国际电子商务外文文献

ORIGINAL PAPER

Consumer Protection in Electronic Commerce:Some Remarks on the Jordanian Electronic Transactions Law Emad Abdel Rahim Dahiyat

Received:15January 2011/Accepted:7August 2011/

Published online:2September 2011#Springer Science+Business Media,LLC.2011

Abstract It has become increasingly certain that the success of e-commerce in any country depends mainly on the predictability and suitability of the legal framework and whether such framework copes sensibly with the needs of online consumers.For e-commerce to reach its full potential,consumers must have effective protection when shopping online,and their primary rights must be adequately protected.This paper thus explores the way in which the Electronic Transactions Law deals with such rights and determine whether or not this law gives due attention to consumer protection in an online environment.Furthermore,this paper encourages debate of what such law should be in order to enhance legal certainty as well as increase trust in e-commerce in Jordan.This paper,however,is not intended to provide the final answer to all questions and challenges in this regard,but to identify the main components,and provide perspectives on how to deal with such issue.

Keywords Consumer protection .Electronic Transactions Law .Privacy of personal data .Withdrawal from the contract .Unfair contractual terms

Electronic commerce changes the way the world is conducting business.It offers enormous potential for accessing to new markets and transacting between parties who may have had no previous contact or knowledge.With this modern kind of trade,transactions might even be formed by the interaction with or between intelligent software applications without any direct awareness or intervention of the human users.

Electronic commerce may also generate many consumer and legal challenges especially regarding the fit between law and technology.The law is not just words on a piece of paper,but it might play an active role in building confidence in e-J Consum Policy (2011)34:423–436

DOI 10.1007/s10603-011-9170-9

E.A.R.Dahiyat (*)

Faculty of Law,Al-albayt University,Mafraq,Jordan

e-mail:aldahiyat@https://www.360docs.net/doc/598380119.html,.jo

424 E.A.R.Dahiyat commerce,encouraging efficient business practices,and enhancing the commercial flourish in the networked environment.It is quite possible however that the law might contribute in shaking the trust in e-commerce and undermining the security and reliability of the online environment.

It can be said that the success of e-commerce in any country depends primarily on the predictability and suitability of the legal framework and whether such framework copes sensibly with the needs of online consumers.For e-commerce to reach its full potential, consumers must have effective protection when shopping on the Internet,and they have to feel that their data and transmissions are adequately safeguarded and authenticated. Otherwise,the results will be less and less convincing since individuals will be less willing to engage in the universe of the electronic commerce,and hence,e-commerce will not flourish and its growth will be stifled.

Like other countries,Jordan sought to benefit from the advantages and unprecedented opportunities of e-commerce.To achieve this goal,considerable economic and legislative reforms were made during the last decade to bring the Jordanian market into conformity with the global economy and shift the Jordanian economy from protected form of economy to the market one,where the competition practices and liberation of goods and services’prices are freed.1In2001,Jordan enacted the Electronic Transactions Law No.85which was largely based on the UNCITRAL model law on electronic commerce.This law has recognized electronic transactions and signatures and placed them on equal footing with their paper counter-parts.Furthermore,Jordan signed and acceded to many treaties and agreements at international,2American,3and European4levels to create a favourable e-commerce climate and meet the standards of international trade.

After such changes and in the light of the Jordanian membership in many international agreements,the pressing question that needs to be addressed is whether or not the Jordanian law of electronic transactions deals appropriately with the challenges of e-commerce in a way that strikes a balance between business interests and the need to protect consumer rights.In other words,does the Electronic Transactions Law in Jordan offer the necessary guarantee for a secure online commerce?This question will therefore be the subject matter of this paper.

1Jordan also made fundamental amendments on a wide range of laws to secure a suitable climate for e-commerce.For instance,the Jordanian legislator amended Art.(13)of the Evidence Law in its provisional formula No.37for the year2001.According to this amendment,Art.(13)provides that electronic mail shall have the legal power given to the customary document in the law of evidence and that authenticated or signed computer documents shall have the power of written documents relating to evidence purposes. Another example can also be found in Art.(92)of Banking Law No.28for the year2000which provides that all means of evidence shall be permitted in banking cases,including electronic data,computer printouts and telex correspondence.

2For example,Jordan joined the World Trade Organization on April11,2000.Jordan has also joined the World Intellectual Property Organization.

3A joint statement on e-commerce was made by Jordan and the United States on7th of June2000. According to this statement,both governments should avoid imposing unnecessary restrictions on e-commerce.In addition,Jordan signed the Free Trade Agreement with the United States in October2000. Such agreement promotes a liberalized trade between U.S and Jordan for e-commerce and commits the parties to refrain from imposing measures that would hinder the growth of e-commerce.

4Jordan and the European Union have signed an Association Agreement on24November1997.

Consumer Protection in Electronic Commerce425 The Protection of Online Consumers in Jordan

Although e-commerce is growing at a dramatic rate,there are still areas of concern that need to be addressed adequately by the legislation in order to promote trust in e-commerce and remove any barriers to its full development.Such areas of concern revolve in one way or another around the issues of consumer protection,privacy,and data protection in an online environment where the contracting parties hardly know each other,and in which electronic communications are rarely subject to direct human review.

