Marketplace will answer for everything
On January 1, 2019, new requirements for trading platforms and online exchanges entered into force, providing online intermediary services for the sale of goods (services) of third-party suppliers (performers).
The relevant amendments have been made to the Law "On Protection of Consumer Rights". A new concept is introduced into the Law - “the owner of the aggregator of information about goods (services) ” (hereinafter “the owner of the aggregator” or “aggregator”). Owners of trading platforms and online exchanges that meet all the attributes of the aggregator’s owner are assigned additional duties and responsibilities in relations with consumers and Rospotrebnadzor.
Than these changes threaten marketplaces and tell them how to avoid them under the cut.
Obligations and liability of the owner of the information aggregator
1. First of all, let us point out the duty of the aggregator to return in full to the consumer the prepayment received for the goods .
The owner of the aggregator returns the amount of the advance payment of the goods (service) received by him within 10 calendar days from the day the consumer presents a corresponding request.
The condition of return is the simultaneous fulfillment of the following requirements:
- a product (service) in respect of which the customer has made a prepayment to the bank account of the owner of the aggregator has not been transferred to the customer in time (the service has not been provided in time);
- the consumer has sent the seller (executor) a notice of the refusal to execute the concluded agreement in connection with the specified violation;
- the consumer has provided the aggregator with confirmation of the direction to the seller (executor) of this notification;
- the aggregator did not receive from the seller (executor) confirmation of acceptance by the consumer of the goods (provision of services) and did not send its copy to the consumer within ten calendar days from the date of receipt of the demand for the return of the prepayment.
- Note that the Law does not make the performance of the obligation to return a prepayment depending on whether the aggregator has managed to transfer this amount to the seller (executor) or not. In other words, the return does not depend on the calculations of the aggregator with the seller (performer).
2. The second essential duty of the aggregator is the need to communicate to the consumer information about themselves and the seller (performer).
This information should include:
- for a legal entity: company name (name), location (address), mode of operation, OGRN,
- for the entrepreneur: surname, name, patronymic (if any), OGRNIP.
In wallpaper cases, the consumer must be provided with information about changes in the specified information.
The owner of the aggregator informs consumers about himself and the seller (performer) by posting it on his website and (or) site page. Information about the seller (artist) can also be communicated by posting a link to the website of the seller (performer).
In case of violation of these obligations, the owner of the aggregator must compensate the consumer for the losses caused by such actions.
In addition, a violation of the consumer’s right to receive necessary and reliable information about the goods being sold (work, service), the manufacturer, the seller, the executor and their mode of operation entails a warning or imposition of an administrative fine on officials in the amount of from five hundred to one thousand rubles; for legal entities - from five thousand to ten thousand rubles (Part 1 of Article 14.8 of the Administrative Code of the Russian Federation).
We will clarify that an individual entrepreneur in the Code on Administrative Offenses of the Russian Federation is equal to an official.
3. And finally, the aggregator is now obliged to provide information at the request of the Rospotrebnadzor as part of monitoring compliance with consumer protection laws.
Failure to submit or untimely provision of information to Rospotrebnadzor entails a warning or the imposition of an administrative fine on officials - from three hundred to five hundred rubles; for legal entities - from three thousand to five thousand rubles (Art. 19.7 of the Administrative Code of the Russian Federation).
Marketplace vs product information aggregator
Now we will discuss who these changes concern in the order of trading through the Internet. Who is the owner of the aggregator of information about goods (services) from the point of view of the law and whether any commodity platform or exchange in the ordinary sense can be assigned to the aggregator of information about goods (services).
The legal definition of the owner of an aggregator of information about goods (services) is given in the preamble of the Law “On Protection of Consumer Rights”. The definition is very cumbersome, so for ease of understanding the new term we will break it down into its component parts, including the list of signs of the aggregator's owner.
So, according to the legal definition, the owner of the information (goods) information aggregator must:
- have registration in the status of the organization, regardless of the legal form or individual entrepreneur;
- to legally own computer programs and (or) the site and (or) page of the site on the Internet.
Further, according to the definition, the owner of the aggregator of information about goods (services) should provide the consumer with respect to a particular product (service) the opportunity to simultaneously:
- read the proposal of the seller (performer) on the conclusion of the contract for the sale of goods (the contract of paid services);
- conclude a contract of sale with the seller (performer) (paid service agreement);
- make a preliminary payment for the specified goods (services) by transferring funds to the aggregator's owner within the framework of the applied forms of cashless payments in accordance with paragraph 3 of Article 16.1 of this Law and Federal Law No. 161-ФЗ dated June 27, 2011 “On the National Payment System”.
We clarify that acquaintance with the seller’s (contractor’s) proposal to enter into a contract can be made by posting information about the seller (executor) and product (service) in an amount sufficient to enter into a contract of sale.
Providing an opportunity to conclude an agreement with the seller implies that transactions with the user (consumer) are concluded by the owner of the site on behalf of the seller (performer) or directly by the supplier (performer) using the software and hardware provided by the aggregator.
Advance payment is accepted only in non-cash order and only at the expense of the owner of the aggregator.
The absence of any of the above signs in the marketplace entails the impossibility of applying to it new requirements of the legislation on the owner of the aggregator.
For example, many trading platforms and exchanges provide consumers with information about suppliers (executors) and goods (services) sold by them, but do not take part in the calculations. Monetization of such services is based on paid inclusion in the catalog or receiving and transmitting applications (lead generation).
With this in mind, sites participating in various kinds of affiliate programs of online stores and individual suppliers are also not considered aggregators of information about goods (services).
Further, commodity aggregators can accept cash payments using the services of paying agents or under usual agency contracts with points of issue of goods.
Also recently, “secure transaction” services are gaining popularity in the network, which provide for transfers to the supplier directly after fulfilling a number of mandatory transaction conditions. In the latter case, the marketplace or the exchange receives only a commission for providing the service to its account.
Therefore, each case requires a detailed analysis of the actual relations of the marketplace with customers, taking into account its functionality and ways of monetization. If you identify all the signs of the owner of the aggregator in your activity, you should think about changing the legal documentation of the service or changing the commercial scheme of interaction with users.
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