Sharia Law and E-commerce Misrepresentation

Chapter 1 - Introduction

1.1. Background

E-commerce is growing exponentially in countries around the world. In the EU there has been a significant rise in e-commerce trade. Saudi Arabia too is witnessing a rise in e-commerce trade over the years. Saudi Arabia bases its laws on the Sharia, which means that laws that are made by the kingdom are based on the principles in the Islamic law as contained in the Sharia. Sharia includes a number of principles that are related to different aspects of human life, such as preservation of religion; preservation of human life; preservation of progeny; and preservation of wealth. There are a number of areas related to finance and commerce that come within the regulation informed by Sharia in Saudi Arabia and indeed other countries as well because the Sharia contains references to contractual and commercial relationships and rights and rights and obligations arising out of the same. In some respects, Sharia is also unique because it provides principles that are peculiar to the Islamic law. For instance, in the context of e-commerce, a fundamental principle in Sharia that relates to protection of rights of online consumers is found in Khiyar al-Tadlis. The Khiyar al-Tadlis is an option of revocation in Sharia law for consumers in case of misrepresentation. In e-commerce contracts, the option of Khiyar al-Tadlis can be applied to establish that the consumer agreed to enter into the contract because of wilful misrepresentation or deceit by the e-seller and this givesunder the Sharia law to revoke the contract. The tadlis refers to misrepresentation while Khiyar is an authority to revoke the contract. Misrepresentation is a ground for revocation of contract under the common law as well. In Islamic countries like Saudi Arabia, there has been an increased interest in considering how Sharia protects the rights of the consumers and whether there are gaps in the Islamic law that need to be addressed. The rise in interest in Sharia laws stems from the significant rise inonline commercial transactions in Islamic countries, which makes it necessary to consider the nature of protection frameworks provided in Sharia Laws and whether such frameworks are adequate for the purpose of protection of consumers. The comparison with the EU laws also is done for the same purpose to assess the kinds of protection offered to consumers in EU law with those in Saudi Arabia under the Sharia law. It is also pertinent to note that e-commerce products and transactions have become increasingly complex with time, which makes the trading through e-marketing susceptible to higher risks for both investors and consumers, thereby increasing the need for legal attention to the area of protection for consumers.

1.2. Research Questions

This dissertation will attempt to explore the following research questions:

Whether EU legislation is effective in protecting and safeguarding e-consumer rights;

Whether Saudi Arabia Law in reference to Sharia is effective in protecting and safeguarding e-consumer rights; and

Whether there are essential differences and commonality between the two sets of law in protecting and safeguarding e-consumer rights.

1.3. Research methodology

This study relates to the comparison of two jurisdictions, the EU and Saudi Arabia in the context of the protection offered to the e-commerce consumers in the two jurisdictions. In order to allow such a comparison, the research design is formulated. There are three aspects of this research design that are important. First, a qualitative research method is applied because the comparison of the two jurisdictions requires an analysis of the laws and policies relating to consumer protection, which would be based on reading and examination of existing literature as well as the lawsand authorities in the form of case laws. A qualitative research design will be useful for conducting an analysis of the EU and the Sharia laws in Saudi Arabia because of the specific focus on content analysis on specific themes like protection of consumers from misrepresentation, fraud, counterfeit products. A qualitative research design also addresses the challenges that are involved in a comparative research of this nature where the laws in one jurisdiction are compared with the other. In this study, a comparison between EU and Sharia laws for e-consumer protection does pose a challenge because the laws are wide ranging and diverse. A qualitative research design is more effective for drawing comparisons between two jurisdictions as instead of formulating hypotheses that may not adequately represent the similarities and differences involved in the law, the researcher only has to draw up research questions. Therefore, instead of testing hypotheses, the researcher is involved in exploring high quality literature to answer the research questions created for the research. The second aspect of the research design adopted for this research is that a comparative legal research method is involved. A comparative research method is involved where two or more jurisdictions are subject matter of the research. In legal research, comparative legal research method is used for collection and analysis of data from different legal jurisdictions. Comparative legal research method can be descriptive or applied; or both methods can be used in the same research study. Descriptive method only relates to description of the variations between two jurisdictions and applied method is a more in depth comparison where the researcher suggests legislative or regulatory framework. In this research study, the descriptive method is followed because the research is limited to identifying the similarities or differences in the EU law and Saudi Arabian law on e-commerce related protection to consumers. Comparative method has been used in legal research for the purpose of comparing two or more jurisdictions’ responses to the same legal questions, the identification of the similarities and dissimilarities in legal or policy responses, and even for improving or suggesting improvements for laws in one jurisdiction based on the other data of the other jurisdiction. For the purpose of this research, the first two objectives are relevant to why comparative research method was chosen for the study.

The comparative legal research was chosen for this study for two reasons. First, for the purpose of enhancing knowledge on how e-commerce related consumer protection is structured in Sharia law of Saudi Arabia and how it compares to the EU law in terms of protecting consumer rights. A comparative study allows the researcher to identify particular issues related to e-commerce and protection of rights of consumers. Second, comparison between Sharia and EU laws will provide insight into how e-consumer protection in two jurisdictions specifically relates to the rights of the consumers. A recent work on consumer protection laws in Saudi Arabia has identified some specific rights related problems in e-commerce law based on Sharia related to information obligation, the right to cancel, and redressal rights of the consumers in e-commerce transactions. The purpose of this research is to provide more insight into such areas of concern with relation to consumer protection for e-commerce transactions. The EU law provides a good comparison point in this regard because it helps to identify the various rights that are recognised in the EU law for the consumers and also helps to identify remedies to the consumers in case of violation of rights within the EU jurisdiction.

1.4. Sources

As this research is based on a qualitative research method, it utilises a doctrinal legal research methodology. The sources from where the data is collected in this research are primary sources and secondary sources. Primary sources in legal research refer to statutes, directives, regulations, legal frameworks, case laws, and reports. Secondary sources refer to literature contained in journal articles, books, and institutional reports related to the topic under discussion. Since the methodology adopted by this research is doctrinal and also utilises comparative and critical approaches, the purpose of this research is to identify and analyse legal and factual issues related to e-commerce protection in the EU law as well as Sharia laws in Saudi Arabia. Data in this research is collected from primary (legislation, case law, EU law) and secondary sources (books, journals, reports). Commentaries and government reports that have significance to the research question are also included in data sources. By applying a qualitative research design, an in-depth analysis of Sharia and EU law on consumer protection in e-commerce cases is conducted.

1.5. Challenges and ethical concerns

As two different jurisdictions are selected for comparative analysis in this research, there are certain challenges that are posed in the study. First of all, comparing jurisdictions with such different jurisprudence poses the challenge of adoption of a research methodology that can help the researcher to draw out all similarities and differences with context of e-consumer protection. In other words, comparison of two jurisdictions that are different from each other is challenging because of the conceptual and contextual differences in the laws that may not allow the researcher to analyse and compare the laws only for the purpose of deciding which law is better. As comparative research is essentially focussed on comparing and juxtaposing two systems of law, the question as to the standard to be applied for executing such comparison is relevant. However, it is possible to compare two jurisdictions by adopting an open- ended methodology and using direct investigation and analysis of data from two jurisdictions to draw out the obvious similarities and differences. Another challenge for a comparative legal research is to also consider cultural differences while considering the laws of the two jurisdictions. Cultural differences can lead to researchers ignoring differentiating facts that can lead to the identification of drawbacks of the one’s own law. Cultural differences can also lead to misconceptions and misleading results for the comparative researcher. The researcher can address this challenge by using ‘cultural immersion’ and ‘organic method’ for conceptualising the items of comparison. In the case of Sharia law, the law is derived from the religious texts. As such, there is a strong cultural aspect of the law that is based on the Sharia. On the other hand, the EU laws have evolved over a period of time, wherein harmonisation of the law has been done. As such, the two jurisdictions represent diversely different background. In order to ensure that the interpretation of the two systems is not subject to cultural misunderstanding and error, the researcher has chosen to keep intact the explanations on e-commerce in the legal systems; that is, the conceptualisation of the legal concepts in each legal system is intact and taken as it is. The ethical concerns in this research mainly revolve around two issues: academic honesty and interpretation of religious law. With regard to the former, all efforts have been made to present the findings based on fully referenced data. Citations are given in a proper referencing style throughout the work. With regard to the second issue, that is, interpretation of religious law, as far as possible, the researcher has used respected and regarded translations of the Sharia principles wherever applicable throughout the work.

1.6. Chapterisation

In addition to this Chapter 1, this dissertation will have the following chapters:

Chapter 2 will explore the concepts of E-commerce law in Saudi Arabia and European Union. It will conduct a literature review of the concepts and the legal principles governing e-commerce in relevance to consumer protection. This chapter will be sub-divided into two sections. The first sub-section will assess e-commerce laws in Saudi Arabia. It will attempt to understand Sharia vis-à-vis contract law. This section further discusses existing e-commerce law in Saudi Arabia drawing its basis and relevance to the principles under Sharia. While doing so, this section will discuss certain important legal aspects governing consumer protection in the sphere of e-commerce contractual transaction. It will discuss aspects such as the duty of seller to be transparent. It will discuss principle of Khiyar al-Tadlis, which is a remedy available to consumers for revoking contract. It will briefly discuss the regulatory body under the Saudi Arabia law. This section will discuss certain aspects of Saudi Arabia law to highlight any certain gaps, if there are, in the e-commerce laws. Under Chapter 2, the second sub-section of Chapter 2 will assess e-commerce laws in the European Union. This section will cite and discuss various EU Directives that govern the rights of the consumers and the responsibility and liabilities of the sellers or manufacturers. This section will discuss certain legal aspects of the EU laws, including right of the consumers of information from the sellers to make informed decision. This section will discuss the mechanism in place made by the EU law exploring the implementation of consumer protection policy measures. It will discuss consumer protection laws from the perspective of product safety, defect and liability. This section will explore the remedies are available, how they are implemented and enforced and any limitation in the EU laws to that effect.

