The rights and obligations of the owner of the aggregator of information about goods and services in relations with the consumer

Chagina Elizaveta Mihailovna Junior Researcher ; Department of Private Law ; Institute of Legislation and Comparative Law under the Government of the Russian Federation 31 Bolshaya Cheremushkinskaya str., Moscow, 117218, Russia chagina.elizaveta1997@mail.ru Other publications by this author

The rapid development of digital technologies has led to an increase in the number of transactions concluded by consumers in online format. Thus, according to statistics, the share of sales via the Internet in the total volume of retail trade is growing by one to two percent annually (see the share of sales via the Internet in the total volume of retail trade // Retail trade and catering – URL: https://rosstat.gov.ru/statistics/roznichnayatorgovlya ). At the same time, a significant number of transactions are carried out through the so–called marketplaces - aggregators of information about goods and services that provide consumers with the opportunity to familiarize themselves with the seller's (contractor's) offer, conclude a contract, and pay for goods or services (see the preamble to the Law of the Russian Federation dated 02/07/1992 No. 2300-1 "On Consumer Rights Protection, hereinafter referred to as the Law of the Russian Federation No. 2300-1). Thus, in a significant part of transactions carried out remotely, the seller (performer) and the citizen-consumer do not interact with each other directly, which raises the issue of regulating their relations, mutual rights and obligations. At the same time, civil law regulation, on the one hand, should guarantee equal protection and protection of consumers' rights, regardless of the form in which they conclude a contract - in standard or remote form, through an aggregator of information about goods and services or not – but on the other hand, ensure a balance of interests of the parties. ^{[1, p. 23]}

In this study, it is proposed to consider one of the aspects of the legal regulation of e-commerce, namely the issue of the rights and obligations of the owner of the aggregator of information about goods and services in legal relations with consumers. It seems necessary to investigate the state of legal regulation, as well as analyze the existing problems. It is proposed to use the formal legal method as the methodological basis of the study.

In modern legal literature, much attention is paid to the consideration of the issues of regulating the activities of aggregators of information about goods and services in terms of their relationships with sellers of goods or performers, in particular, in the works of A.A. Ivanov ^[2], A.E. Kirpichev ^[3], L.I. Safargaleev ^[4]. The issues of the relationship between the owners of aggregators of information about goods and services with consumers have also been the subject of special consideration in scientific papers. Thus, the issues of defining the concept of an aggregator of information about goods and services, about its rights and obligations in relations with consumers were considered in sufficient detail in the works of A.N. Koroleva ^[5] and N.G. Kuznetsova ^[6], however, both of these works were published even before the amendments to the Law of the Russian Federation No. 2300-1 and the appearance of It contains provisions regulating the position of aggregator owners in legal relations with consumers. In later studies, the authors considered practical problems of applying consumer protection legislation in relation to aggregator owners, such as in the work of A.F. Pyankova ^[7] or in the article by O.V. Gutnikov and E.M. Chagina. ^[8] At the same time, the accumulated experience in applying the rules on owners of information aggregators requires further reflection, identification of remaining gaps in legislative regulation and formulation of proposals to solve existing problems.

The concept of an aggregator owner was introduced into the Law of the Russian Federation No. 2300-1 by Federal Law No. 250-FZ dated July 29, 2018 "On Amendments to the Law of the Russian Federation "On Consumer Rights Protection". This means an organization, regardless of its organizational and legal form, or an individual entrepreneur who owns a computer program and/or owns a website and/or a website page on the Internet and who provides consumers with the opportunity to simultaneously:

a) to get acquainted with the seller's or contractor's offer to conclude a contract for the purchase and sale of goods or a contract for the provision of paid services;

b) conclude a purchase and sale agreement or a contract for the provision of paid services with the seller or contractor;

c) make an advance payment for the specified product or service by cash payments or money transfer to the owner of the aggregator within the framework of the applicable forms of non-cash payments.

