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Ready to move your business online?

Here is what you need to know

With Kerri-Anne Mayne

Wednesday, May 20, 2020

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In an era of social distancing, many businesses have no choice but to change their strategy from bringing the customer to the store, to bringing the store to the customer.

As businesses explore the various online channels available to provide products and services to their customers, they must be aware of the obligations which the law places on them as suppliers, or potentially face consequences ranging from being the subject of a complaint to the Consumer Affairs Commission to fines and/or imprisonment.

GOVERNING LEGISLATION

The Electronic Transactions Act governs the formation of agreements for the supply of goods, services and facilities for sale, hire or exchange by means of electronic transactions.

WHO DOES THE ACT APPLY TO?

The Act applies to suppliers who are in Jamaica and offer goods, services or facilities for sale, hire or exchange to any person in or outside of Jamaica. It also applies to suppliers who are outside of Jamaica and offer goods, services or facilities for sale, hire or exchange to any person in Jamaica. The parties cannot agree to exclude the provisions of the Act.

Notably, some businesses offer their goods and services through various social media platforms.

One must consider whether these forms of e-commerce arrangements fall within the scope of the statute.

WEBSITE REQUIREMENTS

The Act outlines certain information which a supplier must make available to the consumer on the website where goods, services or facilities are offered for sale, hire or exchange. Such information includes:

the full name of the supplier;

the supplier's geographical address, website address, e-mail address and telephone number;

a description of the main characteristics of the goods or types of services or facilities (as the case may be) offered on the website by the supplier, which is reasonably sufficient to enable the consumer to make an informed decision as to the proposed electronic transaction;

the full price of the goods, services or facilities including transportation costs, taxes and any other fees or costs;

the method of payment required by the supplier;

the time within which the goods will be dispatched or delivered, the services rendered or the facilities made available;

the manner and period within which consumers can access and maintain a full record of the transaction;

the return, exchange and refund policy of the supplier;

the security procedures and privacy policy of the supplier in respect of payment, payment information and personal information.

The supplier should also provide the consumer with an opportunity to complete the following actions in sequence:

review the entire electronic transaction;

correct any errors;

withdraw from the transaction before finally placing an order; and

access electronically and reproduce an accurate summary of the order and the terms, including the total cost.

If a supplier fails to comply with the above, the consumer is entitled to cancel the transaction within 14 days after receiving the goods, services or facilities to which the transaction applies.

The supplier must also utilise a payment system that is sufficiently secure, having regard to accepted technological standards at the time of the transaction and the type of transaction concerned.

PENALTIES FOR FAILURE TO COMPLY

A person who breaches any provision of the Act may be liable to a fine and/or imprisonment. The supplier may also be liable for any damage suffered by a consumer due to a failure by the supplier to provide a payment system in accordance with the specifications outlined in the Act.

Additionally, a supplier who has failed to comply with obligations in relation to electronic transactions may be the subject of a complaint to the Consumer Affairs Commission made by an aggrieved consumer.

Undoubtedly, the COVID-19 pandemic has fast-tracked Jamaica's transition to a digital society. Businesses must take advantage of the technologies available to help them weather the crisis and come out stronger and more efficient than before. As many more businesses enter the area of e-commerce, it is important that they are aware of their legal obligations as suppliers of goods and services online.

Kerri-Anne Mayne is an associate attorney-at-law at Myers, Fletcher & Gordon, and is a member of the firm's Commercial Department. Kerri-Anne may be contacted via Kerri-Anne.Mayne@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.


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