Online consumers may not use the Internet to make purchases if they find that they do not have a clear protection from unfair contractual terms or that their rights of privacy and transparency are not comprehensively guaranteed.Therefore,it can be argued that the lack of proper legislation may not only shake consumer confidence in online commerce,but it might also threaten the expansion and profitability of e-commerce.It is clear then that the consumer protection in e-commerce is based on several rights such as the right of full information,the right of privacy,the right to withdraw from the contract without penalty, and the right to have effective protection from unfair contractual conditions.

Let us now explore the way in which the Electronic Transactions Law deals with such rights and determine whether or not this law gives due attention to consumer protection in an online environment.Let us further permit and encourage debate of what such law should be in order to enhance legal certainty as well as increase confidence in e-commerce in Jordan.

The Right of Withdrawal

Unlike the situation under the European law where the consumer has a right to withdraw from the contract without penalty and without giving any reason(Hedley2006,p.264; Reed2004,p.298),5the Electronic Transactions Law does not contain any right of free withdrawal for the consumer.It should however be noted that the major purpose of this law is to facilitate the use of electronic means in transactions’procedures without nullifying, amending or deleting any provision of other laws.6Given that the traditional rules of contract are embodied in the civil code which is still applicable to transactions carried out electronically over the Internet,one might conclude that there are two probable scenarios to construe and explain this Jordanian trend;either the Electronic Transactions Law has just focused on confirming the validity of electronic contracts and leaves the substantive issues that arise in contract formation to the general rules of civil law,preferring to wait and see the extent to which e-commerce will reach,or it considers that the present regulatory framework in the civil code is sufficient and that electronic contracts,in spite of their unique features,exhibit more similarities to their non-electronic counterparts than differences,and hence,they do not need to be addressed in detail within the Electronic Transactions Law.

This approach can be subject to so much criticism.From a business perspective,such approach could have negative effects on e-commerce and the business models built on it. 5In the context of European law,the most important initiative insisting on the right of withdrawal is the Directive97/7/EC on the protection of consumers in respect of distance contracts,which provides in Article (6)that the consumer has an automatic right of withdrawal from the contract for a period of at least seven days.However,certain goods and services are excluded from this right such as goods which are personalized or inherently impossible to return,audio,or video recordings and computer software,periodicals,and magazines.

6Electronic Transactions Law No.85of2001,Art.(3)

426 E.A.R.Dahiyat Electronic commerce in Jordan will not flourish under such a framework where the rules are not sufficiently clear and precise.This uncertainty could ultimately discourage consumers from participating actively in e-commerce.Furthermore,it is not commercially reasonable that the Electronic Transactions Law does not yet mention the right to withdraw from the contract,and still considers that the traditional rules of contract are sufficient enough to meet commercial and technical demands of electronic transactions,and to catch up with the problems and consequences thrown up by e-commerce.Although the general rules of the Civil Law contain in one way or another some kind of indirect consumer protection according to which the purchaser might have the option of returning the sold goods,such rules may not be sufficient in the digital world where the transaction is conducted without the simultaneous physical presence of both parties and without having the ability to try or touch the sold item in advance.

At this point,two observations are called for.First,according to the general rules of the Civil Law,the consumer cannot exercise the possibility of returning the sold items unless and until an old defect existed in the sold item before its delivery or before the sale.7It cannot then be said that such rules have recognized the right to withdraw from the contract without penalty and without giving any reason.Such right in the civil law is indeed conditional upon the existence of the defect.Second,it is unlikely that the other law will provide the appropriate answer to this novel kind of trade.This is particularly true if we take into account the special nature and characteristics of an online environment.If we insist on extending the traditional rules,which were originally enacted to deal with ordinary commerce to be applied to such modern kind of commerce,the result might be increasingly unsuitable.It has thus become urgent to directly address such issues,and promulgate specific rules relating to the protection of online consumer in order to strike a balance between consumer rights and expectations on the one hand,and the commercial reality and technological progress on the other.Maybe it is time to begin to recognize that any failure in addressing such issue could have a negative consequence on business models and consumers conducting commerce on the Internet.This necessitates that our legislator has to deal with consumer rights clearly,comprehensively,and explicitly without invoking and depending,to a great extent,on the general rules or on other laws and regulations.

The Right to Review the Contract and Identify Any Mistake in Due Course

In an online environment,many difficulties arise mainly from a lack of human access and awareness and from differences between Cyber and physical world communication methods,particularly communicating via intermediaries where individuals do not make purchasing decisions directly but act through automated or autonomous software systems.8 Even if we suppose that such individuals have some role in the online context,they will nonetheless have little reason to suspect,know of,or expect a mistake.This is because of the fact that e-tailers and online malls frequently offer substantial discounts and free offers in high volumes as a way of attracting attention(Hertz2002,p.6).

7Civil Law No.(43)of1976,Art.(513).See also Art.(194)of the same law according to which the right to withdraw from the contract cannot be exercised unless and until it has been shown that the old defect is affecting the value of the item,unknown by the purchaser,and the vendor has not stipulated to be absolved of the responsibility for it.