The above definition allows us to conclude that the aggregator performs not only the functions of providing information to consumers about the seller (performer) and about the product (service), and therefore one cannot agree with the proposed qualification in the literature of an aggregator of information about goods and services as an information intermediary in relations with the consumer. ^{[9, p. 127]} The study of contracts concluded by the owners of large aggregators with sellers also allows us to conclude that the owner of the aggregator essentially acts as an agent of the seller or contractor. For example, it follows from paragraph 1 of the Contract for Sellers of Goods on the Ozon Platform that Ozon undertakes to: (1) for a fee, at the expense of the seller, make transactions related to the sale of the seller's goods through the platform; (2) for remuneration, make transactions at the expense of the Seller with third parties involved in the fulfillment of certain obligations related to the sale of the seller's goods through the platform; (3) to provide services to the seller in accordance with the annexes to the contract, and the Seller undertakes to pay for them; in this case, the rights and obligations for transactions related to the sale of the Seller's goods and concluded on his behalf arise directly from the Seller in accordance with Article 1005 of the Civil Code of the Russian Federation (see the Contract for Sellers of Goods on the Ozon Platform – URL: https://seller-edu. ozon. ru/contract-for-sellers/contract-goods/contract-for-sell-goods-on-ozon#1). Another example is the terms of a standard contract concluded between the seller and Wildberries. According to section 3, the seller assigns, and Wildberries undertakes, for remuneration, to perform actions on behalf of and at the expense of the seller to conclude and execute purchase and sale transactions with retail and wholesale buyers, as well as on behalf of the seller to accept payment for the goods and transfer the proceeds from the sale of goods to the seller (see the Sale Offer product on the Wildberries website – URL: https://static-basket-02 . wbbasket . ru/vol20/offers/prd/product/68/fd80d959-87b3-4e13-b488-ae98f091a50c. pdf). At the same time, the seller's agreement with the aggregator owner may contain indications of conditions, including those concerning consumers, for example, the right of the platform to establish its own rules for the return of goods by the buyer, which do not worsen his position in comparison with the law (see the Agreement for Sellers of Goods on the Ozon Platform – URL: https://seller-edu . ozon. ru/contract-for-sellers/contract-goods/contract-for-sell-goods-on-ozon#1), or the provisions on the provision of goods delivery services by the platform (see the Product Sale Offer on the Wildberries website – URL: https://static-basket-02 . wbbasket ru/vol 20/offers/prd/product/68/fd 80 d 959-87 b 3-4 e 13-b 488-ae 98 f 091 a 50 c. pdf), etc. This circumstance determines that the consumer interacts with the owner of the aggregator not only at the stage of familiarization with information about the seller (contractor) and the product (service) and the conclusion of the contract, which raises the issue of the need to detail the legal regulation of the activities of the owners of aggregators.

At the same time, legislation in the field of consumer protection regulates the relationship between consumers and the owners of the aggregator, mainly in terms of providing the consumer with information about the seller (performer) and the product (service), which is also highlighted in the literature. ^{[7, p. 306]} Thus, in accordance with paragraph 1.2 of the Law of the Russian Federation No. 2300-1, the owner of the aggregator is obliged to inform consumers of the following information about himself, as well as the seller or performer:

- company name(s) or surname, first name, patronymic (if any),

- location (address),

- operating mode,

- the state registration number of the record of the establishment of a legal entity or the state registration number of the record of the state registration of an individual as an individual entrepreneur),

- information about the changes in the specified information.

At the same time, the law also imposes on the seller (contractor) the obligation to provide the owner of the aggregator with the above information about himself, as well as to notify about changes in such information (paragraph 1.3 of Article 9 of the Law of the Russian Federation No. 2300-1).

The amount of information about the product or service that must be provided by the aggregator owner to the consumer is determined on the basis of Articles 10 and 26.1 of the Law of the Russian Federation No. 2300-1. It should be noted that the law does not directly say that the owner of the aggregator is obliged to provide information about the product or service to the consumer ^{[8, p. 11]}, however, this follows from the essence of the legal relationship involving the owner of the aggregator, as well as from the provisions of Article 12 of the Law of the Russian Federation No. 2300-1, which establishes the responsibility of the owner of the aggregator for providing the consumer untrue information about the seller (performer) or about the product (service).

In accordance with paragraph 2.1 of Article 12 of the Law of the Russian Federation No. 2300-1, the aggregator owner is obliged to compensate the consumer for losses caused to him as a result of providing false information about the product (service) or about the seller (performer). The responsibility of the aggregator owner for properly informing the consumer is determined by the specifics of the legal relationship, when the consumer, in the absence of direct interaction with the seller or contractor, is forced to rely on the information about the counterparty or the product (service) provided by the aggregator when concluding the contract. ^{[8, p. 13]} At the same time, the importance of proper consumer information should not be underestimated. Thus, reliable information about the seller (performer) allows the consumer not only to choose the person with whom he intends to enter into a contractual relationship, but also provides the opportunity to clearly identify the addressee of claims in case of violation of his rights. ^{[10, p. 97]} As for information about a product or service, its reliable nature provides the consumer with the opportunity competent choice of a product or service, acting in this regard based on their own interests, which also increases their level of security in interaction with counterparties. ,,^{[10, c. 99-100; 11, c. 7-8]}

