Using national consumer law against tech companies that abuse consumer rights

Rationale

The problem with accepting an intellectual property frame for our work on access to knowledge is that it is very difficult to make any headway, because the bulk of rights-holder lobbying muscle is mobilised against us. We therefore supplement this with an alternative and complementary approach: the use of consumer protection laws and policies. By reframing policies around access to knowledge as consumer protection issues, we have perhaps a more compelling narrative than arguing for limitations and exceptions to exclusive rights in an intellectual property rights frame.

One of the key findings from our 2010-2012 OSF-funded research, which included case studies from China, Australia and Brazil, was that consumer laws can be used to prevent various forms of IP abuse, particularly unfair terms in End Users Licensing Agreements. Some recent cases of IP abuse in high technology markets were examined, involving companies such as Sony, Google and Amazon, and the potential for redress of these abuses through consumer law was described. It was found that all countries that have or are considering enacting comprehensive consumer laws, and in particular developing countries, should adopt more flexible approaches at both international and domestic levels to address IP abuse issues and to protect the legitimate rights of their citizens in using new technology products and services.

Some CI members have effectively used consumer law in this way; for example the Norwegian Consumer Council has come up against Apple and Amazon for their abusive terms of service, our Belgian and French members Test-Achats and UFC Que Choisir sued record labels in 2003 and 2004 over their sale of copy-protected audio CDs and DVDs, and Apple also copped a serve from CHOICE as the recipient of a 2006 Shonky award. But there is much more room for other members to follow this lead, with support and resources provided by CI through this activity.

Although consumer laws exist that would prevent many of the bad practices that we see in the technology sector, insufficient use is made of them in practice. Too often, the laws remain on the books untested and forgotten by most. This activity will reactivate the latent capacity of consumer laws and policies, particularly those that exist in developing countries, by resourcing selected CI members to apply them against the companies that have most egregiously abused their IP-based monopolies against consumers of digital products and services.

Sub-grants for national campaigns

With the support of the Open Society Foundations, CI is offering a round of sub-grants to its members to facilitate national level advocacy and campaigning activities directed against such companies, including:

  • reporting those companies to consumer regulators and working with those regulators to enforce the laws against the offenders;
  • “naming and shaming” the companies concerned through local media outlets and/or through new and social media campaigns;
  • engaging in direct negotiations with the companies concerned, or with sectoral groups of which the companies are members, to reform their poor practices to conform with the requirements of the law; or
  • to engage legal representatives to issue a formal letter of demand that the companies reform their practices, in default of which further action will be taken (subject to available funding).

Once approved, grantees would also receive individualised coaching from CI and/or from larger and more experienced members, to maximise the effective impact of their planned advocacy interventions.

Targets for national campaigns will be nominated by members, and in appropriate cases a nomination may be prompted by the CI project secretariat. We will consider the optimal venue for targetting these companies for their activities, not being limited to the company's country of incorporation, but also based on the countries with the most suitable consumer law, and those in which there is a strong CI member with the capacity to engage with the company concerned over its conduct.

Each participating member will prepare a sub-grant proposal to CI which will be evaluated against the following criteria:

  • Objectives are clearly defined and relate to either online freedom of expression and/or online access to information.
  • Indicators are clearly defined.
  • Targets are clearly defined.
  • Activities are well thought out.
  • There is a clear and logical timeframe.
  • The budget is well-designed and linked to the activities.
  • Staff cost included in the budget do not represent more than 40% of the total requested budget.
  • The project contributes effectively to strengthening the organisation’s institutional capacity.
  • The stakeholders identified are relevant and their role in the project is well defined.
  • Credible mechanisms for monitoring and evaluation are incorporated in the proposal.

We expect to be able to fund about 3-6 national-level interventions, which will result in a report back from the member (which we will publicise internally and externally through our network) explaining the impact that the intervention achieved, and make a case for further steps that may be needed.

Resources

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