8Contemplate,for example,the recent cases in which https://www.360docs.net/doc/598380119.html, offered mistakenly Sony televisions for ￡2.99,https://www.360docs.net/doc/598380119.html, erroneously listed HP iPAQ pocket PC for￡7.32instead of￡287each,and Kodak advertised digital cameras on its website at￡100instead of￡329each.

Consumer Protection in Electronic Commerce427 Unlike the offline environment where parties are transacting while they are sitting face to face and in which errors can straightforwardly be traced or identified,the complexity of errors and the potential for non-negligent mistakes remain higher in an online environment in which many factors and parties may play a role in producing an outcome.Since errors in such environment do not reveal themselves clearly,it is often difficult to identify their source or to detect their occurrence in time.It might also be difficult in this regard to distinguish the actual cause of the mistake and determine whether it is the software,user, programmer,third party,network providers,administrators of electronic shopping malls, owners of the servers,viruses,or the mix of all those parties and factors.

While some of these difficulties can be overcome by making the technical means for detecting and correcting input errors and mistakes available before the contract is finalized,9 most other difficulties cannot be handled by the technology,and they still revolve around the questions of how to deal legally with electronic mistakes and who can best bear,manage,or spread the risk in the digital world.Since technology can never legitimate technology,the law is faced with an urgent need to regulate such issues so that parties can access a contract,give their full and informed consent,and identify any error without undue delay.

The examination of the Electronic Transactions Law indicates that this law does not include any provision for machine-made mistakes,nor does it specifically regulate the issue of how to deal with mistakes and errors in electronic contracting.It is not fully clear then under what conditions the consumer should be held liable and how he can be protected in case something goes wrong.Furthermore,this law does not contemplate explicitly all possibilities and challenges that might emerge in fully open systems such as the Internet,nor does it contain any principles or requirements which are necessary to ensure that relevant parties can sufficiently understand contract terms,and have the opportunity to access a contract and identify any error before such contract starts to produce significant effects.

On the other hand,the contemplation of the Electronic Transactions Law shows that this law deals with electronic commerce as if the parties in the online environment will be in a position to conclude agreements or as if there were direct knowledge,previous relations,or a trading partner agreement between the parties in the online environment without in any way accounting for other involved parties,intermediaries,or factors,10and without recognizing that traders in such environment will probably have no direct or previous 9It is useful here to mention that Art.11,para.2of Directive2000/31/EC of the European Parliament and of the Council of8June2000on certain legal aspects of information society services,in particular electronic commerce,in the internal market promotes best business practices that would induce businesses to make available procedures for detecting and correcting errors in electronic contract negotiation.Some countries have also considered a party’s failure to provide procedures for detecting and correcting errors in electronic commerce as an administrative offence that should be subject to payment of fine,and that might extend the period within which a consumer may avoid a contract.A good example here is Germany(Bürgerliches Gesetzbuch,sect.312e,para.1,first sentence),Italy(Decreto legislativo9aprile2003,n.70,art.21,para.

1.),and Spain(Ley34/2002,de11de julio,de servicios de la sociedad de la información y de comercio electrónico,arts.38and39).For more information,see Official Journal of the European Communities No.L 17,17July2000,pp.1–16.

10A good example of the excessive dependence on the existence of individual procedures and agreements between involved parties can be found in Articles15of the Electronic Transactions Law which provides that the addressee is entitled to regard the message as issued by the originator and shall act on such if he uses an information system,which he has previously agreed to with the originator for that purpose so as to verify that the electronic message was issued by the originator.Another example can be found in Article16which states that“Where the originator has agreed with the addressee to acknowledge receipt of that message,the addressee’s sending of such acknowledgement through electronic means or any other means or taking any action or measures thereby indicating the receipt of the message shall be deemed as fulfillment of that request or agreement.”

428 E.A.R.Dahiyat knowledge of many of their trading partners.11Instead of considering the critical differences between offline and online environments,and clarifying the mechanisms that must be set out to ensure that parties can practically give their full and informed consent,the Electronic Transactions Law has merely recognized the validity of electronic contracts and depended greatly on the general rules of civil law especially those related to mistakes in the electronic contract formation.By following this approach,this law does not only ignore the complex interrelations and the active roles of the parties involved but also fails to recognize the inherent unreliability of the electronic environment,pays no attention to other potential sources of the problem,and leaves aside the issue of how to deal with electronic mistakes in a way that strikes a balance between different interests in the digital world.

Related to the issue of consumer protection in an online context is the potential problem of mistakes that might arise in agent-mediated environment.Although the Electronic Transactions Law mentions electronic intermediary explicitly12and makes it clear that the operations of an electronic intermediary may effectively form a valid and enforceable agreement even if no human knows of or reviews such operations,this law fails to include electronically generated mistakes of an electronic intermediary,and treats the operation of the electronic intermediary as a mere extension of the actions of the human being who initiated its use.13By doing so,the Electronic Transactions Law confers on a software intermediary an absolute power to bind its user in all circumstances,even when such intermediary produced some pathological decisions that no reasonable man would predict or control,committed a mistake that the user has no reason to be aware of,or operated outside the scope of its predetermined instructions.

