In the most popular language, China tells consumers that using the Internet should be responsible for every action you take, otherwise it will bring danger to personal privacy, so you should know how to protect yourself and promote good relations with others, but the premise You need to know your legal rights and obligations. The "Guide" warns consumers to know all possible methods to protect their data and communications; to remember every transaction that has been made, and every Internet site that has been visited, because these "electronic traces" can It is used to establish files about who you are and what your interests are without you knowing it. Therefore, as consumers, you should learn to eliminate such traces, learn to hide yourself, and use it under legal permission. PSEUDNUM, make your own personal identity known only to your network service operator; only provide the network service operator with the necessary information in order to achieve the specific purpose you are told, if you find that the data is wrong, you can request the network The service operator must make the necessary corrections; if the data is too much, outdated or no longer needed, you can ask the network service operator to delete it; often understand the information on personal privacy protection and security risks on the Internet, as well as methods to prevent and reduce risks. It can be seen that this principle is different from the legislative starting point for the protection of individual rights in some countries. It emphasizes the consumer ’s self-protection awareness rather than a passive reflection of the infringement, such as filing a lawsuit after the damage to claim compensation. This provision will avoid illegal activities and reduce litigation due to infringement. It can be seen that the protection of the right to privacy must first increase consumers' awareness of self-protection.
Although the current legal protection of e-commerce in China has no written legal provisions, there are some unique insights on legislation to protect consumer personal data: Personal data that is automatically processed should meet quality standards, that is, it should be accurate, timely, and The purpose is relevant and should be obtained through legal means.
The use of personal data should be lawful. National legislation and international treaties in particular insist that personal data should not be used for purposes that are inconsistent with their original purpose of collection, and strict restrictions should be placed on the processing of particularly sensitive data.
The data subject (consumer), that is, the object described by the stored data, should be able to control the application of its data. This right includes several aspects, such as the right to know the existence of the file, the right to know the information contained in the file, the right to correct or delete its information, etc. This is indispensable for any plan to provide better protection for personal data, which is also a major manifestation of the human rights characteristics of personal data protection legislation.
All personal data protection legislation should provide a monitoring mechanism. When data protection is faced with more powerful data users and weaker data subjects, there must be an independent public monitoring mechanism to ensure that each consumer's right to privacy is properly respected.
In contrast to such a minimum standard, we can better understand the rules formulated by the United Nations in 1989: collection and processing in a fair or illegal manner, and should not be used for purposes contrary to the Charter of the United Nations.
* Principle of Accuracy (Principle of Accuracy): The staff responsible for editing or saving personal data files should regularly check the accuracy and relevance of the recorded data to ensure that it is kept as complete and outdated as possible.
The purpose of the file should be specific and legal, and when the personal data file is established, a certain amount of disclosure or notification should be accepted to the person related to it, the purpose is to ensure that: (1) all personal data collected and recorded for a specific purpose All are relevant; (2) Unless the consent of the relevant person is obtained, no data can be used for public purposes for a purpose that is inconsistent with a specific purpose; (3) The retention time of personal data should not exceed the time required to complete a specific purpose .
The data subject has the right to know whether the data information related to it has been processed, has the right to request to access and obtain the information in an understandable manner, and should not have unsuitable delays or be charged unreasonable fees. Legal, unnecessary, and inaccurate entries are modified and deleted. When information is disseminated, it has the right to know the place of dissemination.
The cost of modifying the data should be borne by the person responsible for the file, and should not be added to the data subject.
Principle of Security: Appropriate measures should be taken to protect personal data files from natural hazards (such as sudden loss or damage) and threats (such as unauthorized access, deceptive abuse, or infection by computer viruses).
The legislative protection of the privacy rights of online consumers is a top priority. To build consumer confidence, it is necessary to ensure that the shopping transactions completed through e-commerce are fully secured. We can foresee that the protection of privacy will have an immediate effect after the emergence of the law, but we should also consider that excessively strict legal regulations may affect the innovation spirit of the information industry. At present, the development of the Internet requires the promotion of new technologies. The innovation of the industry is a necessary driving force for development. Therefore, the new privacy protection law is not as strict as possible. The law should leave room for technological development to better promote emerging Industrial progress.
