Passengers,consumers, and travellers: The rise of passenger rights in EC transport law and its repercussions for Community consumer law and policy

EC transport law is set to be complemented by a series of Regulations giving rights to passengers for almost every mode of transport. These Regulations not only give transport law a distinct consumer dimension but also add new elements to European private law. This paper attempts to provide a horizontal, or intermodal, survey of these Regulations, adopted and proposed. It is argued that passenger law, although originating separately and remaining a sector distinct from other fields of law, has become part of a wider, three-stranded notion of European consumer policy deserving due attention as the force most dynamically expanding the area of Community law of contracts and of torts. The paper will point to the elements of consumer contract law and the law on travel and tourism related to passenger transport and elaborate on the basics for finding a common notion of the key terms like “passenger” and “damage” for Community law. It concludes with some points for further reflection.

“To Be or Not to Be an Auctioneer?” Some Thoughts on the Legal Nature of Online “eBay” Auctions and the Protection of Consumers

This paper discusses the legal classification of online “eBay” auctions. The discussion has key implications on the scope of consumer protection law as sale by auctions are, for example, excluded from the scope of the Consumer Protection (Distance Selling) Regulations 2000. The paper uncovers that online “eBay” auctions cannot always be considered as traditional auctions and that eBay, as an intermediary, is not to be considered as an auctioneer. This creates difficulties associated with a distributive application of consumer protection laws such as the Consumer Protection (Distance Selling) Regulations 2000. Another set of difficulties is associated with a lenient legal regime applicable to the liability of eBay under the Electronic Commerce (EC Directive) Regulations 2002. The paper concludes that there is an urgent need to clarify the legal classification of online auctions and to rethink the liability of online auction sites to better protect consumers.

A “New Approach” to Standards and Consumer Protection

As consumer use of information and communication technology (ICT) products grows, the importance of ICT standards in consumer markets also grows. While standards for manufactured products were once developed at the national level in formal standards bodies, standards for ICT products today are more likely to be developed by informal standards bodies that target global markets, creating new challenges for national consumer protection laws. As part of the process of creating a single market, the EU developed an innovative and successful form of “coregulation” known as the “New Approach” that coordinated the work of legislators and standards developers to reduce technical barriers to trade in the internal market. In order to protect consumer interests in markets for ICT products effectively, another “New Approach” is needed to coordinate the work of global ICT standard-developing organizations with the goals of national and regional consumer protection laws, but the institutional challenges facing such a strategy are daunting. The French DADVSI legislation represents progress in this direction; further progress may be possible by adopting “better regulation” strategies.

Integrating Consumer Rights into Copyright Law: From a European Perspective

Until recently consumers and consumer-interests have been virtually absent not only from the rules of copyright but also from copyright’s discourse. This has been so even though the combination of an expansion of copyright and a devaluation of the internal balancing mechanisms raise concern from a consumer perspective. There would, therefore, seem to be a need to incorporate a consumer perspective into copyright analysis. To integrate consumer interests in copyright law, this study recommends action aimed at two levels. On the general level it is suggested to rebalance copyright in order to recognize the interests of users on the same level as right holders. On the concrete level it is suggested to change the limitations found in copyright to ease access to reuse elements of previous works. It is also proposed to reinforce the rule on private copying and to consider measures to secure access to basic information.

Accommodating the Needs of iConsumers: Making Sure They Get Their Money’s Worth of Digital Entertainment

The current methods of distributing music and film on the mass-market, either off-line or on-line, raise two types of consumer protection issues. First, consumers are not always in a position to know what they can and cannot do with their digital hardware and content. A lack of proper information and the ensuing failure of the products to meet the consumer’s expectations inevitably leads to discontent. In addition, as weaker party in the transaction, consumers have often no other choice but to accept or refuse the restrictive terms of use, even if these could be regarded as unfair. This paper examines whether European law is amenable to accommodate the iConsumer’s needs, and if so, in what form.

Download of Copyright-Protected Internet Content and the Role of (Consumer) Contract Law

The software, music, and movie industries keep suggesting to consumers that if they copy digital contents they may find themselves in jail. Moreover, horrifying damage claims are in the air. The problem with these scenarios is, amongst others, that it is difficult to understand for consumers where their rights end and where illegal use of content begins. This article focuses on the contractual relationship between online content providers and consumers. It explores relevant consumer law issues and lays open the legal uncertainties of the current regimes at the European Community (EC) and national level. The article then looks at current ideas put forward by the Commission on how to regulate internet consumer law. It concludes that a sector-specific i-consumer contract law should be introduced and offers proposals related to its possible content.

