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Op-ed: Strengthening the ACL to protect consumers online

A ban on unfair trading would make the digital market fairer for all Australians.

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Last updated: 13 April 2022

When I visit my local shopping centre to buy groceries, clothes or electronics, I know how to use my consumer rights. I know I can ask for a refund, replacement or repair if the items I've bought are faulty, don't do what was claimed, or don't match the description on the packaging. I know that the business must abide by the Australian Consumer Law (ACL) and I know how to seek a remedy or redress if it doesn't. 

This is all well and good when I'm at the local shops. But it's a whole different ball game when I'm on my phone or laptop, browsing websites or shopping online. Whether I'm navigating a website to cancel a subscription, working out the cost of sending an item back if it's defective, or clicking 'accept all cookies' in order to browse products online, businesses are left to their own devices when it comes to standards of conduct. 

When we're shopping or accessing services online, we expect the same level of protection we have when visiting the local shops. And although these protections do technically exist under the ACL, this law is struggling to keep up with the emerging harmful practices that businesses can employ online. Right now, people have been left behind as they try to navigate the junction of consumer protection, cybersecurity and privacy when entering the digital world. 

The ACL is a formidable force in the consumer protection landscape, but it should be strengthened to deal with the trends we're seeing online.

A good law is one that is able to adapt to changing circumstances and the needs of society. The ACL is a formidable force in the consumer protection landscape, but it should be strengthened to deal with the trends we're seeing online, such as subscription traps and other deceptive practices (sometimes referred to as 'dark patterns') that restrict consumer choice. Deceptive or dark patterns are design tricks on websites or in apps that manipulate or influence people to make certain choices. For example, 'opt-out' buttons that are smaller and less visible than 'accept' buttons or a subscription service that automatically renews after a trial period. 

A ban on unfair trading practices would bring the ACL up to speed with the range of harmful practices we're seeing across the digital economy. It would address practices, such as subscription traps and false consumer reviews, which are oppressive, exploitative or contrary to consumer expectations of fairness in the market. 

There are bans on unfair trading practices in similar markets and countries, including the USA, UK, European Union (EU), Canada and Singapore. The EU's ban describes an unfair practice as one that is "contrary to the requirements of professional diligence and materially distorts the economic behaviour of consumers" by impairing their ability to make an informed decision. What we're seeing in the rise of e-commerce and the growing digitisation of services is the accompanying emergence of unfair online practices that weaken consumers' choices and bargaining power. 

Australians expect fairness both online and offline. The law should uphold that expectation and require it of businesses, no matter where they interact with people – be it through websites or in bricks-and-mortar stores. A ban on unfair trading practices would protect us all from those tricky, deceptive and exploitative practices that cause us frustration and leave us worse off. Best of all, it would create a fairer market for everyone.

Read our submission to the ACCC Digital Platforms Inquiry to learn more about how an unfair trading prohibition can better regulate digital markets.

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