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E-commerce has “emerged as an important tool to facilitate the conduct of business for consumers and businesses alike” across the globe with an estimated “transaction of $3.535 trillion by 2019” and Bhutan is no exception. E-commerce is generally conducted by “Click-Wrap” or “Click-Through” or “Web-Wrap”. These are “electronic contracts that require the user to scroll through terms and conditions and to expressly confirm the user’s agreement to the terms and conditions by taking some action” such as “I Accept” or “I Agree.”

In Bhutan, e-commerce plays a crucial role in situations like Covid-19 that will help ensure reliable delivery of essential goods without having to physically go to the groceries.  E-commerce will help reach Bhutan’s local products to the international market and global products to enter Bhutan at much faster rate through the virtual transaction. As a result, the Ministry of Economic Affairs framed the Guidelines on E-Commerce, 2019.

This Guideline says: “E-commerce as transactions of goods or services through the internet, mobile device or other information networks.”  There is confusion, however.

On one hand, the guideline seems to recognise all legal platform operators, including the social media. On the other hand, Section 8.2 requires platform operator to “take necessary disposition measure in accordance with the customs Act and other relevant laws in force” and “report to authorities if found selling restricted or prohibited goods on its platform.”

If the platform includes social media, how do regulatory authorities exercise their authority over these social networking platforms? If the guideline is intended to exclude social media platforms, this guideline may be almost functionless as social media such as Facebook play a major role in e-commerce in Bhutan.

Further, the sections 8.2.2, 8. 2.3, and 8.2.4 mandates that “information on goods and services, platform service agreements, trading rules or links to such information at a conspicuous position on the homepage of its website, for 30 days.”

How does a car seller display this information if that seller uses social media instead of his own business website?

This guideline mandates the protection of personal information of consumers but also relies on other undefined laws, thus making such protection redundant.  Section 16.1 and 16.2 seem to contradict each other. Section 16.1 allows the “Platform operator (seller/service provider) to choose the appropriate system to resolve the consumer complaints,” whereas Section 16.2 states, “In case of disputes, the aggrieved party may approach the office of the consumer protection for grievance redressal.”

Though tax provisions are important in any e-commerce legislation, this guideline remains silent.

Thus, though this guideline must have been framed with the best intentions to ensure the right to business for Bhutanese people by using e-platforms and protecting consumer rights, there seem to exist too many ambiguous provisions. Regulations so become unenforceable.

We must learn from strong e-commerce legislation of EU and United States thath are generally regulated through strong enforceable Standard form E-Contracts or Digital Contracts and consumer protection principle reforms.

Sonam Tshering

Lawyer, Thimphu

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