It can also be concluded that such law puts full liability on the shoulders of the electronic intermediary’s user even if this intermediary malfunctions,or engages in transactions that are not entirely pertinent or related to the original task or to the regular course of the user’s businesses.Moreover,the Electronic Transactions Law ignores the conditions and requirements that should be met in electronic intermediaries before any commercialization or before being offered to the consumers.It simply attribute the actions initiated by such intermediaries to their users without any investigation into whether or not the user has knowledge,accessibility,and control over the actions of his intermediary,and without accounting for the extent to which other parties are or are not involved in creating the intermediary’s reactions.This attribution could sometimes lead to unfair situations, especially when that user has used an electronic intermediary following repetitive and convincing advertising on the Web without understanding the consequences of such use, and without appreciating the extent of the technical capacities of such intermediary that belongs to this website.

11This becomes clearer when one contemplates the fact that anyone has the ability to access the Internet from anywhere in the world.

12The Electronic Transactions Law defines an electronic intermediary in Article(2)as“a computer software or any other electronic means used for implementing a procedure or responding thereto for the purpose of generating,sending,or receiving a data message without any personal interference.”This definition however does not distinguish between different kinds of electronic agents,but deals with them as if they all belong to the same category.It seems that this Article ignores the fact that electronic agents could be classified according to their role,to the way they work,or according to the degree of their autonomy and intelligence.It can also be said that this definition refers only to the first generation of agents which are called“electronic intermediaries.”

13Electronic Transactions Law No.85of2001,Art.(14).According to this Art.,all operations and consequences that are generated automatically by software intermediaries without human involvement or knowledge should be considered as originating from the legal entity on behalf of which the electronic intermediary is operated.

Consumer Protection in Electronic Commerce429 It is essential thus to promulgate specific liability rules when something goes wrong with such agents,and to strike a balance between consumer rights and expectations on the one hand,and the commercial reality and technological progress on the other.Since most unanticipated problems and unwelcome results in the case of electronic contracts stem from lack of access to and understanding of the terms of such contracts,it would then be much better if the Electronic Transactions Law focuses on the level of comprehension and understanding on the part of the consumer by containing the principles and requirements that may permit the detection and correction of errors in due course and make sure that the contracting parties give their full and informed consent.It would also be useful if the law obliges e-commerce web sites to provide parties with full access to the terms of a contract,and notify them of the relevant events and contractual terms either immediately or shortly after the conclusion of the contract.Such notification can be performed through E-mails,short message service(SMS),alert messages,or any other data transmission means.This notification is not intended to make the enforceability of a contract conditional upon the human ratification of each single point or message,but to confer the user an opportunity to correct any error before such contract starts to produce significant effects.14

It is perhaps useful for Jordan to consider the principles and requirements of the Electronic Commerce Directive,15which deal with the steps that should be followed in the electronic contracting process so that parties can give their full and informed consent. Article10of this Directive provides that Member States shall ensure that all information related to the technical means for identifying and correcting input errors is given by the service provider clearly,comprehensibly,and unambiguously and prior to the placing of the order.16This article also states that“contract terms and general conditions provided to the recipient must be made available in a way that allows him to store and reproduce them.”17 Likewise,Article11of this Directive highlights the significance of acknowledgement of receipt in the contractual process,18and emphasizes how important it is to make available to the recipient effective and accessible technical means allowing him to identify and correct input errors prior to the placing of the order.19

The Right to Have Effective Protection from Unfair Contractual Terms

Online environment does not usually involve parties in an ongoing relationship. Rather,it often involves non-repetitive interactions between parties who have never met.It might also involve other interactions between two or more software systems without any human intervention.Thus,a negotiation might be absent in such 14It would also be wise if the law requires the existence of at least one opportunity to detect and correct handling errors,prior to the placing of the order,and if it provides that a(at least)two-clicks process must be built up in e-commerce platforms.This implies that businesses should implement methods by which consumers can confirm the decision to purchase or withdraw from a purchase before a transaction is completed.

15Directive2000/31/EC of the European Parliament and of the Council of8June2000on certain legal aspects of information society services,in particular electronic commerce,in the internal market,OJ2000L 178/1.

16Article10(1)of the EC E-Commerce Directive.

17Article10(3)of the EC E-Commerce Directive.

18Article11(1)of the EC E-Commerce Directive.

19Article11(2)of the EC E-Commerce Directive.

430 E.A.R.Dahiyat environment or substituted by a simple assent to a standard and unmodifiable proposal.20In many cases,it may be impossible or extremely difficult for a consumer who knows little about the unique nature of electronic contracts to weight such contracts up and determine their degree of fairness.Under such kind of circumstances,there might be no room for discussion or discretion;there might be only the model of"take-it-or-leave-it."Consequently,a consumer may quickly be the victim of an electronic environment simply because he has no commercial or professional capacity and has no opportunity to fully negotiate terms and conditions with online suppliers.This is perhaps the reason why it is necessary that consumers should not be offered any less protection when participating in e-commerce,but they should enjoy an effective protection subsequent to the conclusion of contracts by giving the option to reconsider the contractual terms they entered into.

