The Development of Consumer Protection Laws in Tanzania for Electronic Consumer Contracts

Transcription

1 The Development of Consumer Protection Laws in Tanzania for Electronic Consumer Contracts A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy (PhD) By Theodora Mwenegoha Faculty of Law, Bond University 2015

2 Thesis Abstract The advancement of technology and the development of electronic commerce have affected many fields of law, among them, consumer protection. Whereas the field of consumer protection has existed for many years, electronic commerce has made it necessary to rethink the available measures so as to fit with the current needs of consumer protection in the electronic world. Electronic commerce has raised a new dimension of consumers known as electronic consumers who can trade globally and across borders, and whose characteristics and nature have changed. Electronic consumers face many opportunities but also new risks and danger. They face new trends and practices which did not exist before. Consequently, the available laws addressing offline consumers inadequately address these new issues and hence are insufficient given the new characteristics and features emerging in electronic commerce and online transactions. There is clearly a need to examine current consumer protection measures to ensure they address the specific concerns that electronic consumers face when transacting electronically. This is the case in Tanzania. Some jurisdictions and international communities have already realised the need to review electronic consumer protection and have come up with measures addressing issues concerning electronic consumers; however, some countries such as Tanzania have failed to undertake sufficient initiatives to address these concerns. Moreover, the available measures addressing electronic consumers from international and other jurisdictions may not fit with the situation in Tanzania or address the specific concerns of Tanzania consumers due to their unique issues. There is a need, therefore, to develop laws which address the specific practices and concerns of Tanzanian electronic consumers. This thesis intends to highlight the development of electronic commerce in Tanzania and its effect on both local and cross border electronic consumers. This thesis will highlight the unique model of electronic commerce practices present in Tanzania which reflects the social, economic and cultural practices of its people; in particular, the distinctive integration of electronic commerce and mobile commerce, and by so doing establishing a distinctive paradigm of electronic market unique to Tanzania. i

3 The study will also point out the changing roles of consumers especially when they engage through social media and social networks, the challenges that arise in such media, and the new position and role of small and medium enterprises given the advancement of electronic commerce. The lack of protection and inadequacy of the laws will be highlighted. There are uncertainties and gaps in applying existing consumer protection laws and principles that were developed for offline transactions to new challenges raised by online transactions, transactions in social networks and media. Those which are not addressed by existing laws will also be highlighted. This thesis will analyse a selection of the available measures in protecting electronic consumers at a global, regional and local jurisdictional level. They will be analysed as to how well they address Tanzanian electronic consumer concerns and how they may fit within the Tanzanian scenario. Recommendations will be made as to the appropriate measures that Tanzania should take in promoting and protecting the welfare of electronic commerce consumers in the country. ii

4 CERTIFICATE This thesis is submitted to Bond University in fulfilment of the requirements for the Doctor of Philosophy degree. This thesis represents my own work and contains no material which has been previously submitted for a degree or diploma at this University or any other institution, except where due acknowledgement is made.. Theodora Mwenegoha iii

5 TABLE OF CONTENTS 1. ONLINE CONSUMER PROTECTION IN TANZANIA: CONCEPTUAL AND LEGAL FRAMEWORK Statement of the Problem Objectives, Significance and Research Questions Research objectives Significance of the study Research questions Research Scope Contribution of the Research Originality of the Research Research Methodology Literature Review Lack of legal framework to address the distinctive paradigm of e- commerce present in Tanzania Lack of recognition of the major role players in the field of e-commerce The concerns of adopting international measures for Tanzania initiatives Lack of sufficient measures for e-consumer dispute resolutions CONSUMER PROTECTION IN THE NEW ERA Introduction and Context to the Problem Introduction The jungle and the matrix world of Tanzania As the dawn darkens Background to the problem Key Concepts of the Research Protection In The New Era: A New Consumer Paradigm Why protect e-consumers Who should be protected? Towards E-consumer Protection Initiatives: Finding The Right Path iv

6 3. PROBLEMS ARISING IN ONLINE CONSUMER TRANSACTIONS The Nature of Online Transactions in Tanzania Problems Arising In The Formation Of Online Consumer Transactions Business to consumer (B2C) online transactions Consumer to consumer (C2C) online transactions Problems arising during the performance phase of online consumer transactions Business to consumer (B2C) online transactions Diverging issues in consumer to consumer (c2c) online transactions Problems Arising In Payments For Online Consumer Transactions Business to consumer (B2C) online transactions Diverging issues in consumer to consumer (C2C) online transactions Problems Arising Post Formation in Electronic Consumer Transactions Business to consumer (B2C) online transactions Contextual differences in consumer to consumer (C2C) online transactions PROBLEMS ARISING IN MOBILE COMMERCE CONSUMER TRANSACTIONS Introduction Concerning issues Security Unwarranted and high charges Poor services Spam Information disclosure AVAILABLE LEGAL INITIATIVES ADDRESSING ONLINE CONSUMER TRANSACTIONS IN TANZANIA Initiatives Addressing Online Consumer Transactions Laws protecting electronic consumers in Tanzania Provisions Regulating Problems arising in the Formation of Online Consumer Transactions v

