Our reporter Ren Zhenyu
A few days ago, the China Consumers Association released the "Investigation Report on Consumer Cognition and Lead Collection of "Unfair Standard Terms".
On August 22, lawyers from the China Consumers Association's Lawyers Group commented on the unfair standard terms in the online shopping field that consumers strongly reflected.
①The unilateral change of the service agreement defaults to the consumer's consent or only publicizes the new terms without re-obtaining the consumer's consent
Terms: If you still do not agree with the changes that have taken effect, you should stop using the company's own designated online channels from the date when the changes are confirmed, and the changes will not have effect on you; If you continue to use the company's own designated online channels after it takes effect, it will be deemed that you agree to the changes that have taken effect.
Comments: According to the law, the modification of the agreement shall be subject to the unanimous consent of the parties to the agreement before the modification can take effect.
When operators change the text of standard clauses, they shall publicize them in advance in accordance with statutory requirements, and take reasonable measures to remind consumers to pay attention to clauses that have a major stake in them.
Before the modification of the terms takes effect, the operator shall obtain the explicit consent of the consumer, otherwise it will not be effective for the consumer.
Operators cannot replace consumers' consent by public announcement or consumer acquiescence.
② Unauthorized expansion of the range of products that are not applicable to 7-day no-reason returns
Terms: Clearance goods do not support 7-day no-reason return and exchange, mind carefully shooting.
Comments: According to the "Consumer Rights Protection Law", except for the four categories of specific commodities stipulated by the law and other "commodities that are not suitable for return according to the nature of the commodities and confirmed by consumers at the time of purchase", the return without reason is not applicable. From the date of the product, you have the right to return it for no reason within seven days.
The seven-day unreasonable return of remote shopping is a statutory right of consumers. Operators cannot arbitrarily expand the scope of inapplicable seven-day unreasonable return in the name of "clearance", "last stock" and "special goods", and restrict consumers from exercising their rights.
For clearance goods, first of all, it depends on whether the goods are the four specific categories of goods stipulated in the "Consumer Law"; secondly, whether the goods are "goods that are not suitable for return according to the nature of the goods and confirmed by consumers at the time of purchase", if they do not belong to the aforementioned In both cases, consumers shall have the right to return or exchange goods within seven days without any reason in accordance with the law.
Therefore, for the standard clauses such as "unauthorized expansion of the scope of goods that are not applicable to seven-day unreasonable returns", such standard clauses are invalid because they are "excluded or limited consumers' rights, reduced or exempted from the operator's responsibility".
③In online shopping, if consumers buy goods due to false propaganda by the operator, the operator only supports refunds and returns, and does not assume punitive damages, and the online shopping platform does not help consumers to safeguard their legitimate rights and interests on the grounds that they are not compulsory.
Terms: The seller falsely advertises the sale of goods, and the buyer purchases based on living consumption, the transaction only supports refunds.
If the consumer claims compensation, the seller and the consumer should resolve it by themselves.
Comments: Consumers have the right to claim triple compensation for operators who sell products through fraudulent means such as false propaganda.
The standard clauses of "only support refunds, do not bear (support) punitive damages" obviously reduce the compensation cost of operators, condone their illegal behavior, and limit consumers' right to obtain punitive damages. Standard terms are invalid.
According to the relevant provisions of the E-Commerce Law, platform operators should earnestly fulfill their platform supervision obligations, and ensure that operators on the platform operate in accordance with the law by entering into relevant agreements with operators on the platform and setting up consumer rights deposits. If anyone knows about the act of selling fakes, the platform should also deal with it in accordance with relevant laws and agreements, and compensate consumers to the greatest extent by pursuing the operator's responsibility for breach of contract, rather than turning a blind eye and evading it, otherwise it should also bear the corresponding responsibility.
④ If the product promotion and introduction on the sales page agrees that it does not form part of the contract, and the content is wrong or distorted, which is misleading to consumers, the operator will only refund and return it, and refuse to bear punitive damages, and the online shopping platform will not be liable for punitive damages. Not taking measures to help consumers protect their rights on the grounds that they are not enforceable
Terms: Due to the differences in page display when viewed with different mobile terminal devices, the images and colors of the products promoted by the company may not be consistent with the real items.
Therefore, all displayed pictures, videos and other methods of displaying merchandise are for illustration purposes only and are not considered to be part of the contract under any circumstances.
If the item offered for sale is different from the description on the website, your sole remedy is to return the item without use under this agreement.
Comments: Under normal circumstances, commercial advertisements are an invitation to offer and do not constitute part of a sales contract. However, if the description of the product on the product details page has clear and specific parameters and other content, it constitutes an offer and becomes the main content of the contract.
For example, in the mobile phone sales page, the specific description of the mobile phone performance parameters, screen information, system and hardware information, etc.
In this case, the product details on the sales page constitute the necessary information and the main decision-making basis for consumers to understand the situation of the product, and essentially constitute an integral part of the contract. , distortion and misleading consumers, it is suspected of constituting false propaganda, and the relevant exemption standard clauses formulated by operators to avoid their false propaganda responsibilities are also not legal and reasonable because they are suspected of "reducing or exempting operators' responsibilities".
⑤The quantity and price of commodities are the key information of the transaction, and the operator should fulfill the obligation of review to ensure that the relevant information on the sales page is accurate and does not mislead consumers.
When mistakes occur in practice, the operator refuses to assume responsibility for negligence in contracting, arbitrarily "cuts orders", and refuses to assume responsibility for delivery
Terms: Despite the seller's best efforts, due to market changes and various factors that are difficult to control with reasonable commercial efforts, it is unavoidable that the products in the order information submitted by you will be out of stock, wrongly marked with prices, etc. ; If the above situation occurs in the products you ordered and purchased, causing a major misunderstanding, you have the right to cancel the order, and the seller also has the right to cancel the order on its own. If you have already paid, you will be refunded.
