Consumer Redress In A Digital Economy – Findings In The Small Island States (Pacific Region)
1. Executive Summary
This report presents you findings of research carried out on types of Digital Consumer redress mechanisms existed and is in progression within respective small Island states and archipelago countries in the Pacific Region. Archipelago and Small Island State countries including, Cook Islands, Fiji Islands, Kiribati Islands, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tahiti Islands, Tonga and Vanuatu .
The report answers 5 key questions outlined below:
How can people be protected and allow the benefits to prevail whilst working within the digital economy?
When products and services are faulty, bought over the www from on shore or off shore, how does the consumer seek redress?
Is there a need to rethink consumer protection in the digital age or will the existing mechanisms still stand?
If so, what are changes being proposed or required in existing Policies, Laws, regulations, guidelines and institutions?
Who is in charge, the ICT regulator or the consumer protection agency, when it comes to consumer complaints with regard to digital services?
2. Brief ICT and General Consumer Protection Development Report on the Selected Small Island States
Telecommunications/ICT and related developments is the responsibility for Ministry of Finance and Economy. Additionally, the nation has established a national ICT policy and the latest which is currently enforced is the five year National ICT Policy 2015 – 2020 - https://pafpnet.spc.int/resources/537-cookis-national-ict-policy-2015-2020. The policy promotes limited discussions on strategies and or approaches on consumer protection and other relations in the digital economy. Particularly to address the 5 key questions outlined above. However, the Policy has made reference to the possibility of establishing a national Regulatory Regime and framework.
Although, there are limited discussions on Digital consumer protection affairs, there is existed consumer Guarantee Act http://www.cookislandsnews.com/item/62635-protection-advisor-will-aidconsumer/62635-protection-advisor-will-aid-consumer or http://www.intaff.gov.ck/wpcontent/uploads/2014/04/Consumer-Guarantees-Act-2008.pdf which is general and has very limited functions and or obligations towards digital economy.
To-date, there is progression on the development of the Regulatory Institution as mandated by the National ICT Policy. The national ICT policy also emphasized on the establishment of Regulatory authority and or consumer redress mechanism to protect citizens rights related to Digital services and made reference to the Regulator’s office to be the implementing agency for such digital consumer redress.
The general Consumer protection obligations and rules (Consumer Guarantee Act) are enforced by the Ministry of Internal Affairs.
Fiji Islands has very interesting governance when it comes to consumer protection and other relations. Specifically on Telecommunications, ICT and Information Technology development the Ministry responsible for Economy, Public Enterprises, Civil Services and the communications - http://www.communications.gov.fj/index.php/agencies is responsible for such developments.
Fiji Islands has several Consumer Protection Mechanisms including various protection legislations such as Consumer Council of Fiji Act, 1985, Commerce Commission Decree 2010, Consumer Credit Act, 1999, Fair Rent Acts 1978, Real Estate Agents Act, 2006, Telecommunications and or Promulgations Act etc.., such law can be accessed from this website http://www.consumersfiji.org/our-work/legislations.
Additionally, the Consumer Council Body http://www.consumersfiji.org/ was established to be the voice of the consumers when consumer protection issues are brought to their attention including issues on Telecommunications/ICT activities. Interestingly, Consumer Council Body has also initiated a program known as the Community Consumer Advisory Group (CCAG) across all main Centres of Fiji Islands http://www.consumersfiji.org/our-work/community-consumer-advisory-group-ccag.
Telecommunications Authority Fiji http://www.taf.org.fj/Consumers/Consumer-Protection.aspx was also established to regulate Telecommunications market competition including carry out respective consumer protection activities mainly on competition issues related to Telecommunications/ICT.
Although there are several mechanisms in place already, there is still a need for improvement particularly on the harmonization of the legislative frameworks and the improvement on respective institutional responsibilities. There is still a need on having a clear direction on which mechanism or framework is much more appropriate to address consumer protection activities in a digital economy.
The National Broadband policy is also limited to promotion of digital economy.
General Consumer Protection especially on unfair trading is existed in the Kiribati Islands.