This necessity has been recognized by many jurisdictions which have enacted consumer protection laws specifically to regulate distance selling over the Internet and impose generic controls on unfair terms in business-to-consumer contracts.A typical example in this regard is the EU Directive on unfair terms in consumer contracts,21which provides that consumers are not to be bound by unfair terms in a contract signed with a professional,although the contract will still subsist so far as is possible,and its remaining terms will be enforceable if such contract is capable of continuing in existence without the unfair terms.22According to this Directive,a term is unfair when it has not been individually negotiated,and it causes a significant imbalance, to the consumer’s detriment,between the rights and obligations of the contracting parties.23The Annex to this Directive contains a non-exhaustive list of terms that are likely to be regarded as unfair,several of which may apply to Internet transactions such as those terms that include excluding or limiting the liability of the supplier,enabling the supplier to alter the terms of the contract unilaterally,and excluding or hindering the consumer’s right to take legal action or exercise other legal remedy.

In respect of the position in Jordan,it seems that little attention has been given to this issue since the Electronic Transactions Law does not contain any explicit rules to protect consumers against unfair terms in business-to-consumer contracts.The lack of adequate response within the Electronic Transactions Law implies that such law leaves this issue to the general rules of civil law especially those related to unfair terms in adhesion contracts. According to these rules,adhesion contract is a type of contract in which one side has all the bargaining power and uses it to write the contract primarily to his or her advantage. Such contract usually exists when there is only one seller or supplier of a particular product or service,or where there is just a single firm or group having exclusive control over a commercial activity.24With such kind of contracts,consumers accept only predetermined conditions made by the offeror without having realistic opportunities to negotiate such conditions.25This is why many of these contracts might be unfair to the weaker party,and 20This is particularly so if we consider that,in the case of such environment,the details and contents of electronic contracts(such as the price,means of payment,delivery,dates,and the quantity and the quality of the goods)are often predetermined by suppliers so that consumers do nothing except accept or reject a pre-programmed standard offer.

21Council Directive93/13/EEC on unfair terms in consumer contracts,OJ L95,April211993.

22Art.6(1)of the EU Directive on unfair terms in consumer contracts.

23Art.3(1)of the EU Directive on unfair terms in consumer contracts.

24A good example here is utilities which provide essential services such as water and electricity.

25Civil Law No.(43)of1976,Art.(104).

Consumer Protection in Electronic Commerce431 this is why the general rules of civil law allow the court to interfere and amend unfair contractual terms or exempt the weaker party from them.26

This approach,however,can be subject to much criticism;firstly,it is apparent that the drafters of the Electronic Transactions Law have insisted on applying the traditional rules of Civil Code to modern kinds of commerce without in any way accounting for their peculiar characteristics,and by doing so,they continue to translate new problems to old images regardless of the fundamental differences between online and offline environments. Secondly,it is not certain whether or not all electronic contracts can be considered as adhesion contracts.Even if the mutual negotiation is pretty thin in the case of web contracts,it is not,as some might expect,totally nonexistent.This is especially true if one thinks of the fact that the Internet provides individuals with a wide range of options to interact with each other whether through e-mail,text message(SMS),or some other means of data transmission.Moreover,although the vast majority of electronic contracts include only a standardized process,it is still doubtful nonetheless whether such contracts constitute monopolistic practices that hinder free competition.This is especially true if we contemplate the massive growth of e-businesses available on the Internet,or if we think of the fact that e-commerce supports the concept of free pricing and facilitates transparent access to new markets.It can then be said that the Internet offers several options and alternatives according to which users can select what would benefit their interests.After that,can we assume that electronic contracts relate always to essential services or products provided by a sole supplier and that there is no way to fully engage in electronic marketplaces other than accepting the oppressive conditions of that supplier?

Another potential area of weakness in this approach concerns the way of dealing with unfair terms that might arise in electronic contracts.Once again,the Electronic Transactions Law depends,to a great extent,on the general rules of civil law which give the court the authority to grant appropriate relief in order to govern unfair terms in business-to-consumer contracts without in any way clarifying how the court may grant relief,or when the court can and cannot interfere.27It can then be argued that this approach does not allow participants in electronic commerce a high degree of certainty in predicting how a court will rule,and hence,it is quite possible that they will worry that the standards developed by courts will undercut the speed and efficiency of such commerce,and this could shake their confidence in the use of electronic communications in the contracting process.

Electronic commerce will not flourish under such a framework where the rules are not detailed enough.When dealing with this modern kind of commerce,the consumer needs positive legislation to feel secure.The law should then involve much more than simply depending on the general rules of Civil Code.It has become necessary that the Electronic Transactions Law deals directly with the issue of unfair terms in electronic contracts.

26According to Art.(204)of Civil Law,a court may amend an unfair term in adhesion contracts,or invalidate it and refuse to enforce it.Every agreement to a contrary effect shall be void.This Art.implies that the authority of the court is guaranteed and cannot be refused even if the weaker party earlier agreed to waive this right.

27Art.(204)of Civil Law does not try to tell courts how to address this matter that has not yet been raised in the judicial context.Therefore,it is not fully clear how the court may grant relief,or when the court can interfere.It is highly likely that such Art.will place a heavy burden on courts,which might not be able to deal sufficiently with this issue.Courts are based on the human elements(judges),who might not necessarily have sufficient knowledge of some technical issues.It is possible then that impractical consequences will follow simply because the judge is not able to fully understand the nature of the electronic environment.

