is executed, whichever comes last, without any responsibility whatsoever. This power can neither be dispensed with nor waived.
The seller must inform this power of revocation in writing to consumer in every document that as a result of the sale is submitted to consumer.
Such information must be included in a clear and visible manner.
The consumer must make the good available for the seller and the restitution expenses shall be borne by seller.
(Section substituted by section14 of Act 26,361, published in the Official Gazette on 4/7/2008).
In turn, the Civil and Commercial Code of the Nation, regulates also the revocation of the contracts executed through electronic means. Its section 1110 sets forth the following “Revocation. In the contracts executed outside the shop premises and remotely, the consumer has the inalienable right to revoke the acceptance within ten days as from the execution of the contract.
If the acceptance is subsequent to the delivery of the good, the term must begin as from the delivery of the good.
If the term expires on a non-working day, it is extended up to the following first working day.
The clauses, agreements or any modality accepted by consumer during this period which result is the impossibility of exercising the right of revocation are considered unwritten.
The duty to inform the right of revocation is regulated in addition by the Civil and Commercial Code of the Nation (SECTION 1111), that sets forth that the supplier must inform the consumer on the power of revocation by means of its inclusion in highlighted characters throughout the document submitted to consumer at the negotiations stage or in the document that formalizes the executed contract, placed immediately before the signature of the consumer or user. The right of revocation is not extinguished if the consumer has not been duly informed on his/her right.