An Assessment of the Adequacy of Online Consumers’ Protection Laws: Understanding the Realities and Mirage

Abstract

Globally, electronic commercial transactions have been rising at a rapid rate. In the context of South Africa, this upward trend is associated with the high rates of mobile technology penetration evinced by using mobile devices like laptops, cell phones, smartphones, tablets, and other emerging electronic tools. Given that the laws and policy framework regulating e-commerce transactions is relatively new and at a developmental stage in the country, there are gaps regarding the regulation of commercial transactions as they relate to consumer protection in the online environment. Some matters have arisen and still emerging because of the outpacing of technological developments with the existing commercial laws. This disparity in technological innovations and the subsisting legal framework tends to affect the modern consumer who prefers to utilise technology to access goods and services and conclude contracts electronically. This study explored the challenges in online contract formation and the extent to which consumers are protected in the e-commerce environment. A qualitative research approach was adopted in this study, by utilising a desktop review of the existing policies and legal instruments on electronic transactions, namely, case law, international instruments, and national laws (the Electronic Communications and Transactions Act 24 of 2002). The study critically examined the mechanisms in the current legal and regulatory framework that facilitate the conclusion of electronic contracts. It also analysed the current international and national legal framework to appraise the adequacy of the subsisting legislation in protecting the rights of consumers who engage in online transactions. Findings from the study revealed that despite the mechanisms put in place by the current South African legal framework, more still needs to be done to ensure legal certainty to consumers, who are the weaker party in e-commerce transactions. The study recommended strengthening consumer protection in the e-commerce environment.