Digitale forbrukerrettigheter og EU

by

Forbrukerrådets holdt i går et innlegg i Europaparlamentets høring om EUs forbrukeragenda for 2013-2020.  Det som i utgangspunktet var ment å være et 7-8 minutters innlegg, måtte av tidshensyn kuttes til 3 minutter. I tillegg fikk vi beskjed om å  snakke sakte, slik at oversetterne klarte å holde følge. På tross av at vi brukte tiden til å snakke om behovet for klare og gode rettigheter for digitale forbrukere, var det ikke tid til alt i den planlagte presentasjonen. Her kan du lese hele innlegget:

Good morning ladies and gentlemen, and thank you for inviting me to this hearing to give the Norwegian Consumer Councils input to the Consumer agenda. In my daily work as the head of section, digital services, within the Norwegian Consumer Council, I deal largely with questions  relating to consumer rights in the digital landscape. I will therefor concentrate on a few digital topics, and as the digital arena continues to pose challenges to both consumers and regulating authorities, i hope to come up with some relevant suggestions for possible legislative change and other solutions that i can see.

My starting point is to see the consumer as a market actor, and with this recognize that consumer regulation is a part of a market regulation: a consumer is no more solely an individual needing protection, but also the end point,  the buyer, representing the demand side in a chain. At the same time, the term consumer is a moving target, sometimes consumer, sometimes a user and sometimes a citizen, all within the use of one service. However, all roles have to be taken into account when approaching any regulatory initiative.The study by Europe Economics and University of Amsterdam, which was published at the end of last year, illustrated that the current consumer detriment amounts to 64 bn EUR (Net financial loss: € 29 bn, Value of time lost: € 35 bn).At the same time, there is a strong focus on Europe not yet being able to release the full potential of the digital market, and everybody seems to agree that consumer confidence, and trust in the market are both of paramount importance to reach this common goal.

My starting point is to see the consumer as a market actor, and with this recognize that consumer regulation is a part of a market regulation: a consumer is no more solely an individual needing protection, but also the end point,  the buyer, representing the demand side in a chain. At the same time, the term consumer is a moving target, sometimes consumer, sometimes a user and sometimes a citizen, all within the use of one service. However, all roles have to be taken into account when approaching any regulatory initiative.The study by Europe Economics and University of Amsterdam, which was published at the end of last year, illustrated that the current consumer detriment amounts to 64 bn EUR (Net financial loss: € 29 bn, Value of time lost: € 35 bn).

At the same time, there is a strong focus on Europe not yet being able to release the full potential of the digital market, and everybody seems to agree that consumer confidence, and trust in the market are both of paramount importance to reach this common goal.

So let me give you a few examples on digital consumer challenges:

1. Attention and personal information is the new currency. How do people act under these regimes? To me, it seems like this is an example of an area were consumers need strong protection, due to the fact that they are yet  to grasp the full implications of this business model. To me, the best example, even though a bit tabloid example, has to be groups on Facebook opposing to the data retention directive

2. In the digital landscape, if the consumers can actually access content, its is usually under terms of service or licence agreements unimaginable in a historic or analogue environment. In addition, the consumer face a lack of interoperability, locking users into one service, thus impairing sound competition.

3. Examples: Content on Personal Video Recorders are altered, if not deleted, at the push of the distributors button. Legitimate TV-channels going black during a football game, due to discussions on whos rights it is to broadcast. This is leaving the TV-market one step forward, and two steps back.

4. Lets put some more focus on this two-way communiaction reality, where the duties and responsibilities are set by one part only, and where the consumer lacks insight and possibilities to negotiate neither terms nor the outcome of them. In many ways, a parallel terms and conditions universe has developed on the internet, whereby basic principles are being bypassed, set aside and twisted.

User equipment can be, and is being, crippled, functionality or properties are being seriously altered by service providers, in a way which is not serving the consumer. Challenges in relation to a goods-to-service, internet-of-things context, have not yet been sufficiently discussed, and far from solved.