7 5.2.1 Business to consumer online transactions Provisions Regulating Consumer To Consumer Online Transactions Introduction Problems in online auctions Problems in online social networks sales Problems Arising During the Performance Phase of Online Consumer Transactions Business to consumer online transactions Problems arising in Payments for Online consumer transactions Business to consumer online transactions INITIATIVES FROM OTHER JURISDICTIONS AND LESSONS TO BE DRAWN Initiatives Addressing Problems in Formation of Electronic Consumer Transactions Business to consumer (B2C) online transactions Initiatives Addressing Problems During Performance of Electronic Consumer Transactions Business to consumer (B2C) online transactions Initiatives Addressing Problems arising in Payments in Online consumer transactions Business to consumer (B2C) online transactions Initiatives Addressing Dispute Resolution for Electronic Consumer Transactions Business to consumer (B2C) online transactions Consumer to consumer (C2C) online transactions RECOMMENDATIONS AND CONCLUSION CONCLUSION Introduction The study Conclusion RECOMMENDATIONS General recommendations Specific recommendations vi

8 7.3 CLOSING REMARKS BIBLIOGRAPHY vii

9 List of Abbreviations and Acronyms ACCC - Australian Competition and Consumer Commission ADR - Alternative Dispute Resolution APEC - Asian Pacific Economic Cooperation ASEAN - Association of South East Asian Nations ASIC - Australian Securities and Investments Commission ATMs - Automated Teller Machines AU - African Union B2B - Business to Business B2C - Business to Consumer B2G - Business to Government BOT- Bank of Tanzania C2C - Consumer to Consumer CAP - Chapter CCP - OECD Committee on Consumer Policy CFI - European Court of First Instance CGM - Computer Generated Media viii

10 CISG - UN Convention on Contracts for the International Sale of Goods CRDB - Community Rural Development Bank EAC - East African Community ECA - Economic Commission for Africa ECOWAS - Economic Community of West African States EDI - Electronic Data Interchange EFTPOS - Electronic Funds Transfer at Points of Sale EPOCA - Electronic and Postal Communications Act EU - European Union EULA - End User License Agreement EWURA - Energy and Waters Utilities Regulatory Authority FCC - Fair Competition Commission FTC - Fair Competition Tribunal GDP - Gross Domestic Product ICPEN - International Consumer Protection and Enforcement Network ICT - Information Communication Technology ICT4D - Information and Communication Technology for Development ix

11 IMF - International Monetary Fund ISPs - Internet Service Providers ITU - International Telecommunication Union JALO - Judicature and Application of Laws Ordinance NCAC - National Consumer Advocacy Council NCC - National Consumer Council NPP - National Privacy Principles NSSF - National Social Security Funds NTP - National Telecommunication Policy ODR - Online Dispute Resolution OECD - Organisation for Economic Co-operation and Development OFT - Australian Office of Fair Trading R.E - Revised Edition SADC - Southern Africa Development Community SET - Secure Electronic Transaction Protocol SMEs - Small and Medium-sized Enterprises SUMATRA - Surface and Marine Transport Regulatory Authority x

12 TBA - Tanzania Bankers Association TCAA - Tanzania Civil Aviation Authority TCCIA - Tanzania Chamber Of Commerce, Industry and Agriculture TCRA Tanzania Communications Regulatory Authority TIN - Tax Identification Number TTMS - Telecommunication Traffic Monitoring System UCITA - Uniform Computer Information Transactions Act UETA - United State Uniform Electronic Transactions Act UN - United Nations UNCITRAL - United Nations Commission on International Trade Law UNCTAD - United Nations Conference on Trade and Development UNDP - United Nations Development Programme US FTC - US Federal Trade Commission WGEC - Working Group on Electronic Commerce WTO - World Trade Organisation WWW- World Wide Web xi

13 List of Figures Figure 2.1 The Impact of E-commerce Figure 2.2 Map of Tanzania Figure 2.3 World Internet Usage Growth From Figure 2.4 Categories of SMEs in Tanzania Figure 2.5 Various Descriptive Definitions of Electronic Commerce Figure 2.6 UNCTAD Horizontal Description of Electronic Commerce Figure 2.7 UNCTAD Vertical Description of Electronic Commerce Figure 2.8 The Definition of EDI Figure 3.1 Internet Usage and Population Growth in Tanzania Figure 3.2 African Facebook Users in Figure 3.3 Map of Financial Access in Tanzania Figure 3.4 Mobile Subscribers and Internet Users in Africa, Figure 3.5 Mobile Subscribers in Africa, Figure 3.6 Mobile Phone Growth in Africa, Figure 3.7 A List of Malicious IP Addresses Allocated in Tanzania on 25 September Figure 3.8 Operating Features of C2C Electronic Commerce in Tanzania Figure 3.9 Domestic Posted Items Through Tanzania Postal Corporation, Figure 4.1 The Widespread Use of Mobile Money in Tanzania Figure 4.2 Mobile Phone Penetration in Rural Areas Figure 4.3 Mobile Phone Penetration in Rural Tanzania Figure 4.4 The Use of Mobile Payments in Tanzania Figure 4.5 M-Pesa Tanzania Transaction Fees (USD) Figure 4.6 Mobile Phone and Mobile Money Usage Statistics Among the Tanzanian Population Figure 6.1 Structure of Discussion on Available Initiatives Addressing E- Consumer Concerns xii