简介 In brief
“…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
What are the protections under the ACL?
- 物品品质保障 Guarantee as to acceptable quality
- 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
- 物品符合描述或者说明 Guarantee as to the goods being as described
- 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
- 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.
Are you a consumer?
- 购买的物品价格不超过 AUD$40,000; 或
According to the ACL, a person is a consumer if at least one of the following is met:
- The amount paid or payable for the goods is no more than AUD$40,000; or
- 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.)
- ; or
- In the case of a vehicle or trailer, the vehicle or trailer is acquired primarily to transport goods on public roads.
- 购买的服务价格不超过 AUD$40,000; 或
A person acquires “services” as a consumer if at least one of the following is met:
- The amount paid or payable for the services is no more than AUD$40,000; or
- The services were ordinarily acquired for personal, domestic or household purposes.
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.
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.
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?
- 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
- If the goods do not match their description
- If the goods do not match the sample or demonstration model
- If the goods cannot be used for their ordinary purpose and cannot be remedied within a reasonable period of time
- If the goods are unsafe
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: Valve Corporation v Australian Competition and Consumer Commission  FCAFC 224
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.
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.
The judge held that Valve undoubtedly carried on a business in Australia. This is despite that:
- Valve is a United States corporation based in Washington;
- Valve operates a website that is hosted and fully supported by servers in Washington;
- Game subscriptions are processed in US dollars;
- Valve does not have any registered office, subsidiaries or employees in Australia.
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.
Therefore, the Australian Consumer Law applies. The consumer guarantees under the Australian Consumer Law cannot be excluded, restricted or modified by contract.
Valve was ordered to pay a pecuniary penalty of $3 million.
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.
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.