432 E.A.R.Dahiyat The Right of Full Information

In order to protect online consumers and boost their confidence in e-commerce,consumer protection rules in most jurisdictions require that certain information must be provided to the consumer in good time before the contract is concluded.Good examples in this regard are the European Directive2000/31/EEC on electronic commerce,28and the European Directive 1997/7/EC on the protection of consumers in respect of distance contracts which contain specific provisions in terms of information to be provided to the consumer.29Such directives aim to encourage greater use of e-commerce by clarifying the rights and obligations of businesses and consumers,enhancing the transparency,and breaking down barriers across Europe.In order to achieve these goals,such Directives require that certain information be supplied to consumers in a clear manner that comports with the means of distance communication used,having regard to the principles of good faith in commercial transactions, and the protection of minors and others unable to give consent.These Directives insist further that online service providers are obliged to provide contact details to the recipients of their services in a form that is easily,directly and permanently accessible.30

Unlike the European law,the Electronic Transactions Law in Jordan does not contemplate the information that the supplier must provide to the consumer before the conclusion of the electronic contract.By doing so,this law leaves this issue to be governed by the general rules of the Civil Law31without in any way recognizing the fact that consumers in an online environment need more protection than that offered by such general rules.Without direct and comprehensible recognition of the full information right,suppliers might have an absolute power to bind their consumers regardless of whether or not they provide them with the necessary information to enter into contracts,and consumers might thus become largely unprotected.If creating a confident and protective environment for online consumers is our concern,it is essential then that the Electronic Transactions Law 28The European Directive2000/31/EEC on electronic commerce requires that the supplier shall make available the terms and conditions of the agreement to the consumer in a way that he can read,reproduce, and print them.Such obligation is valid also for contracts concluded through the exchange of e-mails.For more details,see Art.10of this Directive which lists the minimum requirements in terms of information to be given to the consumer.

29The European Directive1997/7/EC on the protection of consumers in respect of distance contracts includes an important language relating to the right of full information.This is set out in Art.4of this Directive which requires that certain details must be provided to consumers before the contract is made.The details required are the identity and address of the supplier;the main characteristics of the goods or services; the price,including all taxes;delivery costs;payment details;the existence of the right of withdrawal;the cost of using the means of distance communication;and the period for which the offer or the price remains valid.Further information such as that relating to after-sales service and the effect of cancelling the contract must also be given.

30On October16,2008,the European Court of Justice ruled that the Directive on E-commerce2000/31/EC requires online service providers to supply customers with a rapid,direct,and effective means of contacting the service provider,in addition to listing the service provider’s e-mail address.Furthermore,the European Court of Justice ruled that an e-mail address on its own might not be sufficient and that another means of contact must also be offered,including online enquiry forms.In addition,traditional communication channels,such as telephone or fax,must be made available to users upon request(Case C-298/07).Moreover, Art.5of the Directive2000/31/EC stipulates that Member States shall ensure that the service provider shall render easily,directly,and permanently accessible to the recipients of the service.

31See,for example,Art.(144)of Civil Law which stipulates that silence with intent in respect of a fact or circumstance shall be considered as deceit if it is proved that the deceived person would not have entered the contract if he had known of that fact or circumstance.See also Art.(202)of Civil Law which provides that the contract shall be performed according to its provisions and in a manner consistent with the requirements of good faith.

Consumer Protection in Electronic Commerce433 addresses such issue explicitly by imposing special duties of information on the supplier so that certain details must be provided to the consumer either before the contract is made or in good time after it.

The Right to Privacy in Personal Data

Many privacy concerns arise in cyberspace where anonymity prevails and in which technology facilitates the collection,processing and transmission of individuals’information in a matter of a few seconds.On a daily basis,the vast majority of Web sites require e-consumers to disclose some personal identifying information as they complete electronic transactions or create online accounts.32Such consumers often provide the required personal information without fully understanding how this information will be used and whether or not it will be shared with third parties.They just do that to complete a transaction or gain access to a service they seek since they know that any refusal to submit the required information will hinder any further meaningful use of a Web site,and hence,they will find themselves unable to complete their intended purchase(Ciocchetti2008,p.561).

While some Web sites collect personal information from consumers and store it in their databases in order to facilitate transactions and discover consumers’trends and interests so that they can satisfy the ever-evolving needs of their consumers,other Web sites may collect personal information only to sell it to marketing firms or unrelated third parties for a profit.This might not only impact a consumer’s privacy negatively,but it may also cause considerable personal and financial damage especially when very sensitive data falls into the wrong hands.What complicates the matter further is the fact that once such data leaves the hands of its initial collectors,it may be stolen or purchased anonymously and from anywhere around the world.That being the case,it should come as no surprise if consumers know nothing about the identity of the parties that purchase their personal information or the purpose for which such information is used.This situation may infringe the privacy of e-consumers and leave them in the dark as to how their personal information will be used in the future.In order to avoid that,law should determine when,how,and to what extent consumers’personal information is collected,used,and shared with third parties.

Law is also strongly advised to oblige Web sites to notify their customer in advance and in a conspicuous manner of their privacy policy with regard to the collection,use,and dissemination of personal information.Such notification must clarify whether or not this information will be shared externally and must also include the identity of the data controller,the purpose for which the data is collected,and the measures that will be taken to guard such data against loss or unauthorised processing.By doing so,law will surely enable e-consumers to make informed decisions before submitting their personal information online,and provide them with options as to how this information may be used for purposes beyond those necessary to conclude a transaction.