At the same time, the law sets certain limits on the responsibility of the aggregator owner in the case of providing the consumer with information that is unreliable. In accordance with the third paragraph of clause 2.1 of the Law of the Russian Federation No. 2300-1, the aggregator owner is not responsible for losses caused to the consumer as a result of providing him with false or incomplete information about the product or service if the aggregator owner does not change such information provided by the seller (contractor). The courts, when investigating whether the owner of the aggregator of information about goods or services makes changes to the information provided by the seller, are guided by the relevant provisions of the agreements between the seller (performer) and the owner of the aggregator (see, for example, the ruling of the Sixth Court of Cassation of General Jurisdiction dated 07/16/2024 N 88-17508/2024 (UID 63RS0041-01-2023-003793-22); ruling of the Sixth Court of Cassation of General Jurisdiction dated 08/06/2024 No. 88-17202/2024 (UID 63RS0041-01-2023-003810-68); The ruling of the Fourth Court of Cassation of General Jurisdiction dated 10/15/2024 in case No. 88-27379/2024 (UID 23RS0031-01-2023-003385-60).

In the literature, this state of affairs is criticized, in particular, it is pointed out that in this situation the consumer finds himself in a vulnerable position, since, unable to directly interact with the seller or performer, he is forced to rely on information that the aggregator can provide him, which, in turn, is not responsible for verification. the reliability of the information provided by the seller or contractor. ,^{[8, c. 13; 12, c. 76-77]}

The fact that it is the seller or contractor, and not the owner of the aggregator of information about goods (services), who is responsible for the reliable nature of information about the product or service, determines the general rule according to which for the performance of a contract with a consumer concluded on the basis of information provided to him by the owner of the aggregator, as well as for the observance of consumer rights, violations resulting from the transfer of goods (services) of improper quality to the consumer and the exchange of non-food goods of proper quality for similar goods are borne by the seller or contractor (second paragraph of paragraph 2.1 of Article 10 of the Law of the Russian Federation No. 2300-1). A different allocation of responsibility may be provided for by an agreement between the aggregator owner and the seller (contractor).

At the same time, since the owner of the aggregator, in fact, performs the functions of an agent of the seller or contractor, accepting payment for goods or services from the consumer, the consumer is entitled to file a claim against the owner of the aggregator for a refund of the amount of advance payment for goods (services) made by him. In turn, the latter returns the specified amount to the consumer within ten calendar days from the date of such a request, subject to the following conditions:

a) the product (service) for which the consumer has made an advance payment to the bank account of the aggregator owner has not been transferred to the consumer on time (the service has not been provided on time);

b) the consumer has sent a notification to the seller (contractor) about the cancellation of the contract due to the latter's violation of the obligation to transfer the goods (provide the service) within the prescribed period.

In this case, the owner of the aggregator has the right to refuse to refund funds to the consumer if he has received confirmation from the seller or contractor of the consumer's acceptance of the goods or the provision of services to the consumer. However, such a refusal is lawful only if a copy of such confirmation has been sent by the aggregator's owner to the consumer within 10 calendar days from the date of receipt of the request for a refund of the amount of advance payment for the product (service).

The responsibility of the aggregator owner is not limited only by Article 10 of the Law of the Russian Federation No. 2300-1. He is also responsible for including unacceptable conditions in the contract with the consumer (paragraphs 1 and 2 of Article 16 of the Law of the Russian Federation No. 2300-1), for refusing to conclude, execute, amend or terminate the contract in connection with the consumer's refusal to provide personal data, except in cases where the obligation to provide such data is provided for by law or is directly related to the execution the contract (paragraph 4 of Article 16 of the Law of the Russian Federation No. 2300-1), as well as in a number of other cases.

Nevertheless, the literature draws attention to the need to further improve the legal regulation of the activities of aggregators of information about goods and services. [1-3, pp. 39-41; 1-4, pp. 58-59] This problem is fully understood by the legislator. Currently, the State Duma is discussing draft Federal Law No. 445923-8 "On Amendments to the Federal Law "On the Fundamentals of State Regulation of Trading Activities in the Russian Federation" and Articles 12 and 18 of the Law of the Russian Federation "On Consumer Rights Protection". The draft law provides for the specification of the legal regulation of relations between the owners of aggregators and sellers (performers), as well as the owners of pick-up points and consumers. As noted in the literature, "the draft law is a reaction to numerous controversial situations that have recently arisen regularly in the field of electronic commerce, requiring increased attention from the point of view of protecting the rights of all stakeholders." ^{[13, p. 40]} The innovations are partly aimed at strengthening consumer protection. In particular, it provides for the exclusion from the law of the indication to release the owner of the aggregator of information about goods (services) from responsibility for providing the consumer with false information about the product (service) if they do not make changes to the information provided by the seller (contractor).

