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'Overseas purchase' is the key to retaining evidence

by:VIPUTRANS     2020-08-01
The '6.18 E-commerce Consumption Festival' is about to be promoted in the middle of the year, and many e-commerce platforms have launched preferential activities. As consumer demands become more diversified, more and more 'early adopters' consumers have joined the cross-border online shopping force. However, rights protection in online shopping disputes has always been a 'pain point' and difficulty for consumers.

Since the beginning of this year, the number of online service contracts and online tort liability disputes has increased rapidly. In network service contract dispute cases, contradictions such as the protection of users' personal information, the confirmation of the effectiveness of network service contracts, and the responsibility for network service breaches are more prominent. The 'Annual Report on Internet Civil and Commercial Trials by the Fourth Intermediate People's Court of Beijing' recently released reveals the main difficulties encountered by courts in the trial of Internet civil and commercial cases. Among them, the overseas purchase agreement stipulates that an extraterritorial court shall be the competent court, which makes it difficult for consumers to protect their rights.

Judging from the cases accepted by the Beijing Fourth Intermediate People's Court, online shopping contract disputes and online tort liability disputes account for a relatively large proportion. Among them, cases involving imported food accounted for more than 50% of second-instance cases involving food and drugs.

Cheng Hu, vice president of Beijing Fourth Intermediate People's Court, analyzed that in cross-border overseas purchase disputes, the format transaction contract formulated by the platform usually stipulates that both parties of the transaction are consumers and overseas entities. The design of the jurisdiction clause in the contract is also relatively complicated. The jurisdiction clause in the agreement stipulates that the dispute jurisdiction court shall be an extraterritorial court. In this case, once the rights and interests of consumers are damaged, the cost of safeguarding rights is extremely high, which may far exceed the actual losses of consumers.

In addition, Cheng Hu pointed out that electronic contracts and standard terms have the advantages of low cost, high efficiency, and convenient circulation for the party that controls the contract; but for consumers or users, they have the disadvantages of easy deletion and modification, and difficulty in fixing. . “Consumers often do not have the awareness and ability to keep evidence when entering into a transaction contract. After a dispute occurs, it is discovered that the data controller has changed the content of the contract. However, due to factors such as high appraisal costs, it is difficult to submit counter-evidence. Consumers usually face There are many obstacles, and this situation is likely to cause difficulty in finding the facts of the case.' Cheng Hu said.

Judging from judicial practice, on the basis of the principle of “who advocates, who presents evidence”, the court protects the legitimate rights and interests of the disadvantaged consumer through a reasonable allocation of the burden of proof.

“It is necessary to strictly enforce the burden of proof for network service providers to take necessary measures in a timely manner. For some service platforms that have obvious infringement content but have not taken any measures, they shall be determined to bear infringement liability according to law.” Cheng Hu said that in ensuring that network service providers are normal While carrying out platform services, the court reasonably determines the review and supervision responsibilities of network service providers based on the type and nature of platform services provided, as well as the technical capabilities and management difficulty of the platform.

The judge reminded that consumers’ awareness of evidence storage should also be strengthened. If the user does not have preliminary evidence, the identification process is used to restore the original appearance, and there are situations where the identification cost (right protection cost) is higher than the disputed amount of the lawsuit itself (dispute amount). In this case, the user may bear the risk of losing the case. Therefore, consumers should fix the content of the contract through screenshots, screen recordings, etc., when entering into a contract, especially in large-scale transactions.

In addition, there are still some outstanding issues in online shopping disputes. For example, the identification of 'professional claimants' needs to be further unified. Due to insufficient protection of personal information, user information may be leaked due to various reasons. Consumers face business Strong positions often have problems such as 'difficulty in obtaining evidence'. Some network service providers improperly use the 'safe haven' principle to oppose the legitimate rights protection of right holders and evade platform responsibilities.

The court stated that in the next step, it will continue to focus on cracking down on illegal acts that infringe the lives and health of the people in the food and pharmaceutical fields, accurately apply the punitive compensation system, and effectively protect the health and safety interests of the people. Through the guiding role of judicial adjudication, we will further strengthen cyberspace governance, optimize the cyber environment, and maintain cyber security. (Reporter Li Wanxiang)
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