Chapter 3 will conduct a comparative analysis between the two sets of law. It will compare Saudi Arabia and EU e-commerce law regarding consumer protection to explore any overlapping or different provisions. This section will explore the law that could be amended, added or remove in order to highlight the most effective provision that could offer better consumer protection. Chapter 4 will conclude this dissertation by providing a summary and findings of the research.

Chapter 2 – Concepts of E-commerce law in Saudi Arabia and European Union – A comparative literature review

2.1. Assessment of the e-commerce laws in Saudi Arabia

The Sharia law is said to be stricter if the consumer is not dealt with fairly. Arguably so, many Islamic countries do not derive all of consumer protection rules from the Sharia itself. Nevertheless, law in Saudi Arabia is guided by and based on the Sharia. Sharia Law in Saudi Arabia provides support to consumers by protecting their interests even though Saudi Arabian legal structure has some gaps specific to consumer protection in the field of data protection. However, Saudi Arabia does protect the confidentiality of the consumers by ensuring that all correspondence and communication between parties are treated as confidential. This section will explore the Sharia law to understand notion of contractual relationship in general and assess e-commerce laws in Saudi Arabia.

2.1.1. Understanding Sharia vis-à-vis contract law

Islamic law is contained in the Sharia and it is important to first gain an understanding of the Sharia and the sources and schools of Islamic law, even if briefly because that will show how Sharia is different from the EU law. Saudi Arabia follows the Sharia in its law and all of the law in Saudi Arabia has to be compliant with the Sharia; moreover, the Hanbali school, believed to be the most orthodox, is also prevalent in Saudi Arabia. The Basic Law of Saudi Arabia, which is the constitutional law of the kingdom, was enacted in 1992 and it derives its legitimacy from the interpretation of Sharia; consequently, the rights of citizens are also governed by the 1992 Basic Law. The Basic Law of Governance clearly states that the Quran (the Islamic holy book) and the Sunna (the traditions of the Prophet) are the fundamental principles of law and are to be followed by all law of the kingdom. Article 8 of the Basic Law provides that the system of governance is based on justice, consultation and equality as per the principles declared by the Sharia. Clearly, the Saudi Arabian law is based on the Sharia and all formal institutions, including those related to commerce and contract are based on the Sharia. Islamic law has multiple sources that have to be applied in the order of precedence with the Quran, Sunnah, Ijma or consensus of jurists, and guidance. Wherever Islamic law is to be applied, it is to be applied in this order so that the sources are applied in precedential order. The Quran is to be referred first, and then the Sunnah and the Ijma; the guidance can be applied only if the previous three sources cannot provide an answer to an issue.The Qur'an and Sunnah are the two primary sources of Islamic law. The Qur'an is the holy scripture of Islam, and it contains the direct word of God in the words of Prophet Muhammad. Sunnah contains the actions and quotations of the Prophet Muhammad and his “sayings, deeds and tacit approvals on different issues, both spiritual and temporal.” The Sharia in itself is comprised of the Qur’ān and Sunnah. The Sharia means the ‘the right way’ or “the corpus of general principles of Islamic law extracted from its two fundamental sources, the Qur’an and the Sunnah and other sources”. Sunnah further explains the principles of the Quran, which includes principles of law or rules related to commercial transactions. Sunnah also guides people to follow a certain set of rules through their deeds and their conduct.Importantly, Sunnah is not rigid and can be used to cover emerging areas of human conduct including in the commercial area.Sunnah lays down specific legal rules like rules of inheritance and other criminal rules. The general law obligations in the Saudi Arabian laws are different from the Western concepts; this can be seen in the law related to contract, which is governed by the Sharia law and not the common law or the civil law as is seen in EU countries. Under the Sharia law, a contract is formed by the coming together of two concepts: a positive proposal (īğāb) and an acceptance (qabūl) as between two parties. The principles are similar to western concepts in that it is required that for an acceptance to be valid, it must be adequately expressed. However, there are some significant differences between the Islamic and western precepts of contract and Sharia law contracts are not the same as the western contracts; the significant differences are with reference to the western emphasis on technicalities. Sharia does not treat concepts of consideration and agreement in the same way as western law of contract. An agreement for instance, can be formed without consent by the other party so that the legally binding contract comes into effect unilaterally. Consideration may also not be required in Sharia contracts of all kinds because there are contracts recognised by the Sharia even without consideration between the contracting parties. In the Sharia, the emphasis is on the ethical and not just the legal while the EU concepts of contract emphasises on the legal aspects. The Sharia expects every Muslim to abide by the ethical principles even in commercial dealings. The legal concepts of Sharia with respect to the e-commerce contracts are based on the ethical notions involved in the Sharia. The emphasis on the ethical principles in the Sharia is derived from the fact that it is a religious and moral code for Muslims. Sharia contains ethical principles because it is considered to be the pathway towards God and it contains legal principles because it has a set of rules that are binding for the Muslims both in their private and public life. Therefore, contracts made in e-commerce are legal based on the content of the contract, the establishment of the intention of the parties to be in a legally binding contract, the capacity of parties, the object of sale and consideration, and agreement. These elements are required to establish a contract in an e-commerce setting.

Unlike the western concept of freedom to contract, the Sharia does not permit freedom of contract in the same sense while it does allow a significant degree of autonomy to the parties to select the kind of contract they wish to enter upon. Contract of sale in Sharia can relate to exchange of immovable or movable goods which is similar to western law. However, there is generally no requirement to sign documents for entering into commercial transactions as is seen in the EU countries where contractual formalities may sometimes be mandatory for valid contract. Oral contracts are also binding in the Sharia. Even silence by one party may be taken as an expression of consent if the evidence suggests that parties intended to conclude the agreement. The emphasis is again on the acceptance of the proposal and the will of the parties. Parties may even signify their acceptance to the proposal by conduct or by documentation like a receipt, or by a signal. In the case of a contract for sale of goods, if one party takes into their possession the goods, then Sharia treats such contract as enforceable (tāmm). Thus, two parties may show that they are bound by the contract if they do a reciprocal exchange of goods. It would not be correct to think that Sharia is uniformly understood and applied in all schools of Islam as pointed out by Mancuso. Sharia law is specific to sect and schools and cannot always be seen to be applied in the same way across all Islamic countries has identified significant differences between the different schools of thought applied in Islam. At the same time, all schools of Islam recognise contracts even if they are not signed or written as the validity of the agreement is based on the full consent from the parties and express statement of their will to be bound by the contract with each other. The acceptance of e-commerce contracts is also based on the same principles of Sharia that are related to the contracts wherein e-commerce contracts may be considered to be an exchange of a property by one party with the other for profit. At the same time, the Sharia will protect the interests and rights of the parties involved in the e-contract in the same way as is done for traditional contracts under the Sharia.As long as the e-contracts reflect the consent of both parties and also show that the parties have entered into the consent willingly and with fill awareness of the contract that they are entering into, the Sharia will recognise and protect the contract made under e-commerce.

2.1.2. E-commerce law in Saudi Arabia

The e-commerce law in Saudi Arabia is of very recent origin. Saudi Arabia took the first steps towards codification of the e-commerce laws in 2007 with the proclamation of the Royal Decree No M/18 in 2007, which laid down the Electronic Transaction law and then the reforms took place in the Electronic Transaction Law in 2008. The government of KSA adopted the law in late 2019. The law is entitled Implementing Regulations of the E-commerce Law, and it came into effect in early 2020. The stated objectives of the law are to increase confidence in e-commerce transactions; provide consumers protections against fraud, deception and misinformation; and boost e-commerce activities. The regulations apply to commercial transactions between service providers and consumers in online environments and govern transactions within the country as well as to transactions that involve service providers located outside the country but with consumers within the country. E-commerce indicates activities of commercial nature that are either entirely or partially conducted through electronic means. Even advertising for products and services through online means can come within the scope of the regulations. As aware, Saudi Arabia is guided by and based on the Sharia. Sharia Law in Saudi Arabia provides support to consumers. Sharia is an important aspect of how e-commerce laws are made in countries like Saudi Arabia because laws have to be compliant with the Sharia. There is however also a social objective that is fulfilled by laws being in line with the Sharia; research suggests that among Muslim consumers there is at times reluctance to partake in e-commerce systems unless there is Sharia compliance, which relates to e-commerce vendor trustworthiness factors including integrity, benevolence, competence, website quality, and third-party assurance. The first question is whether Sharia permits e-commerce or whether there are objections to e-commerce that are based on the Sharia. There is some discussion in literature on the question of whether e-commerce is acceptable under Sharia and what if any rights of consumers can be linked to the principles of Sharia. It is believed that there is no conflict between e-commerce and Sharia principles as such and that Sharia principles can be applied to e-commerce in the same way as they are applied to conventional commerce. Quranic verse 62:10 goes on to provide that all kinds of human activity are permitted so long as they do not contradict the principles of the Sharia. Based on the same principles in the Sharia, rights and interests of the consumers in e-commerce transactions can be derived. This section will explore principles of consumer protection under Saudi Arabian laws with specific relevance to Sharia.

