Senegal: The Protection Of Senegalese Consumer In Electronic Commerce

INTRODUCTION

The development of information and communication technology (ICT) has had the corollary of rendering human interaction increasingly virtual. Telecommunication networks¹ more and more frequently enable us to inform and express ourselves, communicate or simply conduct business. The latter has come to be known as electronic commerce or e-commerce for short.

The definition of electronic transactions² is to be found in the wording of article 8 of law 2008-08 of 25 January 2008 as 'economic activity by which a person offers or fulfills, remotely and by electronic means, the supply of goods and services'. It also encompasses 'services such as those that exist to provide information online, commercial communications, research tools/search engines, data access and retrieval, communication network access or information hosting, even if they do not receive payment from their users'³. This somewhat general definition is further refined by article 9 of the aforementioned law which excludes gambling even if in the form of legalised betting or lotteries, as well as the activities of notaries applying legal texts currently in force, and other forms of legal representation and assistance.

E-commerce may be pursued by two means. The first is known as partial or off-line, whereby the contract is concluded electronically but the fulfilment is physical. Conversely in the second, known as total or online, the agreement to terms and conditions as well as the fulfilment are entirely electronic.

The principal actors are businesses, consumers, employees and governments. When companies deal exclusively with each other, it is referred to as 'business to business' or B2B⁴. Where they come into contact with consumers or their own employees, the terms 'business to consumer' (B2C)⁵ or 'business to employee' (B2E)⁶ are used respectively. Where companies are in liaison with government it is known as 'business to government' (B2G)⁷. Of course, consumers also deal with each other – in other words 'consumer to consumer' (C2C) ⁸. However this study will only concern itself with the protection of consumers in their dealings with businesses. Before embarking on this it is necessary to flesh out the notion of the 'consumer'.

In France, in the absence of a legal definition, the task of establishing a working interpretation fell to jurisprudence. At an earlier point the Court of Cassation had embraced an extensive definition including moral persons who are, in relation to the contents of the contract, 'in the same state of ignorance as any other consumer'⁹. In due course the Court adopted a much more restrictive notion which only extended to those who sign a contract having no direct link with their own professional activities¹⁰. In the light of the European Community Court of Justice's¹¹ judgement of 22 November 2001 interpreting article 2, under section (b) of the directive no. 93/13/CEE of the Council of 5 April 1993, concerning abusive clauses in contracts agreed with consumers¹², the French High Court went back on its earlier rulings. This determined that the consumer can only be a physical person¹³ who, outside his/her own business activities, affairs or profession, personally makes a contract with a supplier in the course of his/her professional or commercial activities.

In the legal framework of Senegal, the term 'consumer' appears in article 32 of the law no. 94-63 of 22 August 1994 regarding competition, pricing and economic litigation¹⁴ but there is no elaboration of its meaning. It behove the OHADA legislator via article 203 of the Uniform Act on General Commercial Law to define the consumer as 'any person acting for purposes outside the scope of his/her professional activities'. This rather broad characterisation also encompasses physical and moral persons and matches that of the French Court of Cassation before the intervention of the First Civil Chamber's judgement of 24 November 1993. Despite being open to criticism in terms of the development of jurisprudence, it at least had the merit of guarding against ambiguities and divergences of interpretation. If only for this reason we should lament its omission from the new Uniform Act on General Commercial Law, adopted 15 December 2010 in Lomé ¹⁵. It may have seemed that after Senegalese jurisdictions began enforcing this new text from 16 May 2011, all that remained would be to close any local loopholes.

In point of fact the Senegalese legislature had already been addressing consumer rights issues proactively. The first attempt to frame consumer rights came in the form of law 94-63 of 22 August 1994 on competition, pricing and economic litigation. This text enshrined a duty of loyalty to the consumer to guarantee his/her power and freedom of choice between the product and services on offer¹⁶. In any case, an examination of paragraph 1 of the law which is entitled 'Duty toward the consumer' of Section II focussing on commercial information will quickly give to understand that the protection offered to the consumer is limited by conditions of sale, price and invoicing. It is certainly the reason why it has been deemed appropriate to provide the consumer with additional protection for e-commerce transactions.

The era of consumer law in the digital age was effectively ushered in by law no. 2008-08 of 25 January 2008 relating to electronic transactions, law no. 2008-11 of 25 January 2008 regarding cybercrime¹⁸ and decree no. 2008-718 of 30 June 2008 relating to e-commerce. Whereas the first two texts lay out the essential provisions that are binding on vendors in their dealings with consumers, the cybercrime law outlines the penal sanctions applicable in case of violation of these laws.