Protecting the privacy of personal data is recognized as being important to society and to the development of e-commerce in Europe.This is why the European Union 32E-commerce Web sites often require e-shoppers to submit information about their social,economic or cultural identity such as their names,telephones numbers,physical and e-mail addresses,birthdays, education,gender,income,credit card details,and other information which can be used to identify an individual.

has enacted Directive 95/96in 1995to determine a basic framework for the protection of personal data while at the same time stressing the freedom of movement of personal data between each of the EU ’s Member States.33This Directive includes an important language that attempts to identify the core rights of data subjects,such as the right to know what data is held on them and the nature and purpose of the processing.Furthermore,this Directive necessitates that any subsequent use or transfer of the data must be justified in the light of the purpose for which it was acquired.34

Unlike the European Union,Jordan does not yet have comprehensive legislation pertaining to data privacy.Although the Jordanian Constitution explicitly recognizes the right of each member of the society to maintain and preserve his individual privacy,35and although Jordan signed many international agreements which have insisted on the importance of protecting the privacy of personal data,36Jordan has no specific data protection or privacy law,and hence,it remains unclear how to deal with the collection,processing,and dissemination of consumers'personal identifying information.In fact,even though Jordan has witnessed significant legislative reforms and amendments during the last decade,37none of such reforms and amendments regulate the privacy in online contracting.

34This EU Privacy Directive requires each EU Member State to enact substantial regulations covering eight data protection principles:(1)Purpose Limitation Principle:Personal information should only be used for a specific purpose;(2)Data Quality &Proportionality Principle:Personal information collected should be accurate and up-to-date;(3)Transparency Principle:individuals should be notified of the personal information uses and as to who controls the information;(4)Access,Rectification,and Opposition Principle:individuals should have access to collected personal information,be able to rectify inaccurate information,and oppose particular personal data uses;(5)Security Principle:Personal data collectors should take technical and organizational precautions to protect stored personal data;(6)Restriction on Onward Transfers Principle:Personal data collectors should not externally transfer any data to countries that do not have adequate data protection regulations;(7)Sensitive Data Principle:Personal data collectors must take extra precautions with sensitive data;and (8)Enforcement and Remedies Principle:Individuals should be able to enforce these regulations and should be entitled to a remedy upon a violation.35See,for example,Art.18of the Jordanian Constitution which provides that "all postal,telegraphic and telephonic communications shall be treated as secret and as such shall not be subject to censorship or suspension except in circumstances prescribed by law."36Such as the trade partnership agreement with the European Union and a joint statement on electronic commerce with the USA which have recognized the importance of facilitating the liberalization of trade and maintaining privacy rights and data protection.Moreover,Jordan is a signatory to the United Nations Declaration of Human Rights which stated that "no one shall be subjected to arbitrary intervene with his privacy,family,home or correspondence,nor be attacked in apropos of his honor and reputation …Every one has the right to the protection of the law against such interference or attack."37A good example here is the Internet CaféRegulations which were promulgated to govern the operation and licensing of internet cafés.Such regulations necessitate that Internet cafés must collect and record users ’names and any available unique personal identifiers (i.e.,national ID number),the time of use,and the sites they visit.Although such regulations provide that personal data pertaining to users and any information relevant to their use of the network should remain confidential,a cafémust disclose and submit such information when authorities request it.Another example about the legislative amendments that were made during the last decade is the amendments to the Telecommunications law which provide that "telephone calls and private telecommunications shall be considered confidential matters that shall not be violated"and that any person who "withholds a message …copies or reveals a message or tampers with the data related to any subscriber,including unpublished telephone numbers and sent or received messages,"or who discloses the content of any private communication "which came to his knowledge by virtue of his post or who records the same without any legal basis shall be punished"by imprisonment,a fine,or both.Similarly,"any person who intercepts,obstructs,alters or strikes off the contents of a message carried through the telecommunications networks or encourages others to do so,shall be punished by imprisonment,a fine or both."

33

See Council Directive 95/46,1995O.J.(L 281)(EC).434 E.A.R.Dahiyat

Consumer Protection in Electronic Commerce435 While the Electronic Transactions Law was well intentioned,38its silence with regard to data privacy has effectively undermined the consumer protection which it aimed to provide to Internet users.Instead of safeguarding the rights of consumers to privacy and protection in the online environment,this law says nothing about the collection,use,and disclosure of consumers'personal identifying information.Furthermore,this law does not require e-commerce companies to create a privacy policy or notify their customers of the purpose for which the personal data are collected from them.That being the case,one may conclude that online companies have too much power to determine the manner in which they collect and process consumers'personal data,and that such companies are absolutely free to sell, swap,or rent consumers’data to whoever they want without any fear that law will interfere or track down their operations.Under the current legal system in Jordan,online consumers have no control over their submitted information or over the subsequent use of such information,and it still difficult for them to make informed decisions before submitting their personal identifying information online.