Responsibilities are administered and coordinated by the consumer protection unit headed by the Ministry of Commerce, Industry and Cooperatives https://mcic.gov.ki/consumer-protection-unit/. The Consumer Protection Act, 2001, mandates the operations of such unit and outlined clear mandates for the Minister responsible to act when required and especially on matters affecting the interest of the consumers and that were brought to its attention.
Telecommunications Authority of Kiribati (TAK) http://www.cck.ki/ was also commissioned to cater for Consumer Protection activities on Telecommunications for the I-Kiribati. Although the responsibility on consumer protection was not that clear, there is indication that there is established mechanism that could be improved to cater for consumer redress in Digital Economy.
Kiribati Islands can now leap frog with developing its consumer protection legislation especially given the Government has yet to develop consumer protection legislation on Telecommunications/ICT products and services http://www.cck.ki/index.php/2014-02-24-00-12-24/open-consultation.html.
The Government of Kiribati has developed its National ICT policy
https://www.micttd.gov.ki/sites/default/files/Kiribati-ICT-Policy-Mar-2-2011.pdf back in 2011. Although the Policy is quite general and caters especially for the new beginning of liberalization, it is obvious there is very little or nothing mentioned at all in the policy on Consumer Protection Activities.
The policy definitely needs to be reviewed and updated to cater for Digital Economy.
Nauru is one of the Micronesian Islands in the North Pacific Ocean. The Republic of Nauru http://www.naurugov.nr/government/departments/department-of-telecommunications.aspx has a long way to catch up with Telecommunications and ICT development and especially in the era of Digital economy.
Consumer Protection Mechanism may not be existed however; there are quite a number of discussions on the matter at the national level.
Such slow pace of development and especially in the digital market may cause a huge barrier between the rests of the world who has advanced to digital economy.
Papua New Guinea
Out of all Pacific small Island states, Papua New Guinea (PNG) has positively advanced in its consumer protection mechanisms. For example, PNG has had its Independent Consumer and Competition Commission https://www.iccc.gov.pg/ established several years ago. The catchy part of this development is its independent operations. With its independent operations, and as referred to in their website, there a lot of consumer protection activities positively progressing and contributing to PNG citizens benefiting from what is being delivering on so far.
National Information & Communications Technology Authority (NICTA) https://www.nicta.gov.pg/ is a converge Regulator which also promotes consumer protection in ICT/Telecommunications Development within PNG. The authority also promotes and has a responsibility regulating cybercrime and security, internet Exchange Point and Papua New Guinea Computer Emergency Response Team (CERT). The national also established its National ICT Policy and Reform http://www.cimcpng.net/images/CommsDepartment.pdf which captures a bit of consumer protection in the third generation regulatory environment.
The consumer Protection Legislation http://www.paclii.org/pg/legis/consol_act/caca1993244/ is general and that can be reviewed to consider digital economic activities which already PNG is experiencing.
Samoa has established its office of the Regulator https://www.regulator.gov.ws/index.php/consumerprotection ten years ago to provide regulatory oversight over telecommunications, electricity, broadcasting and Postal development. The authority also looks after consumer protection activities for the four sectors outlined. The consumer protection Unit has a mandate through the Consumer Protection Act https://www.regulator.gov.ws/images/Rules/Telecommunication_Rules-Eng.pdf to enforce and make sure respective parties comply with the mandatory obligations. However the regulation is very specific to advertising and competition activities and focusing on mobile services. The ministry of Information, Communications and Technology https://mcit.gov.ws/services/policydevelopment-formulation-and-review/ also have some responsibilities over Digital development however, there is very little information on the progress of the developments the National ICT Policy is referring to. The ministry has developed some very interesting policies to cater for consumer protection. Such policies as the Samoa National cybersecurity Strategy (2016 – 2021), National Broadcasting Policy, Samoa National Broadband Policy, Samoa National ICT Policy, Samoa National
Social Media Policy https://mcit.gov.ws/wp-content/uploads/2019/04/Social-Media-Policy-forGovernment-2017.pdf and more others. To have these clear and concise policy directions, it however assists respective authorities on what is expected in terms of consumer protection in the next generation environment.
