Abstract
The digital economy centred on the internet has transformed the business landscape and provide a global platform for the execution of electronic commerce (e-commerce). Unlike offline transactions, consumers are more vulnerable in e-commerce due to the absence of face-to-face interactions. In offline commerce, consumers can deal directly with traders at their premises; in contrast, transactions between parties in e-commerce are carried out virtually. As e-commerce consumers cannot physically examine products prior to making their purchase decisions, they rely heavily on the information provided online. The emergence of influencer marketing to promote products and the use of social networking sites like Facebook and Instagram for advertising and selling purposes has further increased consumers’ vulnerability. While these paradigm shifts present challenges to existing regulatory frameworks, consumer protection laws in Malaysia must be effective for consumers to remain confident in e-commerce transactions. Given that consumers cannot always count on an honest representation from traders and influencers, the law plays a crucial role in providing protection against traders and influencers who may intentionally provide false, inaccurate or misleading information to entice consumers to buy the products. At the same time, the use of standard form consumer contracts has now become ubiquitous. This raises the risk that significant inequalities of bargaining power may be entrenched via the inclusion of terms that give an unfair advantage to traders at the expense of consumers. Therefore, to ensure that consumers can make informed choices and enter into a fair and balanced contract, existing consumer protection laws must pay due attention to aspects of quality information and contractual fairness.Accordingly, this thesis examines the duty of information and standard terms in consumer contracts, and the extent to which existing laws are sufficient to protect consumers’ interests, and thereby strengthen their confidence in e-commerce. It initially identifies the key elements required of a modern consumer protection framework and then uses this model as a yardstick to assess the legal frameworks in two jurisdictions. The first jurisdiction is that of Malaysia, a common law country which, while seen as a potentially important regional player in the development of e-commerce, has a relatively underdeveloped consumer protection framework. The second jurisdiction is that of England and Wales, also a common law jurisdiction, but one whose consumer protection framework has seen European Union consumer protection policy and legislation that further provide the impetus for significant legal reform in both offline and online environments. This thesis examines the extent to which the laws in both jurisdictions provide appropriate protection, considering countervailing issues (e.g., protection of commercial innovation and competition) and identifies potential gaps in provision (e.g., inadequate regulation of new platforms or business methods). Based on this analysis, and factoring in the political, economic and social factors relevant to the jurisdiction, notably its legal pluralism, which might militate against ‘transplants’ of law, this thesis proposes a model ‘evergreen’ consumer protection framework aims at improving the legal landscape of e-commerce in Malaysia.
| Date of Award | 12 May 2020 |
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| Original language | English |
| Awarding Institution |
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| Supervisor | Andrew J Charlesworth (Supervisor) & Paula Giliker (Supervisor) |