The consumer's right to damage compensation is also called the right of compensation or claim. The prerequisite for the implementation of this right is that the consumer ’s personal or property has suffered certain damages during the online transaction or after using the goods and receiving services. This is a kind of relief right enjoyed when the interests are damaged, and through the exercise of this right, it can bring appropriate compensation to consumers' damages. In the traditional consumption model, if the personal or property rights of the consumer are damaged, the consumer can directly find the party providing the goods and services and request compensation. According to the provisions of Article 119 of the General Principles of the Civil Law on tort law, it is possible to investigate the tort liability of merchants and obtain damages. In online transactions, since consumers and merchants do not meet each other, we must first consider who should seek compensation when the interests of consumers are damaged. At present, consumers ’confidence in the reputation of merchants can only be placed on the transaction. Service third parties, such as CA centers (e-commerce certification bodies) and collection banks. Among them, the CA center can verify the legal identity of the merchant, and the receiving bank can grasp the reputation of the merchant. Once the merchant fails to pay, does not pay on time, or the goods are not true, or the personal quality of the goods brings harm to consumers, the bank can compensate the consumer first, and then the bank can recover losses from the merchant. And reduce the reputation of businesses in the bank. If the merchant repeatedly violates the regulations and causes damage to consumers, the bank can cancel the merchant ’s electronic payment account and notify the CA center of the violation of the merchant, which will be blacklisted by the CA center. If the situation is serious, the merchant ’s With digital certificates, the merchant will lose the right to develop e-commerce. However, according to the recent development of China's e-commerce, the credit card system is still not perfect, so it generally adopts the mail order method, and some large cities in Beijing will have a cash on delivery method. For the issue of compensation to consumers, the content stipulated in Article 49 of China's Consumer Rights Protection Law should still apply: "If an operator commits a fraudulent act in providing goods or services, he shall increase compensation for the losses he has suffered in accordance with the consumer's request The amount of increased compensation is twice the price of the consumer ’s purchase of goods or the cost of receiving services. "This is a punitive clause specifically set up for fraud in the consumer field, which is fully reflected in the network service operators in online consumption. In terms of advertising, if the purchased goods or services do not match the content advertised, then the content of the ad is fraudulent, and consumers have the right to hold the network service operator responsible for the false advertising ,responsible for damage repairs.
3. The Obligations and Responsibilities of Network Service Operators To ensure the healthy development of consumer e-commerce, while giving consumers many rights to protect their legitimate rights and interests, it is also essential to put forward comprehensive requirements for network service operators. In these requirements, not only the technical security and full disclosure must be considered, but also the characteristics of e-commerce, the privacy of consumers should be fully considered, and the after-sales service and advertising should not contain false elements. GBDE has appealed to international organizations and governments of all countries not to place excessive legal restrictions on e-commerce, and to minimize restrictive laws and regulations. It is required to emphasize the establishment of a self-regulatory system dominated by the business community and a legal and regulatory framework that reflects market principles. This mechanism will solve various major policy and regulatory issues without the restrictions of national borders, and gradually establish "voluntary regulations * ( Voluntary Regulations). Therefore, when specifying the obligations and responsibilities of network service operators, they should not be too strict. We must follow a basic principle, that is, to restrict network service operators with a loose legal system, and not allow network service operators to operate. Because of the excessive legal constraints, the halt has made it possible to better promote the development of an emerging industry such as e-commerce.
Basic Obligations of Network Service Operators Because of the special status of network service operators, we cannot impose too strict and excessive restrictions on them, but as an operator, they must have the obligation to fulfill their legal obligations. It is impossible for the law to enumerate all the obligations of the operator. Of course, the operator is obliged to perform the obligations stipulated by other laws and the obligations stipulated by the operator and consumers in accordance with the law. The first legal obligation that network service operators must perform is to abide by various national regulations.
Article 16 of China's "Consumer Rights Protection Law" stipulates: Operators providing goods and services to consumers shall perform their obligations in accordance with the "People's Republic of China Product Quality Law" and other relevant laws and regulations. From this provision, it can be seen that fulfilling the statutory obligations is one of the obligations of the operators themselves. Product quality laws, drug management laws, food hygiene laws, anti-unfair competition laws and other laws that protect the basic interests of consumers When consumers provide goods and services, they must also fulfill these basic obligations. This kind of obligation is a manifestation of the law-abiding obligation of network service operators as legal subjects.
The basic legal obligations require operators to strictly perform their obligations agreed with consumers, that is, if the operators and consumers have an agreement, they should perform their obligations in accordance with the agreement. A contract is a form of rights and obligations. When the contract meets the requirements of the law, its agreement will have corresponding legal consequences, forming rights protected by law and obligations obliged by the law to enforce the operator. As a party to the contract, this obligation to "perform the contract" is directly stipulated by law, and both the operator and the consumer are obliged to perform it.