2.1.2.1. Duty of seller to be transparent

In e-commerce contexts, these rights can be related to the duty of the seller to provide honest information about the product and to provide the products to the consumer as per the information given. Thus, consumer rights as per the Sharia principles can be related to their rights to data protection and privacy and security; rights to know the correct details of a product and the producer; and rights to compensation and recovery in case of goods not sold as per description or quality standards. The 2020 Implementing Regulations of the E-commerce Law reflects these principles of Sharia. Under the new regulation, the e-commerce service providers are bound by certain obligations under the new regulations. These include disclosure requirements wherein the service providers are required to disclose their identifying information and contact details and characteristics of goods sold or services provided. An important principle in the Sharia is regarding the rights and interests of consumers in e-commerce transactions related to the concept of welfare of individuals as a concern in situations involving accumulation of wealth. Based on the same principles, it can be said that individuals have the right to accurate information about the products being advertised by the seller on online platforms, convenience of dealing, cost effectiveness, and other such rights that would be central to the consumer experience with e-commerce in an honest and secure environment. The right of consumers to information about the products or services is also reflected in Sharia. Sharia imposes duties on the sellers, which is more of a moral obligation. It may find it difficult to find responses to challenges produced by E-commerce. Sharia does not apparently prohibit e-commerce. It is understandable since the difference between traditional contracts and e-commerce contracts is simply the medium through which contracts are formed. In traditional contracts, the medium is through face to face negotiations in general, whereas in e-commerce, contracts are formed in a virtual world. The other elements of the contract remain the same for both traditional and online contracts. Moral obligations of sellers under Sharia comprise two concepts, permissibility and harmlessness. Permissibility relates to the commodities or services which the seller is offering and the requirement that these should not be prohibited under the Sharia. The concept of haram is applicable here, which relates to prohibited acts under Islam. If commodities or services are haram or prohibited under Islam, then such e-commerce transactions shall not be accepted under the Sharia. Harmlessness relates to safety and security related to the transaction. This means that the commodity or service that the seller is offering in online environment should not be unsafe or put the buyer at risk. Sharia principles enjoin on the parties to the commercial dealings the duty to act with honesty and the seller is under a duty to inform the buyer of any risks that may be associated with the commodity or services offered by them. As is also required under the new regulation of Saudi Arabia, the element of honesty as provided under Sharia requires the seller to give all relevant information about the commodity or services in an honest way. This can go to the validity of the transaction. If the seller fails to give all information, then the transaction itself may be invalid. Clarity and transparency has to be ensured in any communication from the seller. In online environments, information about products is also given through pictures of the products and the seller is required to put up photographs that represent the product offered accurately. Failure to do so would lead to the consent of the buyer being vitiated. Other details and specifications of the product have also to be provided honestly by the seller. Interestingly, Islam may also require that the prices at which the products are offered are fair because Sharia principles require that commercial transactions must be mutually beneficial. As per the new regulation, apart from information about the products or services, the service providers are also required to provide their privacy policy. Data privacy is an important aspect of the E-Commerce law in Saudi Arabia. The service provider is not allowed to keep personal information of consumers except for facilitating the transactions. Therefore, the law allows the service provider to keep the information of the consumer for a limited period of time and after this period is lapsed, the service provider would require explicit consent of a consumer for retaining this information; all of this is to be provided in the privacy policy of the service provider. Therefore, the customer’s personal data is also subject to protection under the new regulations. The service provider is under an obligation to protect the personal data from access, disclosure, alteration or illegitimate processing. There are limits for how long the service provider can retain the consumer’s personal and electronic communication data. Prior consent of the consumer is required for the use of personal data for marketing purposes. Any breach of the service provider portal due to hacking, which leads to the compromising of the consumer information, has to be reported to the MoCI within three days of the breach.

An important provision in the new regulations is related to electronic advertisements being considered to be of contractual nature, and binding on all parties. The regulations provide that the electronic advertisement must contain details on the product and a clear statement that it is an advertisement. Furthermore, it is provided that the electronic advertisement must not contain any false or deceiving offer, statement, or trademark. This requirement of transparency, while sellers conduct advertisement, could be stated to be a reflection of Sharia’s principle of honesty and ethics. The element of honesty is only relevant to the validity of e-commerce transactions. It is also related to the business ethics involved in such transactions. Ethics is an important aspect of validity of e-commerce in Sharia. Deception or misrepresentation are not just ethically wrong actions on the part of the seller in online transactions, they have legal implications. E-commerce transactions can be prone to such deception because the transactions are taking place in online environments; advertisements in online environments can be made by concealing or exaggerating facts and there is room for ambiguity in such transactions. Due to these conditions of the online environments, it is possible for sellers to provide deceptive information, like using pictures of original products to sell counterfeit products in online markets; this exposes the consumers to certain risks when they are purchasing products in online transactions. Sharia principles are used to reduce the effect of such risks by providing legal remedies to consumers who have been exposed to fraudulent and misleading contracts. Sharia strictly forbids deceit and misrepresentation in commercial dealings by providing a list of fraudulent transactions that are forbidden under the Sharia. Such actions include mixing or adding of goods so that there is a change in the product or the product is replaced by an inferior one. Sellers are prohibited from increasing the weight of goods like jewellery through such mixing or to improve the quality of spoiled or low-quality goods by mixing these with high quality goods.Sharia bars uncertainty in dealings (gharar) and for that purpose ambiguous speculations and conditions are prohibited. Sharia requires that commercial dealings are made with mutual consent of the parties. This mutual consent is to be free consent and should allow cancellation of the transaction on the grounds of fraud, misrepresentation, or undue influence. Transactions related to uncertain or non-existent goods are not allowed under Sharia because the consumers should not be exploited by the seller who may use the practice of uncertain transactions for making wealth. Selling fake products and diluted products are also forbidden under Sharia because the consumers are subjected to misleading information about the products which means that any consent given by the consumer under the circumstances is not free and informed. E-commerce law in Saudi Arabia recognises these elements of buyers to be free from deception or misrepresentation, which dilutes exercise of free consent by the buyers. Negotiations cannot really be conducted in e-contracts in the same way as it is done in traditional contracts. In E-commerce context, the interaction is between the consumer and an e-platform and not the consumer and the service provider directly. In e-commerce contract, the consumer has the right to make rectification at the implementation stage. This means that the law allows the consumer to amend an e-contract as per the mechanism provided by the service provider or the time frame prescribed by regulations. The service provider is required to provide a short time period for consumer to rectify a mistake during implementation stage and through any form of convenient electronic means. This protection of consumers is reflected in the principle of Sharia that prohibits uncertain dealings that are based on ambiguous speculations and conditions. The two main conditions which the Sharia has emphasised for making transactions involve the mutual consent of the parties and cancellation of the transaction if there are signs of any fraudulent misrepresentation, or pressure on the consumer. This is why transactions are prohibited in Sharia regarding uncertain or non-existent goods. This is prohibited because such practices may lead one party to acquire a mass of wealth, while the other (the consumers) is exploited. This can particularly be understood using the example of fruits. Another example of such protection against fake products and fraud is selling diluted milk products.

2.1.2.2. Khiyar al-Tadlis

Protection of consumers could be found in the Sharia’s principle of Khiyar al-Tadlis, which is an option of revocation. This is one of the important concepts in Sharia with reference to e-commerce and consumer. It is the fundamental principle in Sharia relating to protection of rights of online consumers. The Khiyar al-Tadlis is an option of revocation in Sharia law for consumers in case of misrepresentation. In e-commerce contracts, the option of Khiyar al-Tadlis can be applied to establish that the consumer agreed to enter into the contract because of wilful misrepresentation or deceit by the e-seller and this gives under the Sharia law to revoke the contract. Khiyar al-Tadlis is an Islamic legal mechanism that can be invoked by e-consumers who can establish loss suffered in online transactions. The concept arises from the Islamic law of contracts and it allows the consumer to revoke contract or collect damages (arsh). The option comes into effect in case of deceit or misrepresentation, therefore it can be said that the consumer is able to exercise this option only in the cases of deceit or misrepresentation and not otherwise. The option is proved by the authority of Hadiths and under the Holy Qur’an, wherein it relates to trading, civil transactions and contract. The requirement of being honest in transactions has been provided in the Hadith No. 996, which notes that the “the seller and the buyer have the right to keep or return goods as long as they have not parted or till they part; and if both the parties spoke the truth and described the defects and qualities (of the goods), then they would be blessed in their transactions, and if they told lies or hid something, then the blessings of their transactions would be lost”. Hadith No. 1008 provides that there should be no cheating at the time of buying. These principles seek to protect an honest purchaser and they are a part of the Sharia as reflected in the examples from the hadith. It can be said that the hadith clearly requires protection for the honest buyer and this can be seen as the basis for laws in Islamic countries to protect purchasers in online environments. Tadlis refers to misrepresentation while Khiyaris an authority to revoke the contract. Misrepresentation is a ground for revocation of contract under the common law as well. First, the concept of Tadlisis discussed. The literal meaning of Tadlis is “darkness and fraud”, which translates to concealing a defect in Islamic law of contract. Tadlis occurs when one party to the contract creates an untrue or misleading idea in the mind of the other. Misrepresentation has implications incriminal law and civil law. In civil law, Tadlisallows option of revocation. The EU law also has law on misrepresentation that is used to protect the rights of the consumers; this option requires that three elements be satisfied for the application of misrepresentation these beingproof of a false statement,made directly to the consumer, and made with the intention of inducing the consumer to enter into the e-contract. In some ways, the EU concept of misrepresentation may be similar to Khiyar al-Tadlisbecause the latter is also invoked to provide recourse to the innocent buyer who has entered into the contract because of deceit and misrepresentation.

The Khiyar al-Tadlis principle is significant because it is applicable to online contracts and preservation of e-consumer rights. E-consumers can recover losses incurred in online transactions by applying this option so that they can either revoke their contracts or obtain compensation for their loss. It would be important to define misrepresentation and deceit according to the Islamic principle of Khiyar al-Tadlis, which may be different from how misrepresentation is defined in the EU law. In the law related to e-commerce, the Khiyar al-Tadlis application would require that the consumer establishes that their agreement was gained deceitfully or as a result of misrepresentation by the seller. The principle of Khiyar al-Tadlis could be stated to be incorporated in the new regulations of Saudi Arabia. The new regulations provide consumers with the right to terminate the agreements and return products. Under this right, the consumer can terminate the agreement and obtain a full refund within seven days following the date of receipt of products. The consumer has to establish that they have not benefitted from or obtained any advantage from the products or services. The rights of the consumer are balanced with the interests of the seller or service provider. Thus, a consumer is not permitted to terminate the agreement or receive a refund in case the product is made to the consumer’s request and specifications; this does not apply if the product is defective or not as per the specifications. There are limitations to the consumer being able to return goods that are in the nature of videotapes, CDs, DVDs, digital programs, newspapers, magazines, publications, and books. Consumer does not get the right to return the products if the defect is caused by them or the product cannot be resold for health reasons or if the product combined different elements and cannot be returned to its original condition. Products sold at public auction are not returnable. Similarly, there are restrictions on how far the consumer can get a refund for products whose price fluctuation is not controlled by the service provider, such as gold and silver. Consumers are protected in case of delay in delivery of goods and services other than cases where delay is caused by force majeure. In cases of delay of more than 15 days, the consumer has the right to terminate the agreement and recover the payment made as well as the costs incurred by the delay. The new regulations also impose sanctions on online platforms or e-commerce service providers who are not compliant with the E-commerce Law and Implementing Regulations. The sanctions can extend to a total or partial banor warning or fine of up to one million Saudi Arabian Riyals (SAR 1,000,000). The e-commerce seller can also be suspended on temporary or permanent basis. A transaction between the consumer and the e-commerce merchant is essentially a contract in the eyes of the law. As such, the new law seeks to protect the rights of the consumer by requiring that e-commerce merchants inform the consumer about the terms and conditions of the contract; the steps required to conclude the contract; a correct description of the goods or services; and other details pertinent to the contract including the price, fees, payment mode, delivery information, and warranties related to the product or service being provided by the merchant.

2.1.2.3. Regulatory body

For new e-commerce regulations constitute a three-member Committee, including a member from law background. The function of the committee is to review violations of the e-commerce law on any cases referred to them by the Minister of Commerce and Investment for taking interim action. The sanctions under the law discussed above are in the power of the committee to impose on the service provider. The Administrative Court of First Instance hears the appeals in the decisions taken by the committee. The new regulations also impose a number of obligations on platforms that act as intermediaries between service providers and consumers.

2.1.2.4. Certain gaps in the e-commerce laws

There are many important issues that are pertinent to consumer protection and relate to e-commerce trade; including possibilities of risk to security of credentials and economic losses caused by fake marketing; misrepresentation in advertisement or product information, contract formation; counterfeit products. However, the Saudi Arabian law is still in the developing stages. There are still some gaps in the Saudi Arabian legal structure for consumer protection, related specifically to data protection. For example, Saudi Arabia does protect the confidentiality of the consumers by ensuring that all correspondence and communication between parties are treated as confidential. The issue of data protection law has relevance to the e-commerce transactions specifically, electronic privacy. This has been on the agenda of the Saudi Arabian government for some time now. This is due to the proliferation of the internet based systems of communication and commerce that have posed certain risks to the individuals. However, specific data protection law is not as yet enacted in the country but the Basic Law of 1992 is relevant to the issue of data protection. There is a guarantee in the Basic Law to privacy as a right including to the privacy of telegraphic, postal and other types of communication. This would then cover the communications between seller and buyer in e-commerce transactions as well. In Saudi Arabian context, the lack of legal regulation and laws for the protection of consumers in e-commerce transactions has been pointed out in literature. Indeed, the lack of developed e-commerce law is considered to be one of the inhibitors for e-commerce development in Saudi Arabia. There was not adequate government involvement to support and promote development of online commerce specifically in the context of regulation, legislation, and trusted infrastructure for secure payment and delivery. As of 2011, there was little to no regulatory framework to address the issues of consumer protection in Saudi Arabian law. Saudi Arabian government has taken steps towards the formulation of e-commerce law in recent times, which makes this study particularly relevant because the law is new and not much research has been done on the law or to compare it with other jurisdictions. The e-commerce law in Saudi Arabia was formulated in the form of regulations in late 2019 and came into effect in 2020. As this is a new law, there is little analysis on the rights that are protected under this law. As all laws in Saudi Arabia have to be compliant with the Sharia. This means that there are two aspects of the new law that are interesting and relevant and deserve further analysis. First, the way in which the law links to the Sharia and which principles of the Sharia (if any) are provided in the law. Second, the ways in which the new law protects the consumer rights in the context of e-commerce transactions. The lack of government support in Saudi Arabia as reflected in the lack of law for e-commerce consumer protection, is one of the themes in literature. The legal and regulations support is found to be the most significant institutional determinant of adoption and institutionalization of e-commerce in Saudi Arabia with research showing that the lack of adequate legal protection for online transactions, existence of unclear business laws, and security and privacy concerns that were not addressed in the laws led to need for establishing a broad legal and institutional framework for e-commerce and protection of consumers. On the other hand, it has been reported that the Saudi regulation (prior to 2019 regulations) was adequate for protecting the interests of the service providers. Since the enactment of the e-commerce law in Saudi Arabia, the government has already taken action against 44 online stores for violating the provisions of the new law. The actions taken by the government against the online stores as well as the reasons why these actions were taken can provide an insight into how the new law is being used in the country. The data shows that that 5 of the e-commerce websites were blocked by the government immediately after the violations were reported against them and the matter was referred to the Violation Review Committee. Furthermore, the Ministry has issued warnings to all consumers against buying from anonymous websites and accounts on social media, and only purchase from the commercial registry or those that are registered with the “Maarouf” platform or internationally known websites. This is done for the purpose of ensuring that the consumers are able to discern the difference between those websites that are safe for them to transact on and those that are not.

One of the laws that is relevant to the e-commerce sector in Saudi Arabia is the E-Shops Authentication Authority. One gap with respect to the previous protections offered under the law was that while the government required that e-commerce sellers register with the government, there was no minimum capital outlay and only some requirements are provided around delivery and return of product and to prevent fraud and deception. One of the questions is whether this gap is addressed by the current law and regulations on e-commerce. Under the new law, those e-commerce platforms that are not registered with the government have to identify their place of business, and clarify their data through their online store to ensure the protection of consumer data and privacy. The law also provides that the place of business is not determined based solely on the location of the supporting technology including servers or on the use of a domain name with a particular country-code extension. Moreover, irrespective of where the e-commerce seller is situated, they have to provide to the customer an invoice in Arabic for each order, including the price per item, the total price, the delivery date, the taxes information.

2.2. Assessment of the e-commerce laws in the EU

E-commerce contracts are conducted electronically. They take the shape of distance contracts. The term ‘distance contract’ means a contract that concerns goods or services entered between a supplier and a consumer through an organised distance sales or a service provision framework managed by the supplier. The supplier uses exclusive means of distance communication until the contract is concluded with the consumer. This section will explore how EU laws provide consumers protection against unsafe products, misleading advertising, and unfair contractual terms. They have laid down various mechanisms comprising directives and other laws and local and national regulations. There are both government and private authorities that could enforce the applicable laws and provide services to the consumers.

2.2.1. Informed decision of consumers.

J.K Winn explored the need for and efficiency of disclosure regulation ensuring suppliers disclose information to the consumer. Winn observes that the element of availability of information has produced an imbalance between the various terms related to specific products. This is detrimental to consumers’ ability to gain a stronger position in marketplace. For example, it is the lender and not the burrower who will exactly know the default rate applicable to a specific group of persons to which the burrower belongs. The burrower may, thus, not be able to apply the appropriate default rate as good as how the lender could do so. The reason is that the lender has exact or more information than the burrower, which is detrimental to the interest of the burrower. Rubin observes that the apparent imbalance between the parties in regard to availability of information can lead to diminishing efficiency between parties. Another example to highlight this problem is that a trader will have access to greater knowledge of product quality and the value depreciation than that of the consumer. Consumer will not be aware of information and may end up spending more than the actual worth of the product. Such imbalance weakens one’s position and strengthens that of the other. This section will explore whether EU laws and directives are able to deal with such imbalance and the kinds of protection they provide to consumers. In the European context, there are European Directives that govern e-commerce and provide for safeguards of application of the Directives on such distance contracts. For example, Directive 93/13/EEC, 1993 governs unfair terms in consumer contracts. Article 3 provides that any term that is not individually negotiated is treated unfair. Such term is contrary to requirement of good faith, and may cause imbalance in the contractual rights and obligations. Such imbalance causes detriments to the consumer. Likewise, Directive 85/577/EEC, 1985 also provides consumer protection under its Articles 3, 4 and 5. The protection is with regard to contracts that are negotiated away from the business premises. This will impose special duties of the supplier of products and services to provide information to the consumers. It provides for the right of consumers to withdraw from the contract. EU laws provides for giving full liberty to the consumer including their right to be aware and make informed decision while entering into an agreement. Thus, in case of electronic consumer contracts there is generally an absence of negotiation in the form of standard and non-modifiable contractual terms, against which the consumers give a simple assent. In such case, the consumers are provided protection in the form of option to reconsider the contract they are entering. The European Directive 97/7/EEC, 1997 provides this protection in the field of distance contracts. Recently, EU introduced the EU Consumer Rights Directive in 2014. This was implemented in the UK through the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013 and consolidated under the Consumer Rights Act 2015. The regulation was to ensure negotiating power of the consumers to put them on similar position with the consumers who purchase in person. However, the regulation is far from providing for substantive information about concerned transactions. For example, it does not provide for core characteristics of goods or services or digital content, prices, payment and delivery mode, or consumer’s right to cancel. The regulation provides for cancellation rights. It strengthens and clarifies their statutory rights regarding online contractual transactions. It also provides that if the contract otherwise agrees, the consumers bear the cost of returning products. This, however, has the potential of placing the consumers at detrimental position. In case on online contractual transactions, a standard form of contract is mostly followed by the retailers. This reduces the chances of consumers to bargain. In such situation, even if the directives or the law provides the consumers right to amend the contract, the online practice of sale will reduce the chances of consumer seeking an opportunity to disagree and propose amendments to the contract. Directives of European Union are shown to focus on rights of consumers to information from the service provider or seller. The law with reference to electronic contracts was specifically provided in the European Directive 2000/31/EEC of 8 June 2000 on electronic commerce. This Directive was a legal framework for electronic commerce which also provided for protection of consumer rights. Some of the provisions of this Directive for the protection of the consumers is related to the terms of information to be provided to the consumer (Article 10); full and informed consent to be taken from the consumers under transparent dealings (Article 11) and redressal methods (Articles 18 and 20). Article 10 lists the minimum requirements for the information to be given to the consumers by the seller and this is accompanied by the right of the consumers to have a copy of the contract that can be downloaded because the contract is not negotiable from the consumer’s side. Therefore, it is required by the EU Directive that the seller should clearly inform the consumer of the terms and conditions of the agreement so that these can be reproduced and printed; similar principles are applicable to any exchange of e-mails between the consumer and the seller. This directive puts focus on consumers’ right to opportunity to make informed decision and thus, the EU directives so far mentioned focus on duties of seller to clearly inform the consumers. This right to be clearly informed also extends to advertising, governed by Directive 1984/450/EEC and also Directive 1997/55/EEC that provides for prohibition on misleading advertising. Salvatore Mancus observes that these Directives seem to aim for a commercial environment that provides comfort and security to consumers. This is necessary in the sphere of e-commerce industry and its practices. Consumers cannot see various sides of the manufacturer, seller or businesses. For example, they cannot see the business premises, or cannot witness business conduct. This may impact decision making capacity of consumers regarding the quality and legitimacy of goods. The description of the products available to them may not suffice. E-commerce does put consumers at disadvantage as they may not be able to differentiate true and false advertisements. Directives such as those mentioned above may be able to prevent reduction of confidence of consumer in e-commerce and therefore give them ability to seek legal solutions for loss. However, not all solutions may be available. For example, the right of withdrawal as provided under Directive 85/577/EEC does not seem to find its place in all these directives. Consumers must have a right of withdrawal to feel completely protected considering the existence of standard form of contracts in online e-commercial transactions. Even the main European Directive 2000/31/EEC on electronic commerce does not provide for a general right of withdrawal for the consumers. It is left to the consumers to ensure they comply with provisions under applicable directives to enforce right of withdrawal. For example, they must be aware of the possibility of enforcing the right to withdraw under Directive 2000/31/EEC by complying with the requirements on distance contracts. They must apply to enforce the right within the minimum 7 days terms, as provided under Article 6.

Even though the EU directives provide the framework for consumer protection, there is a chance that the consumers may not generally know the approach to enforce their rights, for example the right to withdraw. Mancus, thus, observes that the framework governing consumer protection in case of electronic commerce seems to be extremely fragmented. Even if taken a single directive like Directive 97/7/EC, reading the provisions itself would generally be challenging for a consumer. For example, this directive is applicable to all consumer distance contracts entered into under the law of an EU-Member State. However, it excludes B2B and C2C contracts, financial services contracts and public auction contracts. Here, the difficulty with the consumer if that they have to look for another law or directive to enforce their rights out of distance contract related to financial services even though the directive is for distance contracts. Also, on one hand it excludes public auction, and on the other hand it includes auction through online platform such as eBay. This directive looks to be exhaustive on the face of it. However, it has its limitations. For example, it excludes providing for comprehensive information before a purchase and also the right of consumer to cancel the contract regarding products of daily consumption or regarding services designated for a particular date or time such as accommodation, transport, catering or leisure services. It these products and services are removed from the application of the directive, the use of this directive could be stated to be too narrow to be able to protect consumers. Here referring to Mancus’ observation about existence of a fragmented framework, this means that that it is left to the consumer to be aware of the applicable law, select them and apply them with other legal instruments in case they do to suffice.

2.2.2. Monitoring consumer protection

The fragmented framework of EU laws and directives is also an indication of absence of a centralised regulatory authority to monitor, supervise or govern consumer protection in the sphere of e-commerce transactions. EU law, through Article 3 Framework Directive 2002/21/EC, provides for a framework that member states can adopt and create supervisory network themselves. EU laws, through Article 7(2) of Directive 93/13/EEC, also empower the private consumer organisations in order that they can supervise market on behalf of the consumer. Likewise, corporations and industry are left to self- or co-regulate e-commerce. The absence of a central EU body regulating e-commerce transactions means that there are agencies for specific sectors. They conduct monitoring or surveillance of transaction to ensure consumer protection. The set up of EU and its member states is in such a way that it is the member states that have the authority to implement laws and take appropriate measures to ensure consumer protection in e-commerce. In response to regulating concerned authorities and bodies, Regulation (EC) 2006/2004 on Consumer Protection Cooperation was passed to regulate the network of authorities. They are responsible for enforcement of the regulation in the member states. For e-commerce, the European Commission created the advisory body called the ‘European Regulators Group for Electronic Communications Networks and Services’ in its Decision 2010/299/EU45. This body is primarily responsible to contribute towards consistent regulatory practice by facilitating cooperation between the Commission and the national regulatory authorities (NRA’s). It will also provide an interface to advise and assist the Commission in electronic communications. It is not just the member states and its network and authorities that are provided the option of supervising the protection of consumers. Consumers are themselves provided with importance role to market surveillance in respect to consumer protection rules. This is provided under Article 7(2), Directive 93/13/EEC. Consumers are provided the necessary environment by the state laws whereby any persons or organisations who or which have a legitimate interest may take a legal action against unfair contractual terms. Such provisions will enable consumer groups to apply appropriate means to protect consumers. According to Article 3(b) of Directive 98/27/EC, the state may grant such consumer organisations a special locus standi for seeking to injunction in matters of collective consumer protection. In this regard, Jörg Binding and Kai Purnhagen give importance to such consumer organisations as they have the required resources to take up consumer issues more effectively that individual consumers who tend to ignore the claim as the losses may generally fail to outweigh the risks involved in litigation. In terms of individual organisation or companies, EU has set up the Euro-Label-Organisation, an umbrella organisation governing national organizations, which sets standards and monitors their compliance. Private organisations are free to create their own e-commerce standards. This is supported by Article 17 of Framework Directive 2002/21/EC49, which provides for European Committee for Standardisation or the European Committee for Electronical Standardisation to create standards for electronic communications networks, services and facilities.

2.2.3. Product safety, defect and liability

Defectiveness is tested against the expectation of safety applicable to the circumstances, including product's functioning and performance. Europe has the Product Liability Directive 85/374/EEC and the Directive 1999/34/EC that extends liability to agricultural and fishery products. According to these directives, if a defective product has caused a physical damage to consumers or to their property, the producer of such product must compensate the consumer irrespectively of whether there was s negligence or fault on their part. The Product Liability Directive governs defective products that are manufactured or imported into the European Union and causes damages to persons or private property. Both the directives apply to product marketed in the European Economic Area. The burden falls on the consumer to demonstrate damage, defect and also prove a causal relationship between the defect and damage. The Directive aims to reduce disparities between national laws. The purpose of providing consumer protection is thus based on the concept of defect subject to safety that consumer may expect. The only was that the producer of the product may escape liability is to show that it was not them who put the defective product into circulation; that the defect resulted from compliance with mandatory regulations; and that when the product was put into circulation, the scientific or technical knowledge was not able to detect the defect. At the UK level, the Consumer Protection Act 1987 has implemented the Directive 85/374/EEC, which gives a wide definition of the defect by relating it to entitled expectation of safety of the consumers. Consumers can claim compensation against producer of a defective product if the defect causes damage, death or personal injury. This is a strict liability. Article 9 of the Product Liability Directive provides two kinds of damage. They are personal damage caused by death or personal injury and property damage. It is the responsibility of the domestic courts to categorise the type of damages. However, these two kinds of damages may not always be the only ones. In Henning Veedfald v Århus Amtskommune, ECJ held that the types of material damage may not be restricted by a state, where the damage results from death, personal injury, or destruction of or damage to property. This provision, however, does not apply to non-material damage, the reparation of which is governed by national law. In terms of protection of consumer from defective product, the concerned directives seem to place more focus on the expectation of the consumers. Consumer protection could be stated to shape the provisions of the directives. For instance, defective product is tested through the lens of safety of the consumers. This safety is the safety that the consumers are entitled to expect. Dr. Mahmoud Fayyad, while exploring the consumer protection measures between European Union and Islamic Jurisdictions, explored this aspect of determining defective product under EU law. He states that the test provided under article 6 (1) of the Product Liability Directive is subject to objective measurement of safety based on a person's expectation. A defective product, thus, does not provide safety which does not meet the entitled expectation of that person. While determining so, it has to take all circumstances into account. Relevant is the product presentation, product use reasonably expected or the time the product was put in circulation. In the case of A v National Blood Authority, ECJ addressed the notion of defective product. In this case, 114 individuals contracted Hepatitis C due to blood transfusions that unfortunately contained the virus. That time medical practitioners and blood producers were aware of potential risk since 1970s. However, there was no screening test that could detect the infected blood. They brought a group action. ECJ held that elements of defect, cost, impracticality and difficulty to adopt precautionary measures were not relevant. While determining whether the product was defective, the court held that the defendant conduct not relevant. It is the social benefit or product utility that was relevant given that the public possess full information and proper knowledge regarding the associated risks. ECJ, therefore, held product not defective because it was unsafe, as safety is what the public are entitled to expect and not what is expected by them at large. Thus, the relevant issue was whether they generally knew of the risk and accepted the risks. ECJ held that since there were no warnings or material publicity, entitled expectation was the absence of risk that transfused blood would be infected. Hence, the contaminated blood was held defective.

2.2.4. Enforcement of Remedy

The solutions and remedies available under the EU laws very much depend on the issues of EU and national jurisdictional laws. For instance, even if EU laws or a national law provide for certain protection for certain product, some other jurisdictions may prohibit providing such protection. This was observed by González when he explored the legal implications of the C2C electronic commerce model vis-à-vis eBay policies. González studied eBay auction business and explored the legal implications of the popular consumer-to-consumer electronic commerce model. Citing the finding of prohibition in some jurisdictions, he recommended for creation of jurisdictions to facilitate e-commerce. This observation is in line with earlier observation that the EU framework is fragmented and there is no centralised regulation and agency to enforce or implement its laws. In such circumstances, there will always be a potential issue of locating or creating jurisdictions that could facilitate e-commerce. E-commerce network transcends every border and it is vast and spans various jurisdictions. The conflict between EU laws and state’ laws and the complications associated with e-commerce transaction may offer challenges while enforcing remedies available to the consumers. Online offers may therefore be rejected subject to national regulatory guidelines. The basic question that arises in such cases is to determine which court would have the jurisdiction and which law would be applicable for consumer protection. As was mentioned earlier, there are multiple EU law regimes that may restrict online transactions, which again may proved detrimental to the consumer. For instance, UNCITRAL applies to e-commerce contracts and provides for a procedure to enforce legislation beyond limited territories. However, in English cases involving a non EU citizen, English Law is applied. This is a restrictive use of available laws. Going back to the creation and validity of a contract between the consumer of e-commerce product or services, the issue is to determine whether there is a contract when all exchanges is conducted electronically. Since e-commerce involves the use of an online e-platform, the issue is whether a contract is made without human intervention. The specific issue is regarding online purchasing, which generally involves automated messages. If arguments favours that automated messages are not acceptance, the buyers would find it difficult to enforce the contract and seek remedies. Sandholm and Lesser argued that automated messages are not. This argument is made considering that automated messages could be one way of committing fraud in e-commerce trade. Such messages could cause ambiguities for consumers and they may treat automated messages as a receipt representing a contract. However, alternative argument could be that the automated messages may amount to creating a contract. It all depends on the function that e-platform performs in order that an offer and acceptance could be set up. It may present conflicting situations and various legal considerations need to be applied. For example, an internet scam occurs when payments are accepted against services or goods and delivery to the consumers is refused. Another example could be not entertaining consumers’ requests to exchange or refund product against delivery of inferior items. Considering that there are various aspects to finding validity in contracts regarding online transaction, are the remedies sufficient to make up for damages suffered by consumers? The Consumer Rights Directive has created new responsibilities for retailers. This has also improved the protections available to consumers. It applies to cross-border transactions in the E.U. member states can apply them to domestic transactions. This Directive has added removal of hidden costs, provided under Article 27. It prohibits pre-ticked boxes on websites. Article 39 provides that consumers must be able to fully read and understand main elements of contractual terms before they place their orders. Such elements must be displayed in close vicinity of the confirmation requested. The Directive has also extended the right of withdrawal up to 14 days, provided under Article 40. Article 43 provides for extending the term to one year in case retailer fails to inform consumers of this right. This Directive apparently aims to create a transparent framework between the parties involved in the contractual transaction.

The Unfair Trading Regulation 2008 based on the Unfair Commercial Practices Directive (2005/29/EC) could be cited here as one of the attempts made by the EU to bring a transparent framework that provides consumer framework. It provides for tackling traders and is stated to mitigate loopholes in current consumer protection legislation. This directive primarily aims to harmonise law for unfair trading across the member states. It aims for a single regulatory framework across the states and unify application of laws governing commercial practices. The Regulation provides for prohibition of traders from unfair trading against the consumers and makes such trading a criminal offence. Osuji explored whether there is any harmonisation between laws governing harassment of consumers and other unfair commercial practices. Osuji studied the 2005 Directive and argues that it cannot resolve disparities amongst national laws. There is a lack of clarity of concepts and the existence of uncertain substantive and enforcement provisions. He cited the case of Ferguson v British Gas Trading Ltd, to state that this case extended the loosely formulated the Protection from Harassment Act 1997, UK to B2C harassment cases already covered by the directive. In this case British Gas sent the Fergusson bills and letters that threatened to cut off Fergusson’s gas supply, to initiate legal proceedings and to report Fergusson to credit rating agencies. Despite Fergusson’s several attempt to contact British Gas, it did not respond. In her claim, Fergusson claimed that the course of conduct adopted by British Gas was unlawful harassment, which breached the Protection From Harassment Act 1997. The Court of Appeal held that the conduct of British Gas could pass the test of gravity. It held that a person would be threatened if they who would likely suffer real distress and anxiety if threatened in the way British Gas threatened. The court acknowledged the absence for any defence of “accidental” harassment as the concerned Act does not provide such defence. The court held that Fergusson did not have to prove actual knowledge. Instead an “ought to know” case should suffice. Because of the reasoning adopted by the Court of Appeal in this case, Osuji stated that the Act is loosely formulated and it extended to B2C harassment cases. Osuji , hence, observed that this case is an example of the contradictions between the two legal regime. As such, it represents the loopholes in the goal of harmonisaation between legal regime as envisioned by the directive. In such kind of contradictory legal regimes and fragmented EU system, the enforcement of consumers’ rights would seem to face challenges.

2.2.5. Certain gaps in the e-commerce laws

As seen earlier, the multiplicity of legal regime and the fragmented nature of the EU law with lack of hormanisation with the national laws have led to the potential inability to tackle unequal bargaining position. This may prove detrimental to the consumers. The fact that there are many legal regimes is a sign of rising social concerns for consumer protection. This also indicates that E-commerce trade activities are complicated creating challenges for consumer protection. Consider the UK, there are many legislations that cater to consumer protection. The main piece is the Consumer Protection Act 1999. However, there is also a multiplicity of the legal regimes in the form of the Sale of Goods Act 1957, the Electronic Commerce Act 2006, the Contracts Act 1950, or the Anti-Pyramid Scheme Act 1993. They may be effective to certain extent, but from a layman consumer, the consumers will face the problem of locating the right law and the right party that is liable. Gill and Shahar, while exploring the regulatory techniques in consumer protection in the context of EU consumer contract law, opined that there are four mostly applied consumer protection techniques. They are mandatory arrangements that are pro consumer, which must form part of all consumer contracts; mandatory disclosure; regulations governing entry and withdrawal; and default rules that favour consumers and contract interpretation. These four techniques could be found reflected in the directives discussed so far governing right of information of consumers, as provided under Directive 2000/31/EEC providing right of information, informed consent and redressal methods; right to withdraw under Directive 2000/31/EEC; or the safety compliance subject to entitled expectation as held in A v National Blood Authority. Gill and Shahar highlight the importance of the techniques when they stated that there were 81 provisions in the Draft Common European Sales Law (2011) that represents the technique of mandatory arrangements that are pro consumer, which must form part of all consumer contracts. The Draft provided that sellers must not write any contracts that are derogatory from the requirement provided by the technique to the detrimental interest of the consumers. The contracts must have certain mandatory provisions such as remedies, right to withdraw, protection from risk of loss, warranties, disclosure, no right to seller to cure non-conforming product, and many more. It is therefore quite clear that concerns for consumer protection are given high importance. The question is about its effective implementation and enforcement and whether the measures in place are sufficient to that effect. It is thus necessary to evaluate the legal development that concerns consumer protection, whether they effectively priorities strengthening consumers. The observation made earlier about unequal bargaining power of consumers is a justification for such evaluation.

As seen earlier from the EU directives, the number of directives indicates that consumers require protection from unfair trade practices. For instance, there are directives governing defective goods, misleading advertisement, fraudulent products or falsely described products. The characteristics of e-commerce mostly make it impossible for the consumer to know the seller, the quality of the products or the sites where they are manufactured. These factors place the consumers at risk of loss and rendering them at weaker bargaining power. It is for these reasons that consumers attempt to search for relevant information to make informed decisions. As such the laws regulate disclosure of information and the right of consumer to information about the product from the seller or manufacturer. Dobson and Inderst defines buyer’s power as the ability to obtain an advantageous term of trade from the suppliers. Dobson explored whether being a strong buyer benefit them or harm them. They cite the example of discount in prices where he observes that obtaining discounts make a powerful buyer competitive against the rivals. In such case, the margins of weaker competitors are eroded, which benefit the consumers either by availing the lower retail price of its seller or availing the even lower price that the rivals may respond. They, however, observe that consumers will be only harmed if such practice leads the weaker rivals exit the competition or reduces the breadth of its offering. Given the circumstance, the consumer may seem to have a stronger bargaining power, but the market practices renders them subject to the offering of only the sellers which manages to have a stronger hold of the market. That way it could be stated the consumers are open to being subject to offering of only a few sellers in the market. Averitt and Lande state that consumer sovereignty must be the primary factor that shape free-market economy. A set of social arrangements governing the economy should be able to produce appropriate response to aggregate signals of consumers’ demand. It cannot be subject to preferences of individual businesses or government directives. The arrangement must allow the consumers to be a true sovereign with the power to effectively communicate their desires as well as demands and get them fulfilled at a reasonable price. Sassatelli highlights four notions, individual autonomy, social equality, consumer sovereignty, and corporate dominance. Sassatelli states that consumers negotiate the conflicts between these four notions and this triggers their moral judgments towards making decision around perceptions of deservedness and apportioning responsibility and blame across consumers, government and business components. This perception of the consumers could be stated to be a sign of lack of accountability amongst regulatory bodies. There is a deficit in accountability related to regulatory state. Lodge explored this area by considering how European telecommunications and energy regulators sought to advance consumers sovereignty Lodge observes that problems of accountability are everywhere in the form of abuse of office by public officials, ignoring procedural safeguards by politicians that could protect agency autonomy, or private entities benefiting from lucrative arrangements. All these cost the general public. Given these disregard for consumers sovereignty, it could be stated that the set of social arrangements, may be in the form of the EU directives or national legislation, has sufficient ability to response to consumers’ demand. However, the lack of accountability on the part of the regulatory bodies has the potential to give preferences of businesses or government directives over consumers’ aggregate demands.

Chapter 3 – Comparative Analysis

The sources of laws in the two jurisdictions are different. This may not create differences in the way e-commerce laws are validated. For example, laws under Saudi Arabia serves social objective when consumers emphasis for e-commerce systems to be Sharia compliant, which highlights the value of sellers’ trustworthiness. The same could hold true for EU laws and directives. For example, Directive 93/13/EEC governs unfair terms and Directive 2000/31/EEC governs sellers’ duty to provide information about products to the consumer, under its Article 10. Further, there is also a similarity in the structure of validation of laws. Both the jurisdictions have two levels of law. Saudi Arabia has its Basic Law and the Implementing Regulations of the E-commerce Law, 2020, which have to be compliant with Sharia. The EU has its laws in the form of Directives and Regulations and the member states have its own national law, which have to be compliant with EU laws. Sharia is the primary basis for e-commerce law in Saudi Arabia. All the laws have to comply with Sharia. Based on Sharia, Saudi Arabia has the Basic Law of Saudi Arabia, 1992. The Basic Law can be stated to be evidently based on religious principles, which focuses more on ethics, justice and equality. Sharia itself means the right way or the general principles of Islamic law. Saudi Arabia has the Implementing Regulations of the E-commerce Law, 2020 governing a range of online transactions and providing consumers protections against fraud, deception and misinformation. In the European context, e-commerce activities are governed by the general principles of contract. EU has more number of laws than Saudi Arabia. They are the form of Directives and regulations. This dissertation has discussed certain Directives and Regulations, which provides for governing consumer protection and duties on sellers to that effect. Some example, as discussed in this dissertation, are Directive 93/13/EEC governing unfair terms; Directive 85/577/EEC imposing special duties of supplier; Directive 97/7/EEC governing distance contracts; or Regulation (EC) 2006/2004 on Consumer Protection Cooperation was passed to regulate the network of authorities. Member states have their own laws as well. They also implement EU laws such as the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013 that implemented the 2014 Consumer Rights Directive. The underlying legal principles of Saudi Arabia and the EU are overlapping, where both of them emphasis on concepts such as trust or fairness. However, given the provisions of the Directives and regulations, there are differences in terms of technicalities in the way the laws are expressed and interpreted. As seen earlier, Sharia may not require consent and consideration for formation of a contract. It emphasises on ethics and e-commerce contracts must be ethical, unlike EU laws that focus on legal principles. Both the jurisdictions allow parties are give autonomy to choose the contract they wish to enter. However, Sharia may not even require signing a contract, but focuses on acceptance in the form of conduct and will of the parties. In terms of e-commerce, which comprises a complex set of parties, their obligation and liabilities, Saudi Arabia could be said to be able to translate principles of Sharia. The difficulty may stem from the fact that e-commerce is complex and principles of Sharia are moral codes. This may be the reason why the Saudi Arabia faces lack of regulations and e-commerce law. As such, it cannot tackle specific problems faced by the consumers of e-commerce, such as unsecure online payment, online payment fraud, and lack of clarity in existing laws to protect rights of e-commerce consumers. The last mentioned has been one of the areas in which Saudi Arabia has shown slower progress and the issues that specifically rise from this are related to the lack of clarity on the legal terms and conditions that are applicable to e-commerce, lack of clarity on how conflicts or issues between the service provider and the client will be handled, cyber related fraud and how parties will be protected. Given these problems, it might be sensible to suggest that the legal technicalities of the EU laws could be borrowed into the e-commerce legal framework of Saudi Arabia.

As discussed, e-commerce law of Saudi Arabia, based on Sharia, focuses on ethics and integrity of sellers. It aims to create a secured and protected environment to the consumers. Likewise, the EU laws also provides for ensuring consumers are protected and they have access to remedy to enforce their rights. Both the sets of law focus on transparency in regard to the seller, the products and other technicalities associated with the products. Saudi Arabia law provides for consumers to have the right to accurate information. It also provides consumers access to remedial rights, such as right to compensation and recovery. These principles of Sharia are also reflected in the 2020 Implementing Regulations of the E-commerce Law. The same principles could also be seen in EU law perspective. Rubin’s observation is in this line, where he emphasises on the availability of information that could impact efficiency between parties in terms of balance of their position. EU laws also provide for consumers’ right to information and make informed decision. Directives such as Directive 93/13/EEC that provides for unfair terms or Directive 85/577/EEC that provides for supplier’s duty to provide consumers information aim for protection of consumers. Even at the state level, such duty is implemented such as what is done with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013 that ensure balance of negotiating power. This is also reflected in the principle of haram under Sharia that prohibits sellers from selling haram commodities or services and provides for non-acceptability of such e-commerce transactions. Sharia imposes duty on the seller to be honest includes the duty to inform the buyer of any risks. This is also provided under the Implementing Regulations of the E-commerce Law, 2020. As such, there is overlapping legal requirements being provided by both the law in respect to this aspect of the right of the consumers. Given the comparison so far, the two sets of law seem to be guided by a general standard that provides protection of consumers by imposing duty on sellers to be transparent and create a secured environment for the consumers. The principle of transparency seems to be adopted by both the sets of law. This could be represented by citing the principles around electronic advertisements that prohibits false or deceiving statement about a product. Ethics and honesty hold high importance in e-commerce transaction in Saudi Arabia. There is prohibition of deception or misrepresentation, which is ensures free consent of the parties and fair negotiations between them. This is based on the consumers’ right to make informed decision. EU laws also reflect the same principles in its directives, such as the Directive 1984/450/EEC and Directive 1997/55/EEC that prohibit misleading advertising. The Directive 2000/31/EEC governing electronic commerce secures the rights of consumer rights to information (Article 10) and transparent dealings (Article 11). As could be observed here, the general underlying message are on similar footing, however, based on technicalities concerning the structure and framework of the legal provisions, EU laws are more structured and could plan an influence on Saudi Arabia Law.

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The legal principles in both the sets of law are to bring and maintain a balance of negotiation power between the consumers and the sellers. The right to information or prohibition of misleading information is an example. In such case, both the sets of laws provides for consumers’ opportunity to reconsider the contract they are entering. In Saudi Arabia context, Sharia reflects this principle of reconsideration where it prohibits uncertain dealings. However, EU laws seem to expressively provide the right of consumers to ensure negotiation and amendment of the contract. For example the Directive 97/7/EEC provides this protection and the Consumer Rights Directive 2014 as implemented by the UK through the Consumer Rights Act 2015 ensuring negotiating power of the consumers. Even though in terms of technicality, there are differences, when it comes to ecommerce contract, the terms are in standard form that gives minimal opportunity to consumer to negotiate the terms. This dilutes the purpose of right to information and making informed decisions. Given this situation, both of the laws are not strong enough to protect the consumers. However, in terms of remedial action, the rights of consumers could be stated to be sufficiently protected under both the laws. In case the commercial transaction is not fair to the consumers due to dishonesty or any other breach, both the sets of law provide for termination of the contract and securing their interests. The Sharia’s principle of Khiyar al-Tadlis is a well established principle. Consumers can terminate the agreements and return products in case of misrepresentation or deception. The Implementing Regulations of the E-commerce Law has also implemented this principle and provided this right to the consumers to terminate and get refund. In the EU context, consumers have the right to withdraw, as provided under Directive 85/577/EEC. The Consumer Rights Directive also provides the consumers the right of withdrawal with a sufficient period of up to 14 days. Such protection framework could create an equal negotiating environment between the parties. The new regulation of 2020 of Saudi Arabia ensures that personal data of consumers are protected in terms of its access, disclosure, alteration or illegitimate processing. Given that EU has the General Data Protection Regulation (GDPR), the level of procedure in terms of processing, controlling or managing personal data as provided under GDPR is probably higher than what is generally provided under the Saudi Arabian law. Laws of EU and its states have well structured data protection framework, which may be more advanced than most of the countries. At the UK level, it has the Data Protection Act 1998, which provides provisions for data processing and governs ecommerce transactions. In this context, although it has the 1992 Basic Law in this regard, Saudi Arabia does not have specific data protection laws and consequently may not be able to strengthen consumers’ rights in the way the EU laws could. Thus, Saudi Arabia has a good reference in the form of GDPR or the DPA 1998 to lay down foundation especially for data protection.

