Written by: Stjepan Lović

Online shopping is constantly growing, especially evident during holidays that mean many discounts for consumers and increased revenue for retailers. To influence consumers’ willingness to buy their products, retailers employ various psychological marketing tricks.

To protect consumers, the obligations of retailers and the rights of buyers are regulated by numerous European Union directives that have been incorporated into the Consumer Protection Act. The law does not recognize the term online shopping but refers to this type of trade as a distance contract.

Unfair Business Practice

An unfair business practice is contrary to the requirements of professional diligence and significantly affects or is likely to significantly affect the economic behavior of the average consumer to whom such practice is directed or reaches, i.e., the average member of the consumer group to which it is aimed. Persistent and unwanted communication with the consumer by phone or by coming to their home is an aggressive business practice, meaning one in which the retailer uses coercion, physical force, or threats and undue influence that diminishes or is likely to diminish the consumer’s freedom of choice or action and leads the consumer to make a purchase decision they would not otherwise make.

In addition to aggressive business practices, the law also recognizes misleading practices, which do not contain important information necessary for the average consumer to make a fully informed purchase decision and lead or are likely to lead the consumer to make a purchase decision they would not otherwise make.

A well-known example of such practice is the use of dark patterns on the internet. Retailers, using psychology, maliciously direct the consumer’s will to choose a less favorable option for themselves and a more favorable one for the retailer by selecting a visually appealing form on the user interface (less favorable options or purchase options marked in larger letters, while more favorable options or withdrawal from it are marked in smaller letters, additional costs marked in smaller letters, etc.) and thus consent to the retailer excessively processing their personal data, purchasing a more expensive product, or agreeing to less favorable contractual terms.

Retailers particularly use such interfaces during sales when they offer consumers discounts for a very limited time, thus leading them to make quicker and less thoughtful purchases. Although the use of dark patterns on the internet is not illegal in itself, it becomes illegal if retailers intentionally omit information essential for the consumer, excessively process personal data, and so on. Therefore, when consumers realize they have become victims of unfair business practices, it is important for them to know how to protect their personal and property rights.

Legal Protection

The most effective way to protect consumers is the unilateral termination of a distance contract. If for any reason, which does not have to be an unfair business practice, a consumer wishes to withdraw from a distance contract, they have the right to unilaterally terminate the contract without justification, no later than fourteen days from the date of conclusion. To protect their rights, consumers also have the option to submit a written complaint to the retailer at the retailer’s business premises, by mail, email, or other means of online communication that allow for the storage of the time and content of communication on a durable medium. The notice on how to submit a complaint must be prominently displayed in the retailer’s business premises and on the website. The retailer is obliged to respond to the consumer’s complaint within fifteen days. Consumers can also submit a complaint to the State Inspectorate, and in the case of determining the retailer’s unfair business practice, they can be administratively sanctioned.

As a last resort, consumers have access to judicial protection. A court procedure must be preceded by a mediation procedure if it concerns a claim for damages. To facilitate the consumer’s position in the dispute, the legislator has shifted the burden of proof that it is not an unfair business practice, which includes proving that the consumer was fully informed of all relevant elements to which the law obliges them, onto the retailer.

Be Cautious!

With the increase in online shopping, the number of online frauds is also rising. It is crucial to protect oneself from fraud, recognize that fraud has occurred, and know whom to contact to protect one’s rights. It should be noted that consumers who purchase from retailers based outside the European Union have the same rights, but in such cases, the realization of those rights may be more difficult. Therefore, European Union institutions systematically address this problem with the help of consumer protection associations and the European Commission, which imposes compliance with its rules on third-country online platforms as a condition for trade within the Union. To avoid sanctions for unfair business practices, retailers must primarily adhere to the principle of transparency, inform consumers of all elements of the contract with a clearly stated price, notify consumers of the possibility of submitting a complaint, and only process personal data necessary for concluding the contract.