Consumer Protection, Digital Rights, and
Defining "Consumer Welfare"

Pranesh Prakash

Fellow
Centre for Internet and Society

Affiliated Fellow
Information Society Project, Yale Law School

Public Interest Technology Fellow

New America

 

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Consumer Rights in the Information Society

  • Ensure that suppliers of digital content inform consumers of the effect of any applicable technical protection measures and information on interoperability with hardware and software.

  • Set minimum standards for essential copyright limitations and exceptions for consumers.

  • Stop suppliers from using technology to cripple digital products or unreasonably limit the ways in which consumers can use them.

  • Promote a permissive approach to copyright to facilitate non-commercial creativity by consumers.

Consumer Rights in the Information Society

 

  • Require that the dissemination of consumer safety information, and codes and standards that impact consumers, are free of copyright constraints.

  • Prohibit IP rights from being enforced in ways that trample on consumers’ human rights.

  • Ensure that consumers retain access to their own data in formats that they can use, and that such data is protected against misuse.

Consumer Rights in the Information Society

  • Consumers are entitled to “technical neutrality”. They should have the same rights online as offline. Digital technology must not be used to take away established consumer rights.

  • All laws, regulations and non-statutory instruments such as codes and standards which are related to the protection and advancement of the interests of consumers or the public at large should be freely, accessibly and publicly available

Consumer Rights in the Information Society

Robin Brown and Jeremy Malcolm

 

Information and Communication and the Rights of the World’s
Consumers in the 21st Century:
Updating the UN Guidelines for Consumer Protection

Consumer Rights in the Information Society

But UNCTAD's 194 member states didn't agree.


"A level of protection for consumers using electronic commerce that is not less than that afforded in other forms of commerce"

"The protection of consumer privacy and the global free flow of information"

 

 

Consumer Rights in the Information Society

ASEAN

Handbook on ASEAN Consumer Protection Laws and Regulations


"E-Commerce" seems to be covered, but not non-commerce issues.

Consumer Welfare

‘[a]ll of us here today know very well what our ultimate objective is: Competition policy is a tool at the service of consumers. Consumer welfare is at the heart of our policy and its achievement drives our priorities and guides our decisions.’
- EC Vice-President Joaquín Almunia
"Competition and consumers: the future of EU competition policy"
(Speech at European Competition Day, Madrid, 12 May 2010)

Consumer Welfare

"[t]he objective of Article 81 is to protect competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources."

​- European Commission Guidelines on the application of Article 81(3) of
the Treaty, OJ C 101/97, 2004-04-27

Consumer Welfare and Fair Competition

Term "consumer welfare" adopted in law from economics literature:
"general welfare" + "consumer surplus"

 

Used in US antitrust law (thanks to Robert Bork)

 

Used in EU, thanks to US antitrust law.

Consumer Welfare

  • What about "consumer" companies

    • In EU, business "users" are also covered.

Consumer Welfare

  • Consumer Welfare as Price

    • In EU, now "price, quality, and choice"

  • In USA, courts still refer to price,
    while administration is shifting its
    view.

 

Consumer Welfare

  • Consumer Welfare as Price

    • In EU, now "price, quality, and choice"

  • In USA, courts still refer to price,
    while administration is shifting its
    view.

 

Consumer Welfare

  • Crémer et al., "Competition Policy for the Digital Era"

Market Power vs. Abuse of Dominance

Should we only be worried about abuse of dominance, or even about market dominance itself?

 

Lina Khan:

  • "First, does our legal framework capture the realities of how dominant firms acquire and exercise power in the internet economy?"

  • "And second, what forms and degrees of power should the law identify as a threat to competition?"

 

pranesh@cis-india.org

   @pranesh

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