The average consumer, the unfair commercial practices directive, and the cognitive revolution

This article examines the merit of the test of the average consumer as a basis for judicial and regulatory action. In the first part, we describe the origin of the test, its application in the Unfair Commercial Practices Directive and its possible developments. In the second part, we discuss the theoretical grounds of the average consumer test (i.e., information and rationality), drawing upon the studies of cognitive psychology and behavioural economics concerning consumers’ behaviour. The result of our analysis is that we call into serious question the practical workability of the test of the average consumer, which requires consumers an overly demanding standard of rationality and information without dedicating much attention to the real functioning of consumer behaviour. The average consumer may be described as an interesting, anti-paternalistic and, to some extent, useful notion. It is, however, an overly simplistic concept with little correspondence with the real world of individual consumer behaviour and should be reinterpreted more flexibly, or even abandoned to mirror consumer behaviour more effectively.

Country of Origin Principle in the EU Market for Audiovisual Media Services: Consumer’s Friend or Foe?

The country of origin principle, the cornerstone of the EU Television Without Frontiers Directive – to become the Audiovisual Media Services Directive – is often criticised as being insensitive to the legitimate national public interest to protect viewers – and consumers – of audiovisual media content. This paper seeks to demystify this pessimistic perception of the country of origin rule from the perspective of the consumer interest. It demonstrates that the possible negative repercussions of the country of origin logic for consumer welfare are mitigated in three ways: by specific derogations possibilities foreseen in the Directive in case of violations of the fundamental rules on protection of minors and of human dignity; through the margin of broadcasting control left to the Member States in the areas beyond those coordinated by the Directive, and by means of a new two-step anti-circumvention procedure introduced by the new Directive.

The shipping strategies of internet retailers: Evidence from internet book retailing

Managing the shipment of goods to consumers is one of the central aspects of retail competition on the internet. In this article, we analyze internet retailers’ shipping strategies using data from the internet book retailing industry. We find that, controlling for a variety of observable firm characteristics, firms with lower product prices offer lower shipping fees and higher quality shipping in terms of average delivery time, compared to firms with higher product prices. These patterns cannot be readily reconciled with a large class of models of competition under perfect consumer information. Theories based on imperfect consumer information can explain the findings better.

Technological advances in digital cameras: Welfare analysis on easy-to-use characteristics

This paper examines the characteristics attributed to the success of digital cameras by studying both the demand and the supply sides of the digital-camera market. A discrete choice model is employed to investigate consumer preferences over digital camera characteristics during the period 1996–1998. The empirical findings reveal that Sony’s ‘Easy-to-Use’ storage system contributes significantly to Sony’s demand advantage and profitability. Also, the welfare analysis demonstrates that ‘Easy-to-Use’ attributes significantly contribute to social welfare improvement.

Third-Degree Price Discrimination in the Presence of Asymmetric Consumption Externalities

In this paper, we consider third-degree price discrimination in two markets in the presence of asymmetric consumption externalities; we establish that under plausible conditions, a firm reduces its price in the market with low price elasticity of demand. The firm can increase its profits by reducing the price for these consumers and enlarging the demand for other consumers, provided that positive consumption externalities exist. Moreover, we show that third-degree price discrimination enhances not only the firm’s profit but also total consumer surplus.

Market Concentration, Economic Welfare, and Antitrust Policy

The authors review the foundation for incorporating market concentration directly into consumer utility functions, and develop a general equilibrium model to derive welfare-maximizing principles for optimal enforcement of antitrust policies toward concentrated market structures, including merger policy. An intriguing result is that increased market concentration can fail to maximize economic welfare even if a proposed merger might generate positive net efficiencies.

Protecting the Most Vulnerable in Consumer Credit Transactions

There are two key ways in which the Australian Uniform Consumer Credit Code seeks to protect consumers in relation to consumer credit transactions. The first is by means of disclosure regulation where information is required to be disclosed to the consumer before the credit contract is entered into and the second is by way of “safety net” provisions, where contracts can be varied or set aside in the event of hardship, a finding that the transaction was unjust, or a finding of unconscionable fees or charges. This article explores the limitations of both of these means of protection, particularly in the case of vulnerable, low-income consumers. In order to highlight the inadequacies of these forms of consumer protection and the need for regulatory reform, we draw on interviews conducted with 30 low-income consumers who had recently signed a credit contract, focusing on their understanding of information disclosed in the contract, as well as their responses to hypothetical unfair terms and their understanding of their rights, for example in the event of an unjust transaction. These interviews were conducted as part of a joint research project between Brotherhood of St Laurence and Griffith University’s Centre for Credit and Consumer Law, funded by Consumer Affairs Victoria.

Higher educational services exports: sources of growth of Asian students in US and UK

The paper reviews the recent trends and current developments in the global higher education market with a particular focus on growth of Asian students studying in US and UK. Using pool cross section-time series data over the 1985–2003 period, it is found that different factors affect students from different countries differently. This suggests that the marketing strategies of offshore higher education providers need to be tailored to the specific needs of different markets in order to be successful. The emergence of a number of new players in the higher education export market is also rapidly becoming a major threat to the traditional higher education service exporters.

When Should “Consumers-as-Producers” Have to Comply With Consumer Protection Laws?