Example: Last year, the NCC made a complaint on Sony Entertainment Europe to the consumer ombudsman for an update put out by Sony, and aimed at their PS3 gaming console. This update removed important functionality to millions of consoles, all done by a trusted update.

As we expect more and more things to go online, to be smarter, and to converge, these monologist two-way dialogues between gadget and provider needs to be influenced by the consumer in some way.

Consumers expect open offers, on demand, it has to be interactive and targeted, if not, we will switch off.

In the the Digital Agenda, under the paragraph “ Building digital confidence”#: relevant rights are described as being “(…) scattered across various laws and are not always easy to grasp.” That is to say the least!

Today, consumers are relevant in many legal areas new to them, and here are  some examples of this legal “scatteredness”:
Competition regulation: relevant to consumer protection, but doesn’t historically have consumers in the centre

Copyright regulation: relevant to consumer protection, but doesn’t historically have consumers in the centre
Privacy regulation: relevant to consumer protection, but doesn’t historically have consumers in the centre
Consumer regulation: digital content in general outside of scope

In 2006, The NCC did a survey, giving the Ministry of Culture, academics and music industry amongst others, some scenarios, asking if they were legal actions or not. They were perfectly normal situations like: are you allowed to back up your DVDs or transfer movies to your portable player, or use bought music as ringtones. Not one of the experts gave unanimous answers. How then are the consumer expected to know?

For every regulation relevant to consumers, without being consumer regulation, the interest of consumer is not at the centre of attention. And sometimes that is ok. But in sum, the consumer is losing out.

Summing up:

Consumers are being deprived of tools to function in the market in a way we all deem proper and needed
Regulation, when in place, is scattered
Trust and confidence are key factors
Things need to be the way consumers expect them to be
Money is being lost while not acting

While some companies seems to be giving more attention to the consumers as a key market actor, there is  strong need for more consistent regulation, putting the consumer at the center and giving her mandatory rights, responsibilities and all in a way that is clear to her.

What we need is an instrument that addresses the digital legal environment in a holistic way. We have seen many examples of voluntary, self regulatory tools, that leave consumers deprived of both clear, total and modern rules. We would expect efficient regulation, regulation from a legislator that defines consumers both as stakeholders and key players in a quest for one, single market.

The Norwegian Consumer Council sees an adoption of a Directive on digital content as the preferred solution to overcome the current situation of legal uncertainty and unclear rights for consumers.

This solution would also be coherent with the recently adopted Consumer Rights Directive; according to the Recital 19 “the Commission should examine the need for further harmonisation provisions in respect of digital content and submit, if necessary, a legislative proposal for addressing this matter”.

This would also be a natural and resourceful way of following up on the earlier mentioned studies from Europe Economics and University of Amsterdam.

The Digital Content Consumer Directive would:

Be tailored to the specific needs of digital content contracts
Provide for a single definition of digital content to create legal certainty
Establish Specific information requirements tailored to the needs of digital content
Include a list of specific terms to be presumed/deemed unfair
Introduce mandatory consumer rights (back up copies, use across multiple platforms etc)
Clarify the rules on remedies and their application on digital content

If buyers are uncertain, of their contractual partners, or of legal protection or remedies in any marketplace, they will not spend their money there. If we really want secure, confident consumers to do their part in releasing the potential of a single, European Digital Market, we have to start giving consumers reasons to trust.

Thank you!

Stikkord: , ,

Legg igjen en kommentar

Fyll inn i feltene under, eller klikk på et ikon for å logge inn:

WordPress.com-logo

Du kommenterer med bruk av din WordPress.com konto. Logg ut / Endre )

Twitter picture

Du kommenterer med bruk av din Twitter konto. Logg ut / Endre )

Facebookbilde

Du kommenterer med bruk av din Facebook konto. Logg ut / Endre )

Google+ photo

Du kommenterer med bruk av din Google+ konto. Logg ut / Endre )

Kobler til %s


%d bloggers like this: