Can the money for "automatic renewal" of the app be refunded? Expert answers of China Consumer Association
2022-06-28
With the integration of mobile Internet into all aspects of public life, app "automatic renewal" service has been criticized in many consumption scenarios. Since September 2021, the difficulty of canceling the automatic renewal of many apps has been exposed by the people's daily and other media, and the Ministry of industry and information technology, the China Consumers' Association and other departments have also notified and requested rectification. However, some apps still play the "edge ball" to varying degrees, and the complaints about such issues on the people's complaint platform have been high. Recently, in a series of interviews with the column "consumption insight" launched by people.com and China Consumer Association, focusing on the theme of "automatic renewal", whether your membership fee can be refunded, guoyaozong, deputy director of the complaint department of China Consumer Association, Luyun, lawyer of the legal corps of China Consumer Association and director of the legal professional committee of consumer rights and interests of Beijing Lawyers Association, answered questions from netizens on the people's complaint platform. It is suspected to be illegal to open automatic renewal by default Some consumers reported that when handling relevant payment services through the app, they signed the automatic deduction function of secret free payment by default and vaguely, resulting in forced automatic renewal. Some consumers also reported that when opening VIP services, they completed automatic deduction and automatic renewal without entering a password, or the page did not clearly indicate that they would automatically deduct fees by year, so they were automatically deducted. According to guoyaozong's analysis, in the first case, the automatic deduction function of secret free payment was signed and opened by default. This seems to be the choice of consumers, but in fact, the operator made the choice for consumers. In the online consumption scenario, many consumers do not read the terms carefully when making decisions. If consumers do not click to agree, they will not be able to proceed to the next step. Therefore, many consumers develop the habit of subconsciously clicking to confirm instead of disagreeing or canceling. For the second case, guoyaozong analyzed that the automatic fee deduction or renewal was completed without entering the password, and the page did not clearly indicate that the annual automatic fee deduction was automatically deducted, which violated the consumers' right to know, the right to choose and the right to property. The first paragraph of Article 8 of the law on the protection of consumers' rights and interests stipulates that consumers have the right to know the true situation of the goods they purchase or the services they receive. In addition, Article 19 of the e-commerce law stipulates that e-commerce operators shall remind consumers of tying goods or services in a prominent way, and shall not take tying goods or services as an option for tacit consent. In addition, Article 17 of the measures for the supervision and administration of online transactions also makes more detailed provisions. In addition to the provisions that consumers should be reminded in a significant way, it also stipulates that any option of tied goods or services shall not be set as default consent, and the option selected by consumers in previous transactions shall not be set as default consent in subsequent independent transactions. "Automatic renewal by default belongs to the tie-in service mentioned in the above laws and regulations. If the operator provides relevant service terms, selects the option of automatic renewal by default, and does not significantly remind consumers, it may involve violations of the e-commerce law and the measures for the supervision and administration of online transactions, and it needs to bear corresponding legal responsibilities." Guoyaozong said. The contract can be terminated if the consumer is not clearly informed before deduction In the process of service, the operator failed to fulfill the obligation of prompt before the expiration, and the consumer was automatically deducted without receiving any advance notice. In addition, the operator only prompted through e-mail or on-site letter, which was generally not noticed by the consumer and did not form an effective prompt. After seeing the consumption bill, the deduction was completed. In this regard, Lu Yun said that in the consumer protection law, there are provisions on consumers' right to know. In judicial practice, the operators will also be judged to bear the corresponding responsibility because they do not fulfill the corresponding obligation to inform. The legislative background is that consumers are often in a relatively weak position when operators and consumers conduct transactions, so operators are required to inform the goods or services they provide when providing relevant goods or services. "If the operator of both parties fails to inform the other party of the major rights and obligations related to the consumer during the transaction, the consumer can claim these terms. I have not noticed that their provisions are not the contents of the contract or the agreement between the two parties. In fact, this is also to ensure that the consumer has a full understanding of the content consumed or the relevant rights and obligations." Luyun said that if the operators do not effectively inform and explain in detail, and remind consumers in a significant way, so that consumers make wrong judgments without knowing or knowing, consumers can claim to terminate the relevant contracts. "The consequence of the termination of the contract is that you can ask the other party to return the goods. Therefore, in the whole operation process, first of all, as a consumer, you should carefully check the relevant terms and contents, especially the pop-up dialog box or the received information. Consumers should carefully check it." Luyun said. "As far as business operators are concerned, they should effectively inform consumers in accordance with the provisions of the law on the protection of consumers' rights and interests and the civil code, and remind consumers in a significant way, so that consumers can make an expression that meets their wishes." Lu Yun emphasized. Operators should follow the principle of fairness in providing standard terms In the process of protecting their rights, many consumers found that some platforms unilaterally stipulated the deduction of fees in advance in the form of standard terms, or stipulated that the deduction was irrevocable, and even appointed specific arbitration committees or courts of specific jurisdiction to resolve disputes. Consumers want to protect their rights, and they have to pay extra board and lodging expenses, travel expenses, high arbitration fees, etc. arising from litigation in different places, which makes it more difficult for consumers to protect their rights. In this case, from the perspective of platforms and operators, how should we constrain them? According to guoyaozong's analysis, the standard terms are generally prepared in advance by the platform for repeated use, and there is no negotiation with consumers when signing the contract. This will help both parties to reduce the time cost of negotiation and improve the efficiency of the transaction. However, if it is not constrained, as the drafter of the standard terms, the platform is easy to take advantage of its dominant position and dominant position, violate the principles of freedom, equality, fairness and justice of contracts, and violate the wishes of consumers, and set the above-mentioned unreasonable conditions, such as the irrevocability of early deduction or deduction, the appointment of arbitration, and the jurisdiction of the court, to damage the rights and interests of consumers. Guoyaozong said that both the civil code and the law on the protection of consumers' rights and interests have clear provisions on the regulation of standard terms, which mainly include two aspects: on the one hand, for matters involving the major interests of consumers, it is necessary to give reasonable prompts to let consumers notice the existence of these terms, rather than later consumers find that there are so many provisions that are detrimental to them; On the other hand, the standard terms provided by the operators should follow the principle of fairness, that is, even if the operators fulfill the obligation of prompt, such as bold or black processing, it does not mean that these standard terms must be effective. If the operator violates the principle of fairness and seriously damages the rights and interests of consumers, the law stipulates that such provisions are also invalid. "In March this year, the Supreme People's Court issued the provisions on Several Issues concerning the application of law in the trial of online consumption dispute cases (I), which clearly stipulates the invalidity of five standard terms, and further restricts operators' use of unfair standard terms to infringe upon consumers' rights and interests. These legal provisions have also formed a relatively perfect standard terms regulation system." Guoyaozong said. Finally, guoyaozong stressed that the law is only a necessary condition, not a sufficient condition, to purify the market environment. In order to truly restrict these behaviors, it is also necessary for the operators as the drafter of the standard terms to enhance their self-discipline awareness and sense of social responsibility. "One hammer trading is not the way of long-term operation. Operators cannot lose the trust of consumers for the sake of small profits. Once the trust of consumers is lost, the platform will have no foundation for survival. (Xinhua News Agency)
Edit：Li Jialang Responsible editor：Mu Mu
Source：chinanews.com
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