The ministry of Commerce Trades and Labor have moved forward to establish Samoa’s national Competition and Consumer Protection Commission.
Solomon Islands also has consumer Protection Unit through Ministry of Commerce, Industry, Labor ad immigration http://www.commerce.gov.sb/activities-updates/resources/143-consumer-protectionact.html. The legislation http://www.commerce.gov.sb/activitiesupdates/resources.html?task=document.viewdoc&id=143 is quite old and very general.
However, Telecommunications Commission of Solomon Islands (TCSI) was also established to regulate market competition and Consumer protection. Like any other Telecommunications Regulator’s mandatory obligations, TCSI is also obligated to regulate consumer protection on specific mobile services.
The national also has its national ICT policy - http://www.mca.gov.sb/resources/national-policies/10national-ict-policy/file.html which is also limited. Although some specific lines of regulations made reference to consumer protection in e-commerce, there are still a lot to be done to build a consumer trust and confidence in the market.
The national ICT policy also promotes consumer protection through its e-government infrastructure development especially the policy made reference to awareness on scams, spams, undesirable content, access to open source software and free online tools etc…. But there is still a lot to be done in upgrading all required mechanisms to cater for digital economy.
Obviously like many of the countries studied above, Tonga has established Consumer Protection mechanisms including Communications Act, 2015, Competition and Consumer Protection Commissions Act, Consumer Protection (Product Safety & Labelling Standards Regulations), and established unit within the Ministry responsible which has a mandate over making sure consumers are protected from harmful marketing tactics. https://ago.gov.to/cms/images/LEGISLATION/PRINCIPAL/2015/20150026/CommunicationsAct2015_1.pdf.
Interestingly, the legislation has catered for mandates whereby Regulators could form or establish advisory committees to assist and contribute in views for the Regulator’s considerations before making any decisions.
The Telecommunications Regulator’s Office is placed under the ambit of the ministry for communications http://www.mic.gov.to/component/content/article/6643-regulator.
French Polynesia https://etradeforall.org/app/uploads/2018/07/French-Polynesia.pdf has a lot to be done to bring up its status in terms of consumer protection generally and specifically in the digital world. Although there is typically a duopoly market and competition existed in such a beautiful island state, there is still a lot to work on particularly to get the nation to the next level of Digital evolution.
There are definitely developments in terms of high speed internet and pricing of such services however, there is no guarantee for consumers to feel confident and trusted on services provided.
Overall, the information collected is very limiting and may be because it is a French country thus research must be in French in order to obtain quality information.
In Vanuatu, there are quite a number of consumer protection mechanisms in place. Specifically on Telecommunications, Telecommunications, Radiocommunications and Broadcasting Regulator (TRBR) https://www.trr.vu/en/consumer/consumer-protection is responsible for consumer protection and other relations in Telecommunications, Radiocommunications and Broadcasting Sector. The CERT Vanuatu under the office of the Chief Information Officer, through the Office of the Prime Minister was also established. Vanuatu Bureau of Standards as also established to promote best practices and especially ISO27001 standards across any products and services offered in Vanuatu. Additionally, there is Vanuatu Intellectual property Rights (IPR) and other Regulatory bodies such as the Financial Regulator, Civil Aviation Regulator, Utilities Regulator, Maritime Regulator and Land Transport Authority. All these Regulatory bodies are somehow interlink with some of their respective regulatory works.
Interestingly, for Vanuatu, there is no Consumer Protection Body established to or even any
Government Policies on Consumer Protection and Market Competition activities. However, the National ICT Policy https://ogcio.gov.vu/images/Vanuatu-National-ICT-Policy-EN.pdf which needs to be revised has also promoted consumer protection in the telecommunications sector.
Although Vanuatu through TRBR has done a lot on Consumer Activities https://www.trr.vu/en/consumer/consumer-protection, there is certainly a need to upgrade its approach on how consumer protection activities be carried out considering the continuous digital evolution. The Government also needs to review its approach policing such fast evolution.
3. Findings on Commonalities
Almost all selected countries do have complaint handling processes in place for their respective citizens. Additionally, awareness and educational programs are key activities which are recognized and carried out by almost all institutions.
