Counterfeit or fake goods being sold online is a global problem that seems to be on the increase, with many South Africans also falling victim.
According to a report by the Sunday Times, customer Elpesh Peters was recently duped into buying a fake Guess watch online through the Web site Wicount. The newspaper reports the watch was advertised as R549, reduced from R1 500, and no indication was given that it was counterfeit.
Peters returned the watch directly to Wicount, which promised him a refund, but two weeks later he has reportedly still not seen a cent.
When the newspaper approached Wicount for comment, sales manager Johan Venter said the watch was definitely fake, and customers should receive a full refund. Venter reportedly admitted Wicount does not often see the products before they are shipped to customers and it was a mistake to think the fake watches were legitimate.
Peters' case is seemingly not unique. A complaint posted by Shawn Meyer on customer service site Hellopeter claims he has received counterfeit goods three times when purchasing from a reputable online seller. He was only refunded for two of these purchases. Meyer claims the Web site promised to investigate the counterfeit goods, but still allows the sellers to sell their goods on the Web site.
Another complainant on Hellopeter also claims she received counterfeit goods that were advertised as original on an online site. She says instead of the original product, she received a cheap replica of the product that does not work. She did not indicate whether she demanded a refund.
The US-based Consumer Fraud Centre reported in December that $2 billion in fraudulent sales in counterfeit and fake goods were racked up between November and December 2012. The centre reports the global trade in counterfeit and fake goods grew from 1.85% of total global trade in 2000 to almost 5% in 2011, amounting to $600 billion in counterfeit goods.
Legal backing
Nicholas Hall, an attorney with Michalsons Attorneys, says prior to the Consumer Protection Act (CPA) coming into effect, there was little to no consumer law for offline purchases beyond the common law. However, the Electronic Communications and Transactions (ECT) Act has always given protection to consumers who bought goods online.
"The CPA now protects both online and offline purchases by consumers. Online purchases have some additional protection afforded by the ECT Act."
Hall says, while the terms and agreements of a number of online retail Web sites absolve them of all liability, they also confirm they act as agents for the sellers. "To my mind, section 41 of the CPA dealing with false, misleading or deceptive representations, would apply [in a case like the Wicount purchase], meaning Wicount will have to take reasonable steps to ensure they are not engaging in such activity."
Hall says a supplier that provides counterfeit goods to a Web site will likely be in breach of a variety of sections of the CPA and could potentially face claims from the consumers or the National Consumer Commission.
"Also in terms of section 51, when read with section 41, the entire transaction is void, meaning the consumer is entitled to return the goods, receive a full refund, and, I would argue, have the supplier pay for the costs of the delivery."
Hall notes, should a consumer be unable to get a refund from either the online retailer or the supplier, an action can be launched in the small claims court or magistrates court, or a complaint submitted to the National Consumer Commission.
Hall says consumers should educate themselves about their rights and be discerning about where they shop. He suggests reading reviews on the site and doing an Internet search to see if the retailer has been in any unscrupulous consumer action, before making a purchase.
"Lastly, trust the old adage: if it seems too good to be true, it probably is."
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