Comments: If the commodity information released by the operator meets the conditions of the offer, after the consumer chooses the commodity to submit the order and pays the payment, the online shopping contract is established and takes effect. The operator shall perform the obligation to deliver the commodity in accordance with the contract. Incorrect delivery or price setting is a breach of contract due to cancellation of the order.
Without the consent of the consumer, the operator directly "cuts the order", and the consumer can choose to ask the operator to continue to deliver goods as agreed before. The operator can request the operator to refund and bear the corresponding liability for breach of contract.
⑥ The operator shall not send commercial information to the consumer without the consent or request of the consumer, or if the consumer expressly refuses.
The online shopping platform regards consumers agreeing to register or purchase a certain brand product as agreeing to send commercial information to them
Terms: Once you register a user account, you are deemed to agree that the company and/or its affiliates will send the corresponding product advertisement information, Marketing information such as promotional offers; if you do not agree to send it, you can unsubscribe through the corresponding unsubscribe function.
Comments: When asking consumers whether to agree to receive commercial information, operators should obtain the explicit consent of consumers separately, and should not acquiesce to consumers' consent in a package agreement.
Operators may not send commercial information to consumers without the explicit consent of consumers or the explicit refusal of consumers.
Even if the consumer agrees, the operator shall provide the consumer with a conspicuous, simple and free way of refusing to continue to receive, so that the consumer can refuse to receive it at any time; if the consumer refuses to receive, the operator shall not change the name and send it again.
⑦ Without legal procedures and consumer consent, unilaterally calling consumer funds based on the platform's determination results
Terms: If a third party suffers losses due to your actions, or you fail to perform the mediation decision, the company and/or its affiliates may instruct the payment company to deduct the corresponding amount from your payment account for the protection of social and public interests. Payment is made.
If your account balance or margin is insufficient to pay the corresponding amount, you agree to entrust the company to use its own funds to pay the above amount on your behalf, and you should return the part of the fee and compensate for all the losses caused to the platform.
Comments: For the personal property of consumers stored in online shopping platforms or third-party payment accounts, operators should ensure the safety of consumers' funds and should not transfer them without legal procedures.
Without the consent of the consumer or the agreed conditions not being fulfilled, especially if the consumer has not activated the password-free payment or automatic deduction service, the platform shall not deduct funds from the consumer's account without authorization.
Even if the deduction is made when the agreed conditions are fulfilled, the obligation to inform should be fulfilled first, to protect consumers' right to know, and to provide consumers with remedies and solutions.
⑧ Consumers' consumption points, recharge coupons, etc. belong to personal virtual property, and consumers have the right to control and use them.
Operators are not allowed to use without the consent of consumers
Terms: You understand and agree that the ownership of personal accounts, points, XX coins, vouchers and other Internet products and services in the company's user management system belongs to the company, and members have the right to use the above products on the premise of meeting the rules announced by the company and services.
Comments: At present, there are no specific legal provisions for the protection of online virtual property in my country, but there is no doubt that online virtual property is legally protected by law, especially commercial accounts with commercial value and points that can be reflected in a certain value. , tokens, vouchers, etc., obviously have a certain property, and the property belongs to the consumer personally, and the operator shall not use or dispose of it without the consent of the consumer;
⑨Consumption evaluation and other information generated by consumer shopping belong to the creative content of consumers. The platform unilaterally deprives consumers of their intellectual property rights and other rights, and compulsorily obtains the rights of exclusive use and sublicense to third parties.
Terms: For non-personal information such as text, pictures, video, audio and other information other than personal information that you provide, publish and form in the use of the company's services, no intellectual property rights, portrait rights and other rights will arise due to uploading, publishing, etc. transfer.
Unless we specify otherwise, to the extent permitted by law, you grant the company and its affiliates, payment companies a non-exclusive, unrestricted license to use (including storage, use, reproduction, revision, editing, publishing, displaying, Translate, distribute the above information or make derivative works, incorporate the above information into other works in known or later developed forms, media or technologies, etc.) and the right to sublicense to third parties, and to infringe on third parties in its own name The right to take evidence and bring a lawsuit.
On this platform, users may need to provide content to this platform in various ways such as posting comments.
In this case, the user still enjoys the complete intellectual property rights of such content, but promises not to authorize other subjects to copy and use the information published on this platform in any form.
When users provide content, they will grant the platform a worldwide free license to allow the platform and its affiliates to use, distribute, reproduce, modify, sublicense, translate, create derivative works, publish, perform and display such content
Comments: If the consumer's evaluation is original, the consumer will obtain the copyright of the relevant evaluation in accordance with the law, and enjoy the relevant rights of reproduction and information network dissemination in accordance with the law.
If the platform needs to use consumer evaluations, it should enter into a licensing contract with consumers, and the terms required by the aforementioned legal provisions must be agreed in the contract; instead of requiring consumers to authorize in general terms through service agreements to limit or exclude consumer rights purpose.
⑩ After the consumer cancels the account, the platform shall delete the relevant information in a timely manner after the storage period of the service information and transaction information required by the state has expired, and shall not use the consumer’s information for business activities.
Terms: After the termination of this agreement, the company still enjoys the following rights: (1) Continue to save the various types of information listed in Article 5 of this agreement that you have retained on the trading platform...
Comments: According to relevant laws and regulations, if a consumer cancels the account, the operator shall delete the consumer's information after the statutory period expires.
If the operator wants to retain the consumer's information through an agreement between the two parties, the operator should obtain the explicit consent of the consumer separately, and agree on the specific use situation, scope, period, purpose, etc., and cannot store the user's information for a long time through general terms, otherwise the cancellation will be useless.