The establishment of Competition and Consumer commissions are also common although are varied from one country to another. For example, in PNG, the Commission is independent operating while in other countries are looked after by the responsible Government Ministries.
Majority of the Island States have established respective ICT policies however, the policies are framed to promote market liberalization. We all have realized that the trend of market liberalization is starting to remain steady particularly in small Island States however the trend of fast technological evolution is sky rocket.
ICT Policies needs to be revised. Regulatory frameworks and regimes needs to be reviewed and be upgraded to rules and or policies that support and promote collaborative regulatory regimes. Regulators also need to consider the regulatory frameworks, tools and mechanisms that are currently in place and review their effectiveness whether they are still fit to serve their purposes.
4. Unique and Effective approaches
4.1 Policy level
In Samoa through Ministry responsible, Ministry for Information and Communications has set out clear and concise directions through its respective and required policies such as:
- National Broadcasting Policy;
- National ICT Policy;
- National Broadband Policy;
- National Cybersecurity Strategy 2016 – 2021
- National Social Media Policy and other related policies.
Samoa could be used as the model for policy making because these clear directors has and will assist respective institutions on implement and enforce what is required from the Policy perspectives.
Majority of the Countries selected above have very limited policies which are required from the Government’s perspectives.
4.2 Compliance and Monitoring
Given digital illiteracy is one major contributing factor that the Island nations are facing, and the topography each country has, Consumer Council of Fiji and TRBR are implementing and promoting initiatives that are contributed to positively impact the consumer’s behavior in making an informed choices. Consumer council of Fiji has initiated and now implementing Community Consumer Advisory Groups (CCAG) across Fiji Islands to be the voice of Consumer Council on ground.
With the similar approach, TRBR is currently implementing its initiative known as Community Consumer Champions recruited across Vanuatu particularly representing the six provinces and 2 municipal councils.
These initiatives have proved to be effectively working and serving the purpose of promoting consumer protection at the rural level.
Tonga for example, the Telecommunications Legislation that is enforce by the Ministry of ICT has made a clause mandatory for the Regulator to establish advisory committees to assist with providing views and perspectives representing respective consumer groups to voice their views on any consumer protection activities before any decisions are made by the Regulator.
4.3 Generations of Regulatory Regime of the Small Island States
As per the 2017 ITU ICT Regulatory Tracker, majority of the Small Island States are still promoting generations 1, 2 and 3 of the ICT Regulations which has limited functions to cater for digital economy. Such generations as:
- Generation 1 – Regulated Monopolies, command and control by Government;
- Generation 2 – Opening markets, partial liberalization and privatization across layers;
- Generation 3 – Enabling environment, investment, innovation and access dual focus on stimulating competition in service and content delivery and consumer protection;
Additionally, given, majority of the Regulators are catching up with required rules and regulations to effectively regulate the market industry, it is time that each respective countries must consider leapfrog to generation 4 (integrated Regulations led by economic and social policy goals) or 5 (Collaborative regulation, inclusive dialogue and harmonized approach across sectors) of the regulatory regimes.
5. Options of way forward actions
Given majority of the island nations are operating in silos, establishment of regulatory bodies are costly, and lack of human capacity to run such bodies, the following are considerable options going forward:
- Majority of the nations have considered establishing an independent Competition and Consumer Commission. This independent commission is one best option to consider given its mandate is general. This option is most suitable if we are to consider generation 5 of the ICT regulations described by the ITU.
- At the national level, harmonization of all legislation that are currently promoting consumer protection is required and merge the most suitable and appropriate regulations to regulate digital economy.
- As much as possible, promote independent Regulatory Authorities given Government is also a consumer. Therefore, expand the scope of the current Regulatory Authorities to not only regulate mobile services but importantly data services.
- Considering option a), more community champions or consumer advisory groups be established or trained to understand the requirements of digital economy.
- The Government should already establish respective national digital roadmap to guide respective authorities on what is expected. This road map should take into consideration the IoT activities, AI activities, data privacy, Cybersecurity and cybercrime activities, multimedia information’s, and more other e-commerce activities.