One view that could compare both the sets of law is centralisation. EU law because of its fragmented characteristics does not provide for a centralised authority. The result being power distributed amongst private actors and the member states. Thus, EU law serves as guiding principle with enforcement being left to the actors and the states. In terms of Saudi Arabia, the lack of regulatory framework indicates the power is being confined to the government and its Violation Review Committee. In EU, the absence of centralised authorities has led to passing of regulations, such as the Regulation (EC) 2006/2004 on Consumer Protection Cooperation, to regulate the actors and states. EU has its European Regulators Group for Electronic Communications Networks and Services for this purpose. What is interesting is that the sellers and the consumers are given authority in self regulating and self governing. For instance, Directive 93/13/EEC provides for market surveillance by consumers. However, the exercise of such authority is left to the discretion of the state to implement mechanisms making this possible. What could be derived from here is that a system inculcating the core features from both the sets of law could be made for effective enforcement and regulation regarding consumer rights and duties of sellers. For instance, the system could ensure there is a centralised enforcement body and the enforcement is done through a well laid out structure of regulations removing the fragmented characteristics of the EU law and the over-centralised authority of the Saudi Arabia law. Given that there may be an issue of supremacy between EU laws and state laws, authorities with appropriate power could be created, but there must be specific law governing e-commerce dealings. The potential issue of conflict may also occur with Sharia law and the e-commerce law. Sharia law may not be able to meet the complex nature of e-commerce with cross border transaction and online policies on consent and contractual terms. In such case, ecommerce can, based on the principles of Sharia can implement new regulations to meet new challenges of ecommerce. For example, automated messages may create issue regarding consent to a purchase. Provisions under the Consumer Rights Directive covers this issue and the Saudi Arabia law can amend its laws based on this Directive. The Unfair Trading Regulation 2008 is a good example that could harmonise rules and laws regarding consumer protection. Further examples of EU laws that Saudi Arabia law could implement are that of legal principles regarding product liability, which is provided by Directive 85/374/EEC and implemented by the UK the Consumer Protection Act 1987. These laws give a wider scope of protection to the consumers. Saudi Arabia lacks a structured e-commerce law. One of the reasons is lack of adequate government support in terms of laws and infrastructure governing payment and delivery. However, the existing law may be sufficient given that the enforcement of the legal compliances are in order, as could be seen with action taken against 44 online stores for violating the new law or Ministry issues warning to retailers. This is a sign of the success of enforcement despite the lack of sufficient well structured regulatory framework. In the European context, EU laws cannot be stated to lack structure or framework. However, the problem is that there is multicity of directives and regulations. The fragmented laws have left the consumers in detrimental position in regard to complying with laws to enforce their rights having caused by the level of awareness need to understand all existing applicable laws. This kind of fragmentation could be also seen in Saudi Arabia, though at a very lesser level. For example, there is the E-Shops Authentication Authority, which did not provide for minimum capital outlay, and the new law that provides for sellers to identify their details.

The comparative analysis has found certain overlapping and different legal principles regarding protection of consumers’ rights and sellers’ duties between the two laws. The principle of Khiyar-al-Tadlis is a special highlight of the comparison, which could influence the EU law to formulate a law or a directive especially focussed on this principle. In terms of technicalities, Saudi Arabia law has the potential to elaborate on the technicalities in the way they express the provisions of the law to make it easier for parties to comply. This is especially necessary given the complex activities and legal aspects involved in e-commerce dealings. For example, GDPR could provide a positive impact upon Saudi Arabia law related with personal data protection.

Chapter 4 Conclusion

This dissertation has explored the effectiveness of EU legislation and that of Sharia and relevant Saudi Arabia law in protecting e-consumer rights and the core differences between them. This dissertation has explored the rationales behind the developments of law in both the jurisdictions. While doing do, it has been able to formulate potential effective measures to preserve rights of e-consumers, which may be able to create new polices that could promote e-commerce across countries. This dissertation has been able to a certain extent to find the gaps and potential corrective measures ensuring e-consumer protection in Saudi Arabia and EU laws.

Sharia is the moral code that shapes the Saudi Arabia law, including e-commerce. Principles of trust, honesty and ethics hold the core principle for shaping e-commerce laws. The 2020 Implementing Regulations of the E-commerce Law could be considered a good step by the government considering major dealings are online in today’s time. The focus on compliance with Sharia to be able for consumers to engage in e-commerce dealings is a strong reinforcement of consumers and traders reliance on partake trust. It also demonstrates the strong role moral obligation play in Saudi Arabia laws, including e-commerce law. However, Sharia principle may not be able to guide the complex nature of e-commerce transactions. The lack in technicality regarding the legal aspects of consumer rights and sellers’ obligation may create issues in the e-commerce transaction itself and against protection of consumers as well. This is where getting some valuable references from EU laws would provide beneficial legal framework opportunities. The comparative analysis in Chapter 3 demonstrates this aspect.

The hierarchy of legal regimes in Saudi Arabia and European Union are similar. The former has Sharia law as the superior law governing e-commerce laws of Saudi Arabia. Likewise, EU has the EU laws in the form of directives and regulation this dissertation has discussed. They provide a governing legal regime for member states to adopt and comply. Like EU has Directive 85/374/EEC and implemented by the UK in its Consumer Protection Act 1987. E-commerce dealings are complex and this dissertation has shown that available legal principles may lack governing all the activities in e-commerce transactions. Saudi Arabia has the Implementing Regulations of the E-commerce Law, 2020 governing e-commerce dealing. EU has multiple directives and regulation. This dissertation has discussed all these laws and found certain observation in terms of efficiency to specific areas of e-commerce and the lack of it in many areas of e-commerce. For example Saudi Arabia has the principle of Khiyar al-Tadlis, which an established legal principle is touching on the moral code provided under Sharia as well as the legal aspects to e-commerce transaction. It provides entitlement to remedy to consumers in case of misrepresentation or deception. Similar principle could also be seen in the directives of the EU laws. Directive 85/577/EEC provides for right to withdraw. There are similar provisions that are overlapping and some that the specific to the legal regimes. This can be explained in three aspects. Firstly, they both have common feature, which is in the guiding principle of transparency on the part of the sellers regarding themselves, their products and associated information. Secondly, the difference is in legal technicality regarding the way the framework is laid out. EU laws have respective directives and regulations governing aspects of consumers’ rights and sellers’ duty. For instance, Directive 1997/55/EEC prohibits misleading advertising or Directive 2000/31provides consumer rights to information. They give detailed legal provisions for member states and other agencies to enforce consumers’ rights. Thirdly, another difference is regarding specific laws concerning specific issue. For example, Saudi Arabia has Khiyar al-Tadlis. The EU has GDPR.

The three aspects that are observed here are an outcome of the comparative analysis between the Saudi Arabia law and EU laws. This observation clearly highlights the opportunity of building a legal regime governing consumer protection and e-commerce activities. Observed as gaps in the regulatory framework, Saudi Arabia has the three-member Committee and the Administrative Court of First Instance for enforcing the relevant laws. This has been observed as centralised to very few authorities. In EU context, EU laws provide multi-layer implementation and enforcement mechanism. EU laws as such do not provide any authority that could enforce the law. It instead provides for a general body, European Regulators Group for Electronic Communications Networks and Services, which could coordinate the network of actors in –ecommerce, including the member states, private entities, consumers and other organisation. It provides for private entities or traders to self comply with relevant laws. Likewise it provides consumers the power to self monitor the market. For enforcement, it leaves the discretion to the member states to provide a regime allowing enforcement of rights and obligation. In addition to this multi-layer functions, there are multiple directives and regulation and state laws that may comply or modify such EU laws. There is duplicity and multiplicity of laws and authorities. Taking note of these events, the new legal regime could see a centralised EU authority that has certain level of enforcement power. It could also centralise the multiple laws or directives. Thus, in Saudi Arabia context, it could amend the existing law or create specific laws to govern e-commerce and also other general legal principles, such as data protection or defective product liability. In EU context, it could reduce the multiplicity of laws and create a centralised legal regime in order to make it easier for laws to be enforced.

E-commerce is complex and it comprises multiple actors and activities. This characteristic attracts various legal aspects, such as right to information, misleading information, reasons for termination or withdrawal, refund, or data protection. The overlapping and different legal principles, as discussed in this dissertation, highlight the similarity and also the difference in views regarding the same area of activity, which is e-commerce in this case. The difference in geography, difference in source of laws, and difference in social perspective to the area of study in question are important factors that could shape laws of the land. The comparative analysis conducted through this dissertation demonstrates that in case of a common area of activity, the underlying legal principle is similar, as is seen with the need for transparency in e-commerce dealings.

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