The use of new technologies by traders may create new information asymmetries.
The Law Commission in England has recently noted that188
Individuals, consumers and businesses demand modern, convenient methods for entering into binding transactions. Technological developments have changed the ways in which these transactions are made and will continue to do so at an ever-more-rapid pace
but also that consumers may be more likely to enter into agreements in haste or error if they use electronic signatures.189The focus of the Law Commission’s study is the
185Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications) COM(2017) 10final, 10 January 2017, Explanatory Memorandum, para 3.1; seehttps://ec.europa.eu/digital- single-market/en/news/proposal-regulation-privacy-and-electronic-communications.
186Regulation (EU) 2016/679/EU of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, [2016] OJ L119/1: arts 4 (11) (“‘consent’of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”) and 7 (“con- ditions for consent”).
187Proposal for Regulation, COM(2017) 10final art 29.2.
188Law Commission,“Electronic Execution of Documents”(Consultation Paper No 237, 2018) para 1.1.
189Ibid para 1.21.
electronic execution of documents, to facilitate the use of new technologies and to ensure the validity of transactions entered into by electronic means. Their provi- sional conclusion is that it is not for the general law of execution of documents to address consumer protection matters, but that, where necessary, specific legislation, such as the Consumer Credit Act 1974,190 can and does provide additional pro- tections for vulnerable parties.191There appears to be no plan to address directly the question of whether new information asymmetries might be created by new tech- nologies, which might therefore call for new legislative responses, although the general policy of the UK legislator to bring digital contracts within the scope of general consumer protection legislation has already been noted.192
7 The Information Model Under Pressure and the Problem of Disinformation
The potential hazards of (excessive) mandatory information for the law of consumer protection are of course discussed in the literature in England.193Although (as we have seen in this paper) very many of the information requirements in English law flow from the implementation of EU rules, and to that extent the choice to use information as a source of consumer empowerment has an EU origin, there has generally been a similar view amongst UK Government agencies in favour of information requirements without significant internal critical review of the risks of information overload.194
190Above, Sect.5.1.
191Law Commission,“Electronic Execution of Documents”(Consultation Paper No 237, 2018) paras 1.22, 6.30.
192Above, Sect.6.1.
193See esp Howells (2005).
194See e.g. the DTI Consultation:Extending Competitive Markets: Empowered Consumers, Suc- cessful Business(July 2004) 4.1 (“Empowered consumers have the choices, information and skills to make decisions that give them a good deal. They are able to shop around; they have good information on products and services and the traders who provide them, and they are able to compare different deals in order to reach a decision that best suits their circumstances.”) See also the Impact Assessments produced for the Department for Business, Innovation and Skills in relation to implementation of the EU Consumer Rights Directive as regards information requirements and extension of the right to withdraw for off-premises contracts and for distance contracts (August 2012), available on the Government’s consumer protection policy pages athttp://www.gov.uk/
government/policies/consumer-protection, and the Government’s Response to Consultations on Misleading and Aggressive Practices and the European Consumer Rights Directive (August 2013). That Response, as well as the Government’s Statement on Policy Reform and Responses to Pre-Legislative Scrutiny of the Bill which became the Consumer Rights Act 2015 (January 2014) list as thefirst of the“core consumer rights”the“right to clear and honest information before you buy”.
The recognition of information overload is more recent in the EU context: Commission,“A European Consumer Agenda—Boosting confidence and growth”COM(2012)225final, para 3.3.
There is no specific legislation that deals with the problem of disinformation as a result of an overload of information.
References
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Disinformation of Consumers: German Law Report
Boris Schinkels
Abstract The German national report covers aspects regarding information/
disinformation of consumers according to German law and thus serves as a source for the general report. Key topics are the characteristics of the underlying consumer model, pre-contractual information in general (with a particular focus on transpar- ency requirements), food information, misleading commercial practices and control of unfair contract terms. Regarding the latter the German rules for the control of standard contract terms significantly differ from the rules that specifically transform the Directive 93/13/EEC on unfair terms in consumer contracts (which is specifically discussed with regard to bargaining power). Sector specific observations cover the financial consumer and the digital consumer (especially addressing distance sales and data protection). Additionally, the national discussion regarding (mandatory) consumer information as a problem of information overload is being considered.
Final observations regard measures relating to the education of consumers.
1 General Characteristics of the Consumer Model