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online expectations & responsibilities

This page considers online consumer expectations, responsibilities and responses such as education.

It covers -

subsection heading icon     introduction

The preceding pages of this guide have suggested that

  • simplistic characterisations of 'the consumer' are inappropriate, as consumers have varying degrees of sophistication, different expectations and differing market power or recourse to remedies when disagreements arise
  • regulatory responses vary in principle, encompassing regimes that are strongly laissez-faire, that make special provision for intervention in sectors such as financial services or health or have a stronger emphasis on systemic protection for consumers in B2C markets
  • regulatory responses vary in practice, with some government and industry self-regulatory bodies lacking the will or the resources to consistently implement particular policies and give effect to statements of principle
  • online activity poses particular challenges, including questions about consumer consent (is 'clickwrap' meaningful when the legal boilerplate is presented in user-hostile prose in the smallest of fonts?), uncertainty about jurisdiction (do I have to ship my broken toaster to another continent?) and fairness (can a click-wrap contract allow a vendor to escape consumer protection measures in intellectual property law?)
  • online activity presents particular opportunities, including scope for rapid low-cost delivery of advisory information by regulators and consumer advocacy groups or for feedback by one consumer to another through rating of public/private sector organisations

subsection heading icon     rules of the road, but which road?

Two interrelated questions facing online consumers are -

  • what are the 'rules of the road' for their activity?
  • are they in a position to seek redress under (or even against) those rules?

Those questions involve consideration of governance and business practice in a global networked economy.

As following paragraphs indicate, engaging in transactions with some sites or using facilities such as webmail or eBay involves acceptance of another jurisdiction's legislation or the waiving (consistent with rules in the user's jurisdiction) of some rights.

It may also specify that litigation or mediation must take place in particular fora - typically a court or mediation service that is readily available to the site/service operator. In practice the cost of action in a court located in another hemisphere may preclude enforcement of rights by some individuals and SMEs.

subsection heading icon     consumer consent?

A key issue is the question of consumer consent.

Some sites invoke consent by requiring acceptance of terms & conditions that are located in an obscure part of the site, can not be readily identified by a casual visitor or are presented in a format that significantly inhibits user understanding.

In our Design and Accessibility guides we have for example noted concerns about disclaimers or agreements that are presented in

  • small type
  • solely in upper case characters
  • in pop-up (or pop-under) boxes or in small scroll-down frames that deter both reading and printing

The impenetrability of much online legal boilerplate has been questioned. However, it might provoke questions about the offline variety - particularly the finely-printed documents that most consumers apparently throw away with the styrofoam packing or their monthly statement from a financial services provider.

Some sites, perhaps more cynically, trade on the ignorance, impatience or other characteristics of their visitors.

The real price for access to some music sharing sites, for example, is monitoring by spyware that allows an affiliate of the site to track the tastes and travels of the consumer. Few 17-somethings appear to comprehend - or perhaps merely notice - the terms & conditions on those sites and thus be aware that they tacitly consented to give up their privacy when they joined the crusade against the evil RIAA.

One AOL notice (in apparent conflict with other AOL terms of service notices) advises that

In addition, by posting Content on an AIM Product, you grant AOL, its parent, affiliates, subsidiaries, assigns, agents and licensees the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt and promote this Content in any medium. You waive any right to privacy. You waive any right to inspect or approve uses of the Content or to be compensated for any such uses

Orkut similarly indicates that

By submitting, posting or displaying any Materials on or through the service, you automatically grant to us a worldwide, non-exclusive, sublicenseable, transferable, royalty-free, perpetual, irrevocable right to copy, distribute, create derivative works of, publicly perform and display such Materials.

subsection heading icon     education and responsibility

Government and industry measures for online consumer education have been confused and uneven, reflecting the priorities of different (often competing) agencies and the deregulatory zeitgeist.

In Australia for example the terrain has been marked by

  • release of national documents such as NOIE's 'phantom menace' leaflet (offering reassurance about online credit card fraud),
  • communiques about isolated trade practices action from bodies such as the Australian Competition & Consumer Commission (some state governments, such as Queensland, appear to have been significantly more active that others in alerting consumers to online scams)
  • an uncertainty about day to day implementation of government statements of principle and a tendency to pass the buck to regulatory choke points such as ISPs (often with little apparent recognition of costs or technical impediments) or to rely on production of glossy leaflets rather than enforcement

That is consistent with the lack of awareness among some consumers, reflecting perceptions that they have no power (or conversely no responsibility) and that in the 'new economy' -

  • content is free
  • markets are uniquely without cost (one of the myths explored here)
  • enforcement of offline restrictions is impractical
  • enforcement of offline restrictions is indeed unethical
  • consumers have a right, if not an obligation, to reshape traditional relationships in their favour

Many of the messages on the Australian broadband forum Whirlpool (aka whinge-pool), for example, appears to be based on perceptions that it is possible for ISPs to deliver unlimited content for only a dollar or so a month and that the market is not driven by the two dominant telcos.

Notions of a coherent civil society are predicated on acceptance of rules, personal responsibility and appreciation of economic or social structures. Much of the hype about cyberspace has inhibited that acceptance and there is a task for education beyond production of leaflets about content filters or credit card payments.

There is also value in consumer activism in responding to bad practice by guardians of personal information (for example recurrent unauthorised and large-scale release of data by Choicepoint, LexisNexis and other data services) and by retailers.

subsection heading icon     finding help

The deregulatory (or co-regulatory) zeitgeist in many nations over the past two decades has seen an emphasis on user self-help. Government (and to a lesser extent NGO) agencies will supply tools but there is an expectation that consumers in many instances will have done the homework, made informed decisions and be prepared to independently pursue redress through small claims courts or other venues

Many regulatory agencies provide information in online and print formats about misleading and deceptive practices. One of the most comprehensive guides for Australian consumers remains The Little Black Book of Scams from the Ministerial Council on Consumer Affairs.

In Australia the ACCC site offers advice regarding pyramid selling schemes, business opportunity schemes, and fraudulent prizes and lotteries. Those prepared to persevere with navigation will find examples of popular deceptive practices and the legal penalties applying to those who run or participate in such activities. Other federal and state/territory government agencies in Australia have produced briefs, pamphlets or fact sheets with information for consumers about online retailing, taxation, privacy, spam, stranger danger and other issues.

Consumer groups, such as the Australian Consumers Association, also provide an invaluable source of trusted information for consumers although many are focussed on tangibles - eg product testing - rather than services and necessarily concentrate on behaviour/misbehaviour in their particular jurisdiction.

An emerging question is the extent to which such organisations can - and should - provide a wider range of information online.

One response to the emphasis on self help has been suggestions that educational curricula should emphasise online
lifeskills training. That training would, for example, cover basic information evaluation (publication online does not necessarily mean true) and insights about identifying and handling -

  • spam (eg do not respond to those very generous offers to 'unsubscribe')
  • spoof email (message address details are readily forged)
  • legal fine print
  • spyware
  • chatrooms
  • dating services and other social software services
  • online recruitment services

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version of March 2005
© Bruce Arnold