＂WeChat Shopping＂ is not protected by consumer law？ Relevant parties responded.
Core reading
A few days ago, the statement that "WeChat shopping is not protected by the Consumer Protection Law" triggered a heated discussion. Online shopping has increasingly become an important form of consumption, and how to protect consumers’ rights and interests has also become an associated problem. Does WeChat Shopping Apply Consumer Law? What should we pay attention to in online shopping rights protection?
In the recently released Information Analysis Report of the Command Center of Gansu Provincial Administration for Industry and Commerce for the First Half of 2016 (hereinafter referred to as the Report), there is a discussion on the applicable laws of WeChat shopping: "WeChat shopping is not protected by consumer law, and consumers are advised to deal with it through judicial channels." When this statement came out, it caused a heated discussion.
The person in charge of the 12315 Command Center of Gansu Provincial Administration for Industry and Commerce responded during the interview that the Report is a situation analysis based on the complaints in the first half of the year, mainly aimed at the behavior of "private transactions" in WeChat "friends circle", "but the wording and expression are incomplete and imprecise. The applicable laws of WeChat shopping should be treated differently. Now many enterprises or individual industrial and commercial households with legal procedures such as business licenses also carry out sales activities through WeChat, which is within the scope of consumer law adjustment. "
Consumer law does not protect private transactions in WeChat friends circle.
"To judge whether WeChat shopping is applicable to consumer law, we should conduct classified discussions." The relevant person in charge of the Regulations Department of Gansu Provincial Administration for Industry and Commerce said. Wechat shopping behaviors applicable to the adjustment of consumer law mainly include: first, legally qualified market entities conduct transactions through WeChat; Second, transactions conducted on micro-stores (third-party trading platforms) that have obtained legal qualifications; Third, promote products and conduct transactions through WeChat WeChat official account. WeChat official account is not facing a specific target, and WeChat users choose goods and services according to their own needs, so WeChat official account’s marketing behavior should fall within the scope of consumer law adjustment.
"The transaction conducted by private letter through the circle of friends, the object of the transaction is a specific object, which belongs to the private transaction between individuals. It is difficult to adjust and regulate by the elimination method, and it should belong to the scope of legal norms such as the contract law and the general principles of civil law." The person in charge explained.
It is also pointed out that after purchasing goods through private transactions, consumers can claim compensation from producers (that is, product manufacturers) according to the law of elimination if personal or property damage is caused by product defects.
Wechat shopping is not an uncontrollable vacuum.
The "transaction between private individuals" in WeChat does not apply the elimination method, but it does not mean that consumers have no basis for safeguarding rights, nor does it mean that the industrial and commercial departments can not perform their supervisory duties. The person in charge of the Network Supervision Department of Gansu Provincial Administration for Industry and Commerce said that we should encourage and welcome WeChat shopping, a constantly developing emerging format, and believe that relevant laws and regulations will be introduced to regulate and supervise it in the future.
Lawyer Gao Bingming of Gansu Zhengding Law Firm believes that WeChat shopping is not an uncontrollable vacuum, and disputes can be solved by applying contract law and other laws. If businesses are suspected of violating laws and crimes, they should be further investigated for their responsibilities. There have been cases in which Wechat business was sentenced for selling fake and shoddy goods.
However, it is also true that it is difficult for consumers to defend their rights in the event of disputes between private individuals through WeChat. The "Report" pointed out that in the first half of this year, there were 2,046 Internet sales service consultations in Gansu Province, up by 100.04% year-on-year. Among them, WeChat online shopping disputes grew rapidly, and the main problems were: the quality of the goods sold was not up to standard; Merchants do not deliver goods after WeChat payment; After-sales service is not guaranteed.
"Unlike online shopping that needs to be conducted through a formal online trading platform, individuals only need to register a WeChat account to sell goods or services through WeChat, and they can open a business without real-name registration system and handling relevant documents. Consumers cannot accurately know the seller’s information." The person in charge of the 12315 Command Center said that as a social tool, WeChat is closed and highly private, which makes supervision more difficult.