In awareness that the vendor with whom the consumer is dealing may not always be based on Senegalese soil, and given that the consumer's lack of experience may cause him/her to accept the imposition of a law that would act to their disadvantage, the Senegalese legislature insisted at an early stage by means of article 12 paragraph 2-1 of the law governing electronic transactions on specifying that the rules of international private law could in no case have the effect or consequence of depriving the consumer of the benefit of the protection afforded by 'the imperative provisions ... of Senegal law relating to contractual obligations'.

Following this it was instituted firstly that there would be a duty of information on the part of the vendor toward the consumer that was distinct from the obligation set out in article 10 of the law on electronic transactions, and secondly a right of retraction for the consumer. In order to avoid the consumer having to meet legal costs, a full contract law resolution was drawn up for circumstances whereby the vendor was unable to fulfill his contractual obligations by dint of the unavailability of the goods or service ordered. This is the import of article 20 paragraph 2 of the e-commerce decree. The duty of information and the right of retraction now deserve further examination.
1- Institution of a special duty of information for the benefit of the consumer.

By means of article 10 of the law governing electronic transactions the Senegalese legislature has placed upon anyl person carrying on electronic commerce an obligation to identify him/herself to the other parties to the contract and to inform them of his/her prices, including a breakdown of all included expenses and taxes. When the other party to the contract is a consumer, a duty of information comes into play additional to that set out above, with regard to its contents and framework.

a- The contents of the duty of information.

The information which must be made available to the consumer is set out by article 24 of the law governing electronic transactions and articles 8,9 and 20 of the e-commerce decree. The information divides into two categories, the first to be presented before formation of the contract and the second in case of breach of contract.

The vendor is bound by the terms of article 8 of the aforementioned decree to put at the disposal of the consumer, before the formation of the contract, all the data allowing the consumer to take issue with the vendor. These are the name of the publisher along with his/her electronic and postal addresses for the purpose of appeals, and his/her telephone and fax particulars. Futhermore, the duty to inform of measures taken to guarantee the protection of the personal data of parties to the contract, as well as conditions relating to the formation of the contract, its term, methods of termination and expenses. Article 24 of the law on electronic transactions specifies the steps to follow and the technical means required to identify and correct errors of data entry and language during the formation of the contract.

Regarding the goods or services on offer in the contract, the essential characteristics of these are to be outlined as well as their price and pricing components such as taxes and expenses, the reference currency, methods of payment and any credit terms made available to the consumer. When the offer is archived, the methods of storage and access should also be specified. Besides this the professional is required to indicate what after-sales service is offered, as well as the terms of the guarantee. The consumer should be informed if he/she has a right of retraction. Where this is not offered, the professional is obliged to make available to the consumer all information relating to methods of use or the equipment necessary to get the best results from the product or service, its approximate download duration and cost if applicable, the methods and conditions of license contract and technical information required for restarting the download if interrupted (article 19 of the decree). The same is true of refund mechanisms as appropriate and consequences connected with accepting the offer without this being confirmed. The consumer should thus be appraised of the professional and commercial regulations with which the vendor must comply.

After prior circulation to the consumer of all the information required, the vendor will then notify the consumer without delay that the contract has been formed – notwithstanding an inability to fulfill on the basis of the goods' or service's unavailability – in compliance with the provisions of article 20 paragraph 2 of the e-commerce decree. The duty of information is identified and framed by the legislature as follows.

b- The framing of the duty of information.

The provisions of article 8 of the e-commerce decree ultimately state that the information that the vendor must provide to the consumer should meet certain criteria. It should be unambiguous, readable and permanently accessible. Article 9 paragraph 2 of the same document adds that the information should be easily obtainable for reprinting.

Furthermore the information should feature on the homepage of the vendor's website, according to the gist of the last paragraph of article 8 of the e-commerce decree. However merely hosting the information on the company's website does not go far enough, because at any point during the transaction it must able to be passed on by whatever means of communication the consumer is using, with due regard however for the regulations addressing the needs of the disabled. Article 10 of the decree insists that a direct channel of communication with the vendor must be open to the consumer at all times, even while the other measures are being put in place.

In case that the vendor denies not comply with the duty of information, the Senegalese legislature has put the burden of proof on the vendor that he/she has provided the consumer with all the required information in a timely manner, and that the consumer has confirmed giving his/her consent.

Failure to abide by duty of information requirements carries a penal sanction in accordance with articles 431-48 of the cybercrime law. In practice, this text indicates that: 'the provisions of articles 431-44 of the present law are enforceable in the event of any breach of the duty of information to the consumer as set out in article 10 of the law on electronic transactions.' Articles 431-44 provide for a penalty of 'between six (6) months' and one (1) year's imprisonment and a fine of between 100,000 and 500,000 CFA, or either one of these two punishments'.

