Consumer Law

Paper Comparing US and European E-Commerce Protections

By Jeff Sovern

Michael L. Rustad of Suffolk has an article titled Circles of E-Consumer Trust: Old E-America v. New E-Europe in the Michigan State University College of Law Journal of International Law, available at http://ssrn.com/abstract=1023659.  Here's the abstract:

Robert Kagan's article in The Economist entitled, Old America v. New Europe, obliterates the American assumption that Europe is a clapped-out old continent while America is the young teenager. For example, Kagan notes how America's political system is old in comparison to the upstart European Community. The transnational divide in consumer rights in electronic commerce is yet another example of Old America and New Europe. The American free market approach to consumer e-commerce relies largely upon private ordering generally taking the form of one-sided clickwrap license agreements that disclaim all warranties, meaningful remedies, and require consumers to litigate in the functional equivalent of Siberia. U.S. courts have been inclined to enforce mass-market license agreements so long as consumers have a right to manifest assent after reviewing the terms. European courts will not enforce these adhesive contracts because of mandatory consumer protection rules such as the Unfair Contract Terms Directive and the Distance Selling Directive. As a result, there is a chasm between U.S. and European consumer protection rules in cyberspace. The U.S. is from Mars and Europe from Venus when it comes to mandatory consumer protection rules in e-commerce transactions.

Part I of this Article introduces New Europe's substantive consumer rules governing e-commerce (as well as the bricks and mortar world). Part II explores, compares and contrasts U.S. style cyberspace jurisdiction with the mandatory consumer rules of the Brussels Regulation. Part III compares U.S. conflict of law to the mandatory private international law of Europe. In each of these areas, the twenty-seven countries of the European Community have promulgated minimum adequate consumer remedies. In contrast, U.S. consumers have, in effect, anti-warranties and remedies in e-commerce transactions. The Old America and New Europe must harmonize their radically different approaches to build circles of consumer trust in cyberspace.

Full post as published by CL&P Blog on March 23, 2008 (boomark / email).