Privacy is then one of the most complex challenges facing e-commerce in Jordan.Unless the Jordanian legal system meets this challenge adequately in a way that protects the personal information of consumers while also promotes e-commerce efficiency,the interests of Internet users across the country will be largely unprotected.Therefore,law is strongly advised to establish enforceable rules to safeguard users’rights to privacy in personal data. It is perhaps useful for Jordan to consider the principles of fair information practices for the protection of personal data that can be found in the Data Protection Directive in the European Union.It would also be useful in this regard to contemplate the Organization of Economic Cooperation and Development(OECD)Privacy Guidelines.39

Conclusion

Electronic commerce has brought with it a host of new challenges especially in matters of privacy and consumer protection.It has become increasingly certain that the absence of an appropriate legal framework to deal with such challenges may have a negative effect on the stability and predictability of e-commerce.For most shoppers,feeling that their data and interests are well protected throughout the different stages of the electronic contracting process is the most important consideration in shopping online.If consumers feel that their rights might be infringed or that their interests might not be effectively and explicitly safeguarded,then they may be less willing to engage in online activities and transactions.It seems thus that the primary challenge is how to deal legally with e-commerce in a way that promotes trust in conducting business over the Internet,and at the same time protects the fundamental rights of online consumers such as the right of full information,the right to 38The Electronic Transactions Law prohibits authentication institutions from disclosing the secrets of any client and provides additional sanctions for any person who commits a crime by electronic means.See,for example,Art.37which states that“Any institution engaged in the authentication of documents shall be penalized by the payment of a fine amounting to JD50000if it submits faulty information in the registration application,or discloses the secrets of any client,or violates the regulations and instructions that are issued in accordance with this Law.”See also Art.38which provides that“Any person who commits an act that constitutes a crime pursuant to the legislation in force through the use of electronic means,shall be penalized by imprisonment for no less than three months and no more than one year,or a fine of no less than JD3000 and no more than JD10000,or both.He shall be penalized with the harsher penalty if the prescribed penalties in such legislation are harsher than the penalty prescribed in this Law.”

39See OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data(2001), available at https://www.360docs.net/doc/598380119.html,/document/18/0,2340,en_2649_34255_1815186_1_1_1_1,00.html,on21/2/10

436 E.A.R.Dahiyat have effective protection from unfair contractual terms,the right to review the contract or to withdraw from it,and the right to privacy.

The most important initiative drawing the general features of electronic commerce in Jordan is the Electronic Transactions Law No.85of2001which was adopted in order to accommodate the challenging aspects of e-commerce.The examination of this law however does not paint a positive picture of the future of such commerce in Jordan.Unfortunately, this law says nothing regarding the protection of consumers'rights in the online environment.Furthermore,this law does not include any measures to build confidence in online commerce,nor does it involve any safeguards in relation to misleading advertising, unfair contractual terms,the collection of consumers'personal identifying information, spamming,and other marketing practices that may confuse or take advantage of the consumer.Instead of safeguarding the rights of consumers comprehensively,unambigu-ously,and directly,this law leaves this issue to be governed by the general rules of the Civil Law without in any way recognizing the fact that consumers in an online environment need more protection than that offered by such general rules.

In spite of the significance now being placed internationally on consumer protection, little attention has been given to such issue in Jordan.At the time of writing,Jordan does not yet have specific legislation pertaining to the protection of online consumers.While consumers in most jurisdictions receive the benefit of a wide range of consumer protection laws,there is no detailed or comprehensive legal framework in Jordan for consumer protection.Although the general rules of the Jordanian Civil Law contain in one way or another some kind of indirect consumer protection,such rules may not be sufficient in the digital world due to the fundamental differences between online and offline environments.

Although Jordan has proceeded with upgrading its legislation to meet challenges brought by e-commerce,it needs to do more in order to secure a suitable climate for e-commerce and enhance the confidence in conducting business online.In matters of privacy and consumer protection,Jordan should seek to establish explicit rules to safeguard consumers’interests without invoking and depending on the general rules of the Civil Law or on other traditional laws which may not be applicable for the Internet.For the full potential of e-commerce to be realized,Jordan is also strongly advised to develop effective standards to ensure that there are adequate consumer protection and proper means of redress in place.It is perhaps useful for Jordan to consider the principles of consumer protection that can be found in the relevant European Directives or OECD Guidelines.

References

Ciocchetti,C.(2008).Just click submit:The collection,dissemination,and tagging of personally identifying information.Vanderbilt Journal of Entertainment&Technology Law,10,553–642.

Hertz,L.M.(2002).Don’t get trapped into honoring online pricing errors.E-Commerce Law Report,4,7. Hedley,S.(2006).The law of electronic commerce and the Internet in the UK and Ireland(1st ed.).London: Cavendish Publishing Limited.

Reed,C.(2004).Internet law:Text and materials(2nd ed.).New York:Cambridge University Press.

The European Directive95/46EC on the protection of individuals with regard to the processing of personal data and the free movement of such data,1995O.J.(L281).

The European Directive93/13/EEC on unfair terms in consumer contracts,OJ L95,April211993.

The European Directive2000/31/EC on certain legal aspects of information society services,in particular electronic commerce,in the internal market,OJ2000L178/1.

The European Directive1997/7/EC on the protection of consumers in respect of distance contracts.

The Jordanian Civil Law No.(43)of1976.

The Jordanian Electronic Transactions Law No.85of2001.