Besides the specific duty of information, the Senegalese legislature has also endowed the consumer with a right of retraction in e-commerce dealings.
2- The enshrinement of a right of retraction for the benefit of the consumer.

A consumer who has concluded a contract by electronic means is granted a right to retract without explanation or penalty within a certain time-window (known as the 'cooling off' period) by article 12 of the e-commerce decree. This mechanism is without doubt the first line of defence under Senegalese law so we will firstly put its provisions into context and secondly examine how it has been implemented.

a- The contents of the right of retraction.

The provisions of article 96 of the COCC¹⁹ indicate that 'a legally drawn up contract forms the basis of an irrevocable link between the parties concerned'. Thereby a person who is committed to a contractual relationship should not walk away unilaterally from his/her obligations without considering the harm that such behaviour may cause. Certain authors²⁰ examining article 1134 of the Civil Code, in the light of the aforementioned article 96 have questioned whether it has undermined the principle of coherence.

This hitherto absolute principle has undergone a certain modification by the introduction of the right of retraction by article 12 of the e-commerce decree. Cornu defines retraction as 'the fact of going back on a previous voluntarily completed act with the aim of destroying its legal effect'²¹. Barrere for his part considered it 'an expression of a current volition that replaces a previous declaration that the individual himself or herself had made.'²². Conversely, Mirabail in his thesis ²³ outlines three features that characterise a right of retraction. Firstly there is the 'unilateralness' of the declaration of will, whereby just one of the parties to the contract expresses a determination to free him/herself from it. Then follows the 'incompatibility' of this unilateral decision with the initially expressed consent. Finally there occurs the 'substitution' whereby the retraction simply effectuates the 'erasure' of the first expression of volition by the second one. In short, the right of retraction may be considered as affording the consumer the facility to unilaterally cancel a contract that had been electronically agreed with a vendor.

It is essential to consider the impact of such a restraint on the principle set out by article 96 of the COCC. The absence of legislation in the draft presentation of the e-commerce decree obliges us to observe the progress of the debate in France. The law of 12/07/1971 on distance learning concerned itself with 'bringing to an end the outrage of canvassing and deceitful publicity, with the objective of protecting vulnerable students from the naked exploitation of their good faith'²⁴. On the same theme, the law of 3/01/1972 regarding financial canvassing sought to 'protect vulnerable savers from the multiplicity of advertisements and new direct marketing techniques'²⁵. Similarly the law of 22/12/1972 regarding direct marketing and doorstep selling aimed to protect the average consumer from canvassers who 'know how to force the door and force a sale'²⁶. In this connection let us also refer to the law of 6/01/1988 regarding distance selling and TV shopping, which attempts to protect the consumer from an distortedly advantageous presentation of the goods ordered, either in the catalogue or on screen²⁷. Finally let us cite the law of 8/07/1998 regarding time-share properties which is dedicated to 'remedying the consequences of the use of dubious marketing techniques by certain agents'²⁸.

The common feature of these various laws which all guarantee the consumer a right of retraction is to morally constrain the vendor from practices that are aggressive or outrageous.

The other reason may be conveyed in this observation by Thyraud: 'The Civil Code concedes that the consent which serves as the basis of the contract may be tainted by deceit or coercion. Furthermore our age is characterised by the existence of another vice of consent that is more subtle – seduction ... it is the duty of the State to protect consumers against their own excesses and rash decisions that may lead to useless purchases that are beyond their financial means'²⁹.

It appears therefore that the right of retraction finds its essence in the need to protect consumers as much from themselves as from the other parties to the contract. Let us now move on to scrutinising how it has been implemented.

b – The implementation of the right of retraction.

This right is conditioned as much by substance as by form and it implies certain consequences.

Regarding the substance, article 15 of the e-commerce decree states that the right of retraction comes into play as long as the consumer has the chance to try out the goods ordered or to use them for a certain period without this instantly fulfilling the contract. In other words, the right of retraction disappears any time that that the contract is completed in one fell swoop and does not make provision for the goods to be tested. The same is true for the terms of article 16 of the same decree, without contrary conventions, for contracts concerning:

the supply of services for which the fulfilment began with the consent of the consumer but prior to the expiry of the right of retraction;
the supply of products created according to instructions which by their very nature may be perishable or easily damaged and therefore impossible to re-use;
the supply of audio or video recordings, or software that has been unsealed or downloaded directly by the consumer;
the supply of newspapers, periodicals or magazines;
goods sold at auction;
insurance policies lasting less than a month;
financial services for which the price depends on financial market fluctuations which may made obsolete during the 'cooling off' period.

The consumer reserves the right to retract if the goods ordered arrive in damaged condition.

