简介 In brief

“…根据澳大利亚法律,我们有ACCC会帮我们…“

以上截自一个美国游戏发布平台,Steam的客户写给Steam的客服的邮件。这个案子关于一家在澳大利亚有运营的美国公司。这个案子证明了即使一个公司在澳大利亚没有员工,消费者还是拥有澳大利亚消费者法律的保护。【下面会跟大家分享这个案子】

“…Under Australian law, we have the ACCC who would do that for us…” complained one customer in the recent case of Valve Corporation v Australian Competition and Consumer Commission

This dispute over the US company’s (who were operating in Australia) refund policies has highlighted the protections available to consumer under Australian Consumer Law (ACL).

Even if the company and its employees are not based in Australia, consumers purchasing the products in Australia may still be able to access consumer protections.

须知 What you need to know

澳大利亚消费者法律提供了什么保护?

 What are the protections under the ACL?

  1. 物品品质保障 Guarantee as to acceptable quality
  2. 物品或者服务符合商家所保证的物品用途 Guarantee as to fitness for any disclosed purpose
  3. 物品符合描述或者说明 Guarantee as to the goods being as described
  4. 物品与样品或者展示模型必须匹配 Guarantee as to the goods corresponding with a sample or demonstration model
  5. 服务必须在合理的期限内完成 Guarantee as to reasonable time for supply of services

Can I access the protections under the ACL?

Under the Australian Consumer Law, the protections are available to consumers.

你是“消费者”吗?

Are you a consumer?

“消费者”必须符合以下一种情况:

  1. 购买的物品价格不超过 AUD$40,000; 或
  2. 该物品一般来说是个人物品或者家居用品;或
  3. 该物品如果是车辆或者拖车,必须主要用途是在公共道路上载运物品。

物品的定义包括车辆,船,动物(包括鱼),花草树木,矿物,水,电,瓦斯等。

According to the ACL, a person is a consumer if at least one of the following is met:

  1. The amount paid or payable for the goods is no more than AUD$40,000; or
  2. The goods were ordinarily used as personal, domestic or for household goods (Goods include vehicles, ships, animals including fish, trees and crops, minerals, water, gas, electricity etc.)
  3. ; or
  4. In the case of a vehicle or trailer, the vehicle or trailer is acquired primarily to transport goods on public roads.

如果你购买的是“服务”,只要符合以下条件,也可以作为“消费者”,得到澳大利亚消费者法律的保护:

  1. 购买的服务价格不超过 AUD$40,000; 或
  2. 该服务一般来说是用于个人物或者家居。

A person acquires “services” as a consumer if at least one of the following is met:

  1. The amount paid or payable for the services is no more than AUD$40,000; or
  2. The services were ordinarily acquired for personal, domestic or household purposes.

如果你是消费者,在澳大利亚消费者法律下,你拥有以上消费者保障。

If you fit within the requirements above, you are a consumer and entitled to various consumer guarantees, including accessing a refund, prescribed under the Australian Consumer Law.

When can I get a refund?

Whether a consumer can obtain a refund depends on whether there is a major failure to comply with the consumer guarantee.

如果物品有微小的问题,或者商家可以弥补的问题,消费者可以要求商家在合理的期限内弥补,商家可以选择退款,修复或者更换。如果商家没有在合理的时间之内给消费者一个解决方案,消费者则可以要求退款,更换,或者找第三方修理物品并且跟商家索赔合理修复费用。

If the failure to comply with the guarantee is not a major failure, the consumer may require the supplier to remedy the failure within a reasonable period of time. The supplier may choose to replace, refund or repair the goods within a reasonable time. If the supplier does not remedy the failure within a reasonable time, the consumer may elect to have the goods replaced, refunded, or fixed by a third party and claims reasonable cost of repairs from the supplier.

如果物品有严重的问题,或者商家无可弥补的问题,消费者可以选择退款,更换或者保留物品并且获得减价作为补偿

If the failure to comply with the guarantee is a major failure or cannot be remedied, the consumer is entitled to a refund, exchange, or may keep the goods and receive a discount or partial refund.

什么是严重的问题?What is a major failure?

  1. 一个合理的消费者在知道物品的问题本质和程度之后,不会选择购买这个物品
  2. 如果物品不符合描述或者说明
  3. 如果物品不符合样品或者展示模型
  4. 如果物品不能达到一般用途并且在短期内不能进行修补
  5. 物品质量不安全

 

  1. If a reasonable consumer, who is fully aware of the nature and extent of the failure of the goods, would not have purchased the goods
  2. If the goods do not match their description
  3. If the goods do not match the sample or demonstration model
  4. If the goods cannot be used for their ordinary purpose and cannot be remedied within a reasonable period of time
  5. If the goods are unsafe

只要不是在拍卖情况下,商家在所卖的物品都存在以上保障。如果商家和消费者签订的任何合约里有条款声明消费者保证无效,该合约条款将被视为无效。

The guarantees above apply to goods that are not sold by auction. Any contract term that purports to contract out of the consumer guarantees prescribed under the Act is void.

Case Study

案例: 澳大利亚竞争与消费者委员会近期控诉Valve一案

Case Study: Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224

Valve是一个美国公司,其公司拥有名为Steam的品牌。Steam是一个著名的网上发布电脑游戏的平台。Valve的生意和所有员工都不处于澳大利亚。Steam的订阅者其中220万人处于澳大利亚。订阅者可以在Steam的程序中购买电脑游戏。订阅者在注册账户时需同意Steam的订阅条款。Steam的订阅条款当中包括了不得退货,和,消费者法律无效等,具有排除澳大利亚消费者法律的效果的条款。Steam的官方网站上也声明不接受退款。同时,Steam的客服人员也频频表示不接受退款。

Valve is an American company which owns an online gaming distribution business called Steam. None of Valve’s business and employees are based in Australia. Amongst Steam’s subscribers, 2.2 million users are located in Australia. Users can purchase video games from Steam’s library upon opening an account with Steam and agreeing to its subscriber agreement (SSA). The SSA included a term, amongst other things, that users are not entitled to a refund in any circumstances, and seek to exclude consumer guarantee of acceptable quality, under the Australian Consumer Law. Steam’s website also included statements stating the no-refund policy. Steam support representatives also made representations via online chats of the no-refund policy.

法官虽然理解绝大多数的用户并不会阅读订阅条款,但是,会被订阅条款误导的用户是少数因为游戏有缺陷,为了得到退款,而去阅读条款的用户。

The judge noted that most users would not have read the SSA. However, the few consumers who were likely to be misled by the representations in the SSAs would be those who read the terms and conditions of the SSA to ascertain whether they could obtain a refund for a game that they considered to be defective.

法官判定Valve是在澳大利亚运营的,即便:

  1. Valve是一家美国公司,总公司在华盛顿;
  2. Valve的网站服务器都在华盛顿;
  3. 游戏订阅付款都是以美金计算;
  4. Valve在澳大利亚并没有任何注册的公司,子公司或者员工。

The judge held that Valve undoubtedly carried on a business in Australia. This is despite that:

  1. Valve is a United States corporation based in Washington;
  2. Valve operates a website that is hosted and fully supported by servers in Washington;
  3. Game subscriptions are processed in US dollars;
  4. Valve does not have any registered office, subsidiaries or employees in Australia.

其中一个判定的原因是因为Valve拥有220万个澳大利亚用户,并从其中持续获得大笔收入。

One of the reason is because Valve had approximately 2.2 million Australian accounts and earned significant revenue from Australian consumers on an ongoing basis.

所以,澳大利亚消费者法适用。澳大利亚消费者法的保障也不能被任何私下签订的协议或合约抵消或排除。

Therefore, the Australian Consumer Law applies. The consumer guarantees under the Australian Consumer Law cannot be excluded, restricted or modified by contract.

Valve被判罚款澳币$3百万块。

Valve was ordered to pay a pecuniary penalty of $3 million.

Conclusion

即使一个公司在澳大利亚没有员工,如果在澳大利亚运营或者有收入,澳大利亚的消费者还是可以拥有澳大利亚消费者法律的保护。这个保护不能被任何私下签订的协议或合约抵消或排除。

Even if a company is not based in Australia, consumers using the service or purchasing its goods in Australia may still be entitled to the protections under the Australian Consumer Law. The consumer guarantees under the Australian Consumer Law cannot be excluded, restricted or modified unilaterally or by contract.

这篇文章仅仅是为大家普及一些基本的法律常识。并不适用于你个个人情况。对于某种特定情况,澳大利亚消费者法规里阐述许多特许情况和例外。如果想咨询更多,请联络我。

This article aims to provide you with very general legal information and cannot constitute legal advice to any tailored circumstance. The Australian Consumer Law prescribe a number of exceptions in specific circumstances. The Australian Consumer Law (ACL) is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth). If you wish to know more, please do not hesitate to contact me.

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