Business through Internet: A Quest for Legal Framework
In absence of proper and up-to-date legal framework in place, administrative regulations seem to be governing the digital commerce operations in Bangladesh. Most of the transactions-related rules now in force in the country are derived either from Bangladesh Bank Guidelines or Guidelines of the Ministry of Commerce. On 4 July 2021 the Ministry of Commerce issued the 'The Digital Commerce Operations Guidelines, 2021' (hereinafter referred to as Guidelines, 2021). One of the aims of the Guidelines, 2021 is to ensure transparency and accountability of the mushrooming e-commerce operators. Chapter 3 of the Guidelines, 2021 provides that all the existing concerned laws of the country will apply to the digital commerce operations. As such, it seems that the government has no plans to enact a separate statute any time soon to regulate digital commerce operations. But the existing laws that govern commercial operations in Bangladesh are not sufficient to meet the demand of the current situation.
The Guidelines, 2021 render the responsibility to the marketplace authority to take proper steps against allegation brought by a consumer regarding goods or services. It states that each digital commerce establishment shall appoint a compliance officer whose duty will be to communicate and coordinate with the Directorate of Consumer Rights Protection and other concerned organisations. But without bringing about necessary amendment in this connection to the Consumer Rights Protection Act, 2009 this provision will be ineffective. The Guidelines 2021 manifest that consumer can also lodge complaints in concerned regular courts.
Cases of fraud, misrepresentation etc. may be remedied with recourse to the punitive laws like – the Penal Code, 1860, the Money Laundering Prevention Act, 2012, the Digital Security Act, 2018 etc. But existing provisions enunciated in these laws may not suffice to deal with offences relating to e-commerce operations. For example, if an e-commerce operator is charged with cheating under the Penal Code, 1860 for breach of online contract or for commission of fraudulent act online, the prosecution will have difficulty in proving the ingredients of the offence. This is because provisions of online transactions are yet to be incorporated in the relevant sections of the concerned laws.
Furthermore, Money Laundering Prevention Act, 2012 may be used to curb the swindle of money against transactions made via payment gateways platforms. However, the law is not designed in such a way so that it can be applied against defaulters of e-transaction processes. Section 23 of the Digital Security Act, 2018 allows fake ID related offences to be tried in Cyber Tribunals. The government has raised the number of Cyber Tribunals from 1 to 8 this year to try cyber offences at division level. But the fact is that criminal justice system in Bangladesh is a time-consuming, lengthy and tiresome process which often frustrates the victims of online frauds. This coupled with the difficulty of proving online frauds before court eventually demoralises a victim to file a case against the offender or persuades him to opt in for alternative measures e.g. out-of-court settlement with the offender or defaulter, wherever possible. Therefore, it is vital to find out ways for speedy disposal of disputes arising out of digital commerce operations. Moreover, in addition to ensuring punishment of the offenders, the government should put more emphasis on the redressal of victims of online fraud through adequate compensation.
The Guidelines, 2021 do not contain any express provision for the protection of the rights of the sellers. However, they can seek remedy under the provision of Contract Act, 1872 or through the Sale of Goods Act, 1930 - neither law has been updated in a long time. Therefore, for expeditious disposal of commercial disputes raised both by buyer and seller, the government may mull over enacting separate legislation and establishment of separate specialised courts in the country.
The Guidelines, 2021 acknowledge advance payment and refund of advance money through debit card, credit card, bank transfer, mobile banking etc. It provides that for digital commerce transactions Bangladesh Bank approved escrow service may be used. The Guidelines, 2021 made provisions for refund of advance payment made by a consumer in e-commerce in cases of non-delivery of goods or services. However, it is pertinent to mention here that paperless payment system has been in operation in Bangladesh under the Bangladesh Bank approvals. The existing legal framework authorises Bangladesh Bank to issue rules, procedures, guidelines, operating directives or specific permissions to introduce online payment systems. Bangladesh Automated Clearing House (BACH) includes Bangladesh Automated Cheque Processing System (BACPS), and Bangladesh Electronic Fund Transfer Network (BEFTN). These modern payment systems have brought significant change in the interbank fund transfer mechanisms of the country. But it is noticeable that these significant and major changes brought about in the payment systems are made only through issuance of directives and guidelines by the Bangladesh Bank. No statutory law consolidating all the rules, regulations and directives regarding payment systems has so far been passed by the Parliament. Though the government once took an initiative to introduce the Payment System Act, 2015, the proposed bill is yet to see the light of the day.
To sum up, it transpires that administrative guidelines and central bank regulations are the only basis of control and management of digital commerce operations these days in Bangladesh. But scattered guidelines and regulations cannot be an alternative to establishment of a well-planned and comprehensive legal framework by the Parliament to regulate and monitor digital commerce operations in the country. It cannot be gainsaid that we will certainly see further acceleration of digital commerce in the days ahead. The urgency of enactment of a statutory law consolidating all the rules, regulations and directives regarding control and management of digital business operations and online payment systems can hardly be ignored these days.
The writer is a Professor of Law at the University of Rajshahi.