For each product offered in the online store, the network service operator must make a detailed explanation of its information. It is necessary to provide the price, place of production, producer, use, performance, specifications and other related conditions of each product, and to allow consumers to fully understand the product (including text introduction and picture introduction of the product). Because online consumers do not meet with each other during the shopping process and cannot experience the products themselves, the explanations provided by the online service operators on the product-related information are very important. It determines whether consumers make purchases. This obligation performed by network service operators includes two aspects: First, the relevant information of the commodities required to be provided by them is true and objective. This should be true whether it is the promotion of goods or the introduction of information about goods. Online shopping malls have many products and diverse services, and consumers 'consumption knowledge is always limited. Especially when shopping in a completely autonomous virtual space, consumers are more dependent on the online service operators' goods or services when making shopping choices. Introduction and promotion, and is controlled by the introduction and promotion of different products.
Therefore, unrealistic and non-objective product promotion or product information introduction will cause consumers to make mistaken purchases and the consequences of wrong purchases. This will not only damage the interests of consumers, but also make consumers more vigilant and lose confidence in online stores. From another perspective, providing consumers with real advertising and product information is to satisfy consumers ’right to know. Article 19 of China ’s Consumer Rights Protection Act also clearly states that operators should provide consumers with The true information about the goods or services shall not be misleadingly false. Secondly, the information provided by the network service operator should be sufficient, and the product information should not be understated or exaggerated. For consumers who purchase information-based products (such as consumers buying software), network service operators must programmatically let consumers know about product information before paying, so as to not only satisfy consumers' right to know, but also avoid A series of unnecessary troubles such as returning goods and refunding money.
Commodity quality assurance and after-sales service obligations The quality of commodities is the basis for the smooth development of online shopping malls and the key to whether consumers are willing to conduct online shopping activities. Therefore, network service operators must ensure that the products provided to consumers have quality assurance, and also ensure that the quality conditions they provide to consumers through advertisements and product introductions are consistent with the actual quality conditions of the products. In the consumption mode of the cyber virtual space, consumers can only understand the goods through pictures or text introduction of the goods by the network service operator, it is impossible to personally touch the goods, and it is impossible to find the defects in the goods. Only then can you really get in touch with the product, so consumers simply cannot choose the same product repeatedly. Therefore, it is necessary for the network service operator to fully guarantee the quality of the goods sold, and to ensure that the goods or services meet the requirements of personal and property safety; for defects in products and products or services that may endanger the safety of personal property, should be made to consumers True instructions or clear warnings. If it can be made online, it should be made clear. If it is not made online, it should be made clear to consumers during the physical transaction process. In the online shopping mode, consumers do not meet each other with online service operators during the shopping process, enabling consumers What I really enjoy is the service after the network service operator sells the goods, that is, after-sales service. In traditional civil law, the issue of after-sales service is almost completely agreed by the parties through a contract. In the traditional consumption model, operators use their own advantages to avoid after-sales service. It is so common that “customers are careful and do not change when they go out. "It is widely accepted as a general business principle. In the virtual consumption mode, consumers can only understand the products through the introduction of pictures or texts made by the online service operators to the goods. It is impossible to judge the quality of the goods from the online pictures and introductions, and it is impossible to find defects in the goods. When a product arrives in the hands of a consumer, it is found that the purchased product is defective or inconsistent with the online introduction, or is not satisfied, the network service operator shall have the obligation to continue the service (after-sales service) to the consumer who purchased its product And the after-sales service obligation of this service network service operator is mainly reflected in the implementation of the mandatory obligations stipulated by law.
These obligations are mainly stipulated by the state according to the complexity of certain commodities, that is, the obligation to "repair, replace, and return".
Implementing "repairs, replacements, and returns" for certain commodities is a method by which network service operators undertake quality assurance for the goods or services provided. This shows that although the identity of the network service operator is special, it is also necessary to seriously implement the relevant national regulations on the quality of goods or services to ensure that the goods or services purchased by consumers from the Internet have met the quality requirements set by the state. Article 23 of China's Consumer Rights Protection Law stipulates: Operators shall provide repair, return, replacement or other responsibilities in accordance with national regulations or agreements with consumers, and shall not deliberately delay or unreasonably refuse. For products subject to repair, return, or replacement, if the quality has a problem within a certain period, consumers will have the right to repair, replace, or return the product for free. If the network service operator fails to fulfill this obligation, it shall bear the corresponding civil liability. For products with quality problems, the network service operator shall repair, replace, or return the goods according to the needs of consumers or the requirements of the contract, and the corresponding distribution fees shall also be borne by them.