"Because most consumers can’t determine the seller’s real information and can’t provide corresponding consumption vouchers, complaints against Wechat business are often unacceptable, and the legitimate rights and interests of consumers can’t be effectively protected." The relevant person in charge of Gansu Consumers Association told the reporter that the WeChat shopping disputes that have been successfully mediated at present are basically sellers with physical shops online.
Wechat will restrict the access of rebate merchants
What management responsibilities should the operators who provide mobile internet channel access services for Wechat business bear?
"The common sales behaviors and transactions on WeChat are actually not completed on the WeChat platform itself, but the expansion of various applications through WeChat." The head of Tencent’s WeChat team said in an interview that users have the right to choose their own WeChat usage methods, but the premise is legal and compliant; For violations of relevant laws and WeChat user agreements, WeChat will resolutely crack down on joint rights holders. If users encounter infringement in the process of using WeChat, they can report it through the reporting portal of WeChat.
The WeChat team also said that it will continue to crack down on fraudulent accounts. From December 13, 2015 to June 11 this year, more than 100,000 titles have been sealed. "We will strictly restrict the access of rebate merchants and even refuse to use the platform interface."
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The person in charge of the relevant departments of the State Administration for Industry and Commerce said
Enterprises use WeChat marketing to apply elimination method.
Yang Hongcan, director of the Consumer Protection Bureau of the State Administration for Industry and Commerce, said in an interview with the media that it is difficult to protect consumers’ rights and interests according to the terms of the Consumer Law. Consumer law adjusts the relationship between rights and obligations between consumers and operators. However, WeChat purchasing is often carried out in the name of "friends and acquaintances help", which belongs to private entrustment, and many of them are part-time amateurs. In this case, it is difficult to identify the purchaser as the operator, and it is more likely to be regarded as an ordinary civil dispute after a dispute arises, and it is also difficult to apply the provisions of consumer law. If the enterprise conducts marketing through WeChat and conducts purchasing business, the provisions of consumer law shall apply.
Shenyang consumers’ association zhizhao
Online shopping should pay attention to retaining evidence such as screenshots.
Wang Jinwen, secretary-general of Shenyang Consumers Association, suggested that consumers can take the following steps to safeguard their legitimate rights and interests when they encounter problems when shopping in enterprise micro-stores:
The first is to collect and retain evidence. Take photos of fake and shoddy products from all angles with your mobile phone, and take screenshots of the chat record with the seller for use when complaining. The second is to contact the seller for return. The third is to contact the third-party trading platform (micro-store) for compensation. If the online trading platform knows or should know that the seller infringes on the legitimate rights and interests of the buyer and fails to take measures, or cannot provide real information of the merchant, it may claim compensation from the trading platform. The fourth is to complain to the industrial and commercial department or the Consumers Association where the micro store is located. Fifth, those who are suspected of committing crimes report to the public security organs for filing. Sixth, those who cause personal injury to consumers have the right to claim compensation from sellers and producers.
Lawyer analysis
Natural persons may also be identified as "operators"
Yang Naichao, a lawyer of Beijing Lanpeng Law Firm, believes that the consumer law does not clearly define the operator, but generally refers to the economic entity that has obtained the business license. However, in February this year, the State Administration for Industry and Commerce issued the "Guidelines for Seven Days’ Unjustified Return of Goods Purchased on the Internet" (draft for comments), which defined online sellers as "legal persons, other economic organizations, individual industrial and commercial households or natural persons who sell goods through the Internet", and classified "natural persons" into the category of e-commerce operators, indicating that the definition of "operators" may still change in the future.
"According to the provisions of the Consumer Law, if the online trading platform provider cannot provide the real name, address and effective contact information of the seller or service provider, consumers can also claim compensation from the online trading platform provider. However, WeChat does not belong to the online shopping platform, and it is difficult for consumers to claim compensation for the WeChat platform. " Gao Bingming, a lawyer of Gansu Zhengding Law Firm, said.
(Interviewed by our reporters Lin Lizhen, Liu Hongchao, Chai Qiushi and Yang Xu)