Since the 1960s, consumer protection law has been built on the contrast between large “producers” and small “consumers.” Today, instead, an ordinary consumer owns what can accurately be called a “personal mainframe”—a home computer whose processing power matches an IBM mainframe from about 10 Years ago. Equipped with a personal mainframe—an Information-Age factory—ordinary “consumers” at home are increasingly also becoming “producers.” As unregulated consumers become regulated producers, a major legal question is whether and when the individual should have to comply with consumer protection laws. The discussion here selects four examples of US legal rules that might apply to consumers-as-producers, with recommendations spanning the range of possibilities: (1) consumer privacy legislation: creating a threshold, with no compliance required for databases of fewer than 5,000 names, is recommended; (2) advertising substantiation: concerning the requirement that advertisers have a “reasonable basis” for their claims, applying current law to small advertisers is recommended; (3) spam: current law does not create a threshold for those who send a few commercial emails, but such a threshold is worth considering; (4) political blogging: the author agrees with the US Federal Election Commission decision to create a major exemption from campaign finance laws for online political advocacy, even for large blogs or websites. The common theme among these recommendations is to describe the sort of harm that existing law seeks to reduce. The approach here next looks at how the use of personal mainframes affects creation of those harms. Where the sorts of harm are likely to be created by consumers-as-producers, the analysis tilts towards requiring compliance. Where the sorts of harms are unlikely to be caused by consumers-as-producers, then the case for an exception is stronger.

Framing the Corporation: Royal Dutch/Shell and Human Rights Woes in Nigeria

Transnational corporations are often implicated in conflicts over environmental problems and human rights in developing countries. As a result they become targets of both local and transnational campaigns. Given the lack of resources and influence of local activists, campaigning groups often turn to consumer audiences abroad to pressurize a certain company or brand. That requires agenda-setting and “framing” of the issues concerned in order to gain consumers’ attention. Local activists and campaigning groups use the public sphere to call attention to allegedly dubious corporate policies and practices that lie behind the consumer goods offered for sale in the Western world. Based on an analysis of the public discourse about the operations of the oil multinational Royal Dutch/Shell in Nigeria in the year 1995, this paper suggests that once the corporation is framed as a moral actor, it gets difficult for the corporation to deny its responsibility for human rights—even though the actual influence of the corporation may be limited.

Fundamental Rights and the European Regulation of iConsumer Contracts

This paper addresses the question of how fundamental rights affect European legislation and adjudication on contracts regarding digital information services (iConsumer contracts). Fundamental rights may be seen as representing political choices for the protection of certain values in society, but at the same time, they are enacted rules of the legal system, which may be invoked to enforce the protection of the interests they represent. It is submitted that because of this double-faced nature, they can bring to the fore policy issues in contract legislation and case law. Fundamental rights can thus play a role in evaluating the policy choices that are being made in the review of the acquis communautaire in the field of consumer law. For iConsumer contracts, that means that the rights of consumers, authors, and suppliers of copyright-protected content affect the choice of rule-solutions on the European legislative level. Furthermore, these rights have an impact on the case law of the European Court of Justice in the field of e-commerce. Fundamental rights help define the various rule-solutions the Court can choose from and thus demarcate the law-making capacity of the judiciary.

Looking Ahead—Future Issues when Reflecting on the Place of the iConsumer in Consumer Law and Copyright Law

The following is a brief report of the discussion and main comments that were made during a workshop ‘The place of the iConsumer in EU and US law—protecting consumers of copyright protected content’, held in Amsterdam on 14 and 15 of December 2007. The workshop was part of a series of joint events organised by the Berkeley Centre for Law and Technology, University of California (BCLT) and the Institute for Information Law (IViR), University of Amsterdam on copyright and a follow-up to the conference on ‘Copyright, digital rights management technology and consumer protection’ that was held at the UC Berkeley in March 2007. The main goal of the workshop was to confront a consumer law approach with the more commonly discussed approach of internalising user-related questions directly into copyright law. To this end, a selected group of European and US experts in both fields, copyright law and consumer law, were invited. The participants were then asked to share their thoughts and views from the different fields of law with regard to a number of main statements given by the organisers. The transatlantic perspective further added to the discussion. The main purpose of this report is to point to a number of issues that, according to the workshop participants, should be taken into account in future discussions concerning the legal position of the iConsumer. This report summarises the discussion along the three statements that the organisers asked participants to consider. The report gives some background information for each of the statements, to then describe the main arguments made during the workshop, to the extent that this discussion has not already been internalised in the papers that are part of this special JCP issue.

Vendor bidding on online auctions

This article examines the legal protection of consumers from vendor bidding on New Zealand online auctions sites. The current lack of legal control over online vendor bidding is contrasted with the more restrictive legal position taken in respect of vendor bidding in traditional auctions. The article argues that online vendor bidding is misleading in nature and harmful to consumers. It argues that the law is justified in intervening in order to prevent or discourage the practice. Suggestions are made for a multilayered legal approach to the problem.