Furthermore, the detail of article 12 states ultimately that the retraction may be made by any channel of communication capable of creating a hard copy. In other words, by any medium which may leave a written trace which will stay intact for a long time, as long as the notification occurs within seven working days. In any case, if the vendor has not complied with the special duty to inform as outlined above, the deadline is three months. The caculation of the the deadline for services rendered begins with the signing of the contract for the goods and their receipt by the consumer. Such is the import of article 14 of the decree.

If the consumer exercises his/her right of retraction unaware of the conditions mentioned previously, the responsibility is theirs if the damage arises from their own actions. Nevertheless, in cases whereby the conditions mentioned earlier have been met, the vendor must bear the cost for that part of the price which relates to the service already rendered in effect (article 21 of the decree). The same is true for the direct costs of returning the goods ordered but only if the goods delivered are correct (article 17 of the decree).

For his/her part, the vendor is duty-bound to reimburse the cost and by the same method of payment within a fortnight of receiving notification of the retraction, as well as all sums received in the course of fulfilling the contract, excluding the costs of services already rendered and direct costs of returning the goods. If the deadlines are not met, the amounts to be recredited then attract interest calculated at the prevailing official rates. Furthermore, the vendor exposes himself/herself to a prison sentence of six (6) months to one (1) year and a find of 200,000 – 2 million Francs or either one of these penalties on the basis of articles 431-49 of the cybercrime legislation.

Footnotes

1 A telecommunications network is defined as 'a network of arcs (telecommuication connections) and nodes (switches, routers etc) positioned so that messages can be transmitted from end to the other across multiple connections'. Examples of telecommunications networks include the internet, the world Teletex network, and the terrestrial network of public mobile telephony. See http://fr.wikipedia.org/wiki/R%C3%A9seau_de_t%C3%A9l%C3%A9communications

2 Official gazette of Senegal no. 6406, Saturday 3 May 2008.

3 Article 8, paragraph 2 of law no. 2008-08 of 25 January 2008 regarding electronic transactions.

4-8 Intentionally deleted – English pronunciations transliterated into French

9 Cass 1st civ, 28 April 1987, D. 1988.1 n. Delecbecque, JCP 1987.II.20892 n. Paisant, RTD Civ. 1987, 548, obs. Mestre.

10 Cass 1st civ >24 November 1993, D. 1994 som. com.p. 236 , obs Paisant, Defrénois, 1994 p. 818 obs. D. Mazeaud; Cass 1st civ 21 February 1995, JCP 1995.II.22502, n. Paisant, 5 November 1996 contrats, conc. consom. 1997 n°12.

11 Available at: http://www.clauses-abusives.fr/juris/cjce011122.htm

12 Official gazette L 95, 21 April 1993.

13 Cass 1st civ, 2 April 2009, available from:http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000020484750&fastReqId=417519687&fastPos=2

14 Official gazette 28 August 1994, available at:www.globalcompetitionforum.org/.../senegal/Loi%2094-63.pdf

15 OHADA official gazette no. 23, 15 February 2011

16 Compare with article 32 de la loi n°94-63 du 22 août 1994 sur la concurrence, les prix et le contentieux économique (Senegalese jurisdiction)

17 Official gazette of Senegal no. 6406, Saturday 3 May 2008

18 Official gazette of Senegal no. 6440, Saturday 29 November 2008.

19 Code des Obligations Civiles et Commerciales du Sénégal

20 Fages B, Le comportement du contractant, (no. 592, PUAM 1997); and Stoffel-Munck Ph, L'abus dans le contrat, essai d'une théorie, thèse (no. 99, Aix-Marseille 1999)

21 Capitant H under the direction of Cornu G, Vocabulaire juridique (6th edition, PUF 1996)

22 Mélanges en hommage a Hébraud, La rétraction du juge civil (1981, p1)

23 La rétraction en droit privé français (th 1991, Bdp.t.284, LGDJ 1997, p2 -)

24 Gissinger A, Rapport devant l'Assemblée nationale, J.O. Débats, (Ass Nat, 11/12/1969, p4832)

25 Bas P, Intervention devant l'Assemblée nationale, J.O. Débats, (Sénat, 2/12/1971, p6351)

26 Calais-Auloy J, La loi sur le démarchage à domicile et la protection des consommateurs, (D 1973, Chr, p266); for preparatory studies see for example Chavanac A, Rapport devant le Sénat, J.O. Débats, (Sénat, 4/05/1972, p289 -)

27 See Paisant G, La loi du 6/01/1988 sur les opérations de vente à distance et le " télé-achat ", (JCP 1988 éd G, II, 3350, spéc.n°2)

28 Guigou E, Intervention devant le Sénat, J.O Débats, (Sénat, 23/10/1997, p2991)

29 Rapport devant le Sénat, J.O. Débats, (Sénat, 12/10/1976, p2695, spéc. p2696)

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