Network service operators generally use format contracts to enter into purchase agreements with consumers. All the contents of the format contract are concluded by the network service operator. The consumer has only two options, "agree *" or "disagree *", and there is no room for bargaining. Therefore, as a party to a standard contract, consumers are already in a very passive position. If they are forced to accept the "overlord clause" unilaterally formulated by some network service operators in order to relieve themselves of their responsibilities, it will It is extremely unfair and unreasonable, and it is easier to lose money in transactions, resulting in de facto inequality between consumers and network service operators.
Based on the consumer's own interests, the law should strictly stipulate that the network format contract contains content that is unfair, unreasonable, or mitigating to consumers, and exempts network service operators from being liable. This content should be invalid to ensure online consumers The lawful rights and interests are not infringed. Article 24 of China's Consumer Rights Protection Law stipulates: Operators shall not make unfair and unreasonable provisions to consumers in the form of format contracts, notices, declarations, store hall notices, etc., or reduce or exempt them from damaging the legitimate rights and interests of consumers Civil liability that should be assumed. Format contracts, notices, declarations, store hall notices, etc. that contain the contents listed in the preceding paragraph shall be invalid. Consumers are often in a state of weakness, decentralization, and insufficient understanding of relevant knowledge, so the law requires that the party that provides the standard contract must treat ordinary consumers with fairness.
Regarding the responsibilities that network operators should bear in accordance with general business habits, as well as responsibilities involving major consumers ’interests (such as stipulating that they are not liable for transportation delays, etc.), these terms are often small in text and have many contents. Accepting it without looking carefully will infringe on the legitimate rights and interests of consumers. Therefore, network service operators must distinguish the fonts and colors of such exemption clauses, or express them in reminders in prominent places, causing consumption The attention of the authors also makes the relevant exemption clauses truly reflect the meaning of both parties.
Nowadays, most of the online e-mails are free. Many websites pop up a format contract interface before consumers accept the mail service. Consumers can only use the service after clicking. The network service operator claims that clicking indicates consumption Accept the contract. The format contract attached to this free mail method proposes exemption and limitation of liability for network service operators, but it is not exempt. But it does not mean that the network service operator can't propose clauses in the contract to exempt liability and limit liability. The transmission of e-mail involves extremely complicated technical problems. The failure of any network node may cause the transmission of mail to fail. According to the provisions of the contract law, the exemption and limitation of liability clauses should be in accordance with the principle of reasonableness. The so-called reasonable means that the exemption and limitation of liability clauses proposed by network service operators should conform to the basic principles of contract law, such as good faith, fairness principles, and public morals. It must be pointed out that these principles are not rubber clauses and can be interpreted at will.
Responsibility for protecting consumers 'personal data The world is calling for protection of consumers' personal data and privacy rights on the Internet, and the responsibility of network service operators is also increasing. Its specific responsibility focuses on ensuring that consumers' personal information is not misused, not widely used, and not illegally used by third parties.
The "Guidelines for the Protection of Personal Rights in the Collection and Processing of Personal Data on the Information Superhighway" put forward by the EU Ministerial Conference in February 1999 emphasized more on the responsibility of network service operators. Appropriate steps and technologies should be adopted to protect consumers' personal privacy, especially to ensure the uniformity and confidentiality of data, as well as the physical and logical security of the network and network-based services; When you are informed, the use of the Internet may bring harm to your privacy; inform consumers of the legal methods that can be used to reduce risks; inform users of the possibility of anonymous access to the Internet; do not read, modify, or delete the information transmitted to others; Collect, process and store consumer personal data only for the necessary accurate, specific and legal purposes; do not use the data for promotional purposes unless the individuals involved have not objected; be responsible for the proper use of the data and must report to consumers The individual clarifies the protection of personal rights, and informs the content, method, purpose and period of use of the information collected, processed, and stored when consumers start using the service or visiting the various sites of the network eye service operator; Accurate data or delete information that is redundant, outdated, or no longer needed. Avoid concealed use of data; information provided to consumers must be updated accurately and in a timely manner; posting data on the Internet should be considered carefully, as this is likely to infringe on the privacy of others and may also be prohibited by law.
Another prohibited activity is the interconnection and comparison of data documents. Australian law stipulates that unless domestic law can provide corresponding protection measures, interconnection should be prohibited, especially by connecting, merging or downloading personal data files containing personal data, and prohibiting the creation of new files from files that can be consulted by third parties It is forbidden to compare or interconnect documents or personal data held by third parties with one or more documents held by public institutions in order to enrich existing documents or data.
Singapore believes that it is necessary to limit the legal liability risks of network service operators, otherwise it will harm the development of the country's emerging network industry. Singapore ’s laws have always been known to be strict, but it has also followed the international trend in protecting the interests of network service operators and adopted a more moderate policy.
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