Online shopping and the Law - Part I

When one thinks about shopping, images of racks and racks of clothing and rows and rows of shoes appear in our minds eye. Choice. It’s all about having lots of choice.

It’s about thinking of the cleanest, freshest ingredients neatly stacked in an easy to view location. Where checkouts are as easy as pie and unpacking groceries is the only thing, you have to worry about. It’s all about convenience. It’s all about having everything at your fingertips.

And these two examples don’t sound anything like shopping in the real world where everything is manic, where shops are busy, where the only sizes left on the shelf are XXS and the only tomato you can find is slightly green. It’s dealing with rude salespeople and impatient cashiers. It’s standing in queues. It’s hot. In fact, it’s an unrivalled hassle.

Shopping in the real-world sucks.

But online…….

Online there’s choice, there’s sizes, there’s “exclusive to online” offers, there’s ripe tomatoes and everything is easy as “Add to cart”. Simple and carefree. The only thing you need to worry about is unpacking the neatly delivered bags afterwards.

It’s what shopping should be like. At least that’s what the millions of online shoppers around the world seem to think.

And when we say millions, we mean millions.  

In fact, according to Optinmonster –

“In 2022, there were 268 million online shoppers in the United States. This number is projected to increase to almost 285 million online shoppers in 2025.

According to recent estimates, global e-commerce sales will reach $58.74 Trillion by 2028. This represents a significant increase from previous years and indicates the growing popularity of online shopping.

Additionally, online retail sales are projected to grow at a compound annual growth rate (CAGR) of 14.6% from 2021 to 2028”.

On average - across all devices, shoppers between the ages of 16 – 64 are online for 6 hours and 58 minutes per day - with South African’s in particular spending 10 hours and 46 minutes online per day - (TRTWorld). More than 263 million American consumers shop online (that’s 80% of the American population) (Fit SmallBusiness).

It would seem that online shopping is the name of this stress-and hassle-free game.

Because – quite frankly - at the pace the world is moving, we could all use a little hassle-free retail therapy.

But is that the real focus of the article?

Sure, we can all collectively admit that online shopping is easy, hassle free and stress free. In fact, many of us probably shop late at night while trying to fall asleep.

In this regard Each Night set out as follows –

“Online shopping after bedtime was a phenomenon in which seemingly everyone participated – men, women, millennials, and even baby boomers all reported shopping online after hours. In fact, less than 30% said they had never made an online purchase past their bedtime.

Millennials and women most often sacrificed sleep for shopping, although the trade-off of sleep for shopping was common across all genders and generations. Nearly 74% of women had shopped online after hours, while 69% of men admitted the same. The generational split was larger, with almost 75% of millennials shopping online after bedtime. Younger respondents may have been more likely to make online purchases, but 58% of baby boomers shopped online after bedtime as well”.

And that’s a lot of late-night shopping.

But while we shop online, has anyone stopped to wonder what laws protect us should something go wrong with a product we have purchased? Is there any right of recourse? Is there anything that cannot be done while selling online?

Surely with the number of sales taking place and the number of shoppers that are currently online, rights of recourse should be top of mind.We would think….

What does the law have to say about online shopping?

In this world of digitisation, where we have already entered the Fourth Industrial Revolution, the move to online shopping (or e-commerce)has been staggering. Consumers (as we have set out in length above) have moved towards the world of convenience and all it entails. And businesses have had to“hop to it” in order to keep up with demand.

Even small businesses that wouldn’t have been able to compete with the bigger name brands advertising budgets and reach are able to set up shop online and sell their wares to all those who have come across their website or their page on Facebook, Instagram and Tik-Tok.

The playing field has been well and truly levelled out and smaller businesses are able to tout themselves as bespoke and small batch – not fast fashion or food mass produced and filled with preservatives and hormones. And that appeals to people all over the world.

And with this emergence of small brands and their small batches, there has been a change in how businesses market themselves. Perhaps this is the fault of the internet and social media where reaching millions of potential consumers is open to small and big businesses alike.

Social media – when used correctly – is like supercharging a brands reach. With the right hashtags your products can reach people all over the world and that has the potential of skyrocketing sales. Marketing made easy.

But in this vast ether of opportunity, what is keeping the online shopping sky from falling? What makes businesses stick to the words they tout online? In South Africa we have a number of laws and regulations that apply to the online marketplace, and they include –

The Electronic Communications and Transactions Act 25 of 2002 (ECTA)  

ECTA provides for the facilitation and regulation ofelectronic communications and transactions. At Section2(1)(a)-(r) of ECTA, the object is to promote legal certainty and confidence inelectronic transactions, to ensure that there is a safe, secure, and effectiveenvironment to conduct and use electronic transactions, and to promote thedevelopment of electronic transaction services which are responsive to theneeds of users and consumers.

“ECTA applies to all electronic transactions of either a commercial or non-commercial nature and includes the provision of information and e-government services. It also includes all data messages generated, sent, received, or stored by electronic means and includes voice, where the voice is used in an automated transaction; and a stored record and would therefore include an SMS, WhatsApp text, and voice recording. In addition, and since the message function on social media allows users to send and receive messages, it could be considered to be a data message similar to an email or SMS. Advertising or marketing a business on social media platforms could arguably constitute an electronic transaction”.

Therefore, all advertising in the electronic broadcast media is subject to ECTA (a notion supported in the matter of  Advertising Regulatory Board NPC v Bliss Brands (Pty) Ltd 2022 ZASCA 51 3).The part of ECTA that is particularly relevant for the purposes of this discussion is Chapter VII. Chapter VII introduces a myriad of "important protective measures for online consumers over and above those that are available for offline consumers".

Section 43 of ECTA sets out the information that a suppliermust provide the consumer when engaging in an electronic transaction. In otherwords, whenever a supplier offers goods or services for sale, hire, or exchangeto a consumer in the context of an electronic transaction, there is certaininformation that must be available for the consumer on the website where thegoods or services are being offered or advertised. Thisinformation includes, inter alia, the details of the supplier such as -

Ø the full name;

Ø legal status;

Ø physical address;

Ø telephone number; and

Ø email address.

Most importantly, there should be:

(h) ...a sufficient description of the main characteristics of the goods or services offered by that supplier to enable a consumer to make an informed decision on the proposed electronic transaction;

(i) the full price of the goods or services, including transport costs, taxes, and any other fees or costs;

(j) the manner of payment;

(k) any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored, and reproduced electronically by consumers;

(l) the time within which the goods will be dispatched or delivered or within which the services will be rendered;

(m) the manner and period within which consumers can access and maintain a full record of the transaction;

(n) the return, exchange, and refund policy of that supplier..”

It’s important that the information and details presented in the ad are accurate and truthful since online consumers don’t’ have the opportunity to physically inspect the goods they are ordering.

Misleading or deceptive advertising is a big no-no as makingan informed decision about the purchase is done away with. Onlinedeceptive or misleading representations about a product and/or service is thusstrictly prohibited.

(Sources used and to whom we owe thanks: Scielo)

We will be looking at some more Acts that safeguard online shoppers in our next article. Look out for it!

In the meantime, if you have any questions on the information we have set out above or have a personal issue which you want to discuss with us, please don’t hesitate to contact us at NVDB Attorneys.

We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart!