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Martin Doris, Digital Content Contracts, the Right of Withdrawal, and the Drafting of a Hong Kong Consumer Rights Ordinance, The Chinese Journal of Comparative Law, Volume 3, Issue 1, March 2015, Pages 47–77, https://doi.org/10.1093/cjcl/cxu018
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Abstract
Digital content contracts have received comparatively little scrutiny in Asian markets, particularly in Hong Kong. Such contracts pose significant challenges for sales law generally and complicate the design of appropriate consumer remedies. The marketing of digital content contracts is equally problematic when considered from a consumer protection perspective. In comparison with the USA and the European Union (EU), where regulators and the academic community have engaged actively with the proliferation of digital content and the need to guarantee fairness in consumer markets, there has been little engagement with the potential pitfalls for consumers in Hong Kong. The growing demand for online and app-based games, for example, is a consumer trend that has to date received insufficient attention. In the United Kingdom (UK), the Office of Fair Trading (OFT) has recently examined the provision of online and app-based games and has considered, in particular, those games targeted at children. It has further published a set of principles aimed at better regulating the domestic UK market. This article examines the OFT principles, its analysis of the industry, and key aspects of its consultation process. It considers whether a similar approach is required in order to better protect Hong Kong consumers. It further discusses whether those lessons learned in addressing the marketing and sale of online and app-based games have a broader application to digital content contracts more broadly. Building on the recent OFT experience, the article discusses wider consumer protection developments, particularly in the EU, aimed at best protecting consumers of digital content. It highlights the growing focus of regulators in the EU on information duties and general consumer rights. The article examines ways of similarly bolstering consumer redress mechanisms in Hong Kong and discusses the merits and potential design of a new consumer rights ordinance.