On the one hand, such a decision simplifies consumer protection, especially in a situation where the owner of the aggregator does not provide the consumer with complete and reliable information about the seller or performer, as, for example, was the case in the case of UBER TECHNOLOGIES LLC (see the Decision of the Ninth Arbitration Court of Appeal dated October 26, 2016 No. 09AP-49985/2016 in case No. A40-146579/16; Resolution of the Arbitration Court of the Moscow District dated 02/21/2017 No. F05-356/2017 in case No. A40-146579/16; Ruling of the Supreme Court of the Russian Federation dated 06/19/2017 No. 305-AD17-6881 in case No. A40-146579/2016) or in the case of Taxi Prestige LLC (see the Ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation The Court of the Russian Federation dated 09.01.2018 No. 5-KG17-220), when, as a result of the actions of the owner of the aggregator of information about services, the consumer had the impression that he was entering into a contractual relationship directly with the owner of the aggregator, and not with a specific contractor. The Supreme Court of the Russian Federation formulated a position on the issue of harm to the life and health of the consumer by the owner of the aggregator of services, to whom the consumer turned to conclude a contract of carriage: the owner of the aggregator is responsible for harm to the life and health of the consumer if the owner of the aggregator concluded a contract of carriage on his behalf or from the circumstances of the conclusion of the contract (for example, advertising signage, information on the Internet site, correspondence between the parties at the conclusion of the contract, etc.) a bona fide citizen-consumer might have the opinion that the contract of carriage is concluded directly with this person, and the actual carrier is his employee or a third party involved in the performance of transportation obligations (see paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 26 dated 26.06.2018 "On certain issues of the Application of Legislation on the Contract for the carriage of Goods, Passengers and Baggage by Road and on the forwarding contract"). It seems that this position applies to all aspects of the aggregator owner's responsibility to the consumer, including in matters of providing information about goods or services. In this case, a formal reference to the existence of an agreement between the aggregator owner and the seller (performer), according to which the aggregator owner does not make changes to the information about the product (service) provided by the seller (performer), will not serve as a basis for refusing to satisfy the consumer's requirements.

However, critical assessments of the complete transfer of responsibility for the reliable nature of information about a product or service to the owners of aggregators cannot be ignored. Such a decision risks losses for the owners of the aggregator, since in some circumstances it can be significantly difficult for them to verify information about a product or service. In this regard, the literature suggests that in such a situation, unconditionally assigning responsibility to the owner of the aggregator for the accuracy of information provided to the consumer would lead to a violation of the balance of interests of the parties, and from this point of view, the current approach of the legislator can be assessed as more optimal. ^{[1, p. 23-24]} An objection to this position may be that in such a situation, the owner of the aggregator is not deprived of the opportunity to demand compensation from the seller or contractor for damages caused as a result of their providing false information about the product or service, however, the consolidation of such an approach to regulation may in some way stimulate unfair behavior of sellers (performers) in relations with the owners of aggregators of information about goods (services). From this point of view, the existing legal regulation is more balanced in terms of taking into account the rights of not only consumers, but also other participants in legal relations.

At the same time, it seems fair to fix the provisions in the law that if the owner of the aggregator has not provided complete and reliable information about the seller (performer), as well as if due to other actions of the owner of the aggregator, a bona fide consumer might have the impression that he enters into a contractual relationship directly with the person who is the owner of the aggregator, and the actual seller (performer) is his employee or a third party involved in fulfilling obligations, the owner of the aggregator to the consumer for providing inappropriate information about the product (service), as well as for violating consumer rights due to the transfer of goods of improper quality to the consumer (provision of services of improper quality), including for causing harm to life and consumer's health.

It is also impossible to ignore the problem of distinguishing the responsibility of the seller (performer) and the owner of the aggregator in a situation where the provision of false information to the consumer was caused by a technical malfunction in the computer program or on the website or the website page on the Internet. Judicial practice proceeds from the fact that the seller who posted the offer on his website does not have the right to refer to a technical malfunction (see the Ruling of the Supreme Court of the Russian Federation dated 05.12.2023 No. 82-KG23-5-K7). The courts take a similar position in a situation where a technical failure occurs in a computer program or on the aggregator's website: in the absence of evidence confirming the fault of the aggregator owner in a technical failure, the seller (performer) is responsible for providing the consumer with false information about the product (service) (see, for example, the decision of the Arzamas City Court No. 2-1233/2023 2-1233/2023~M-443/2023 M-443/2023 dated 07/12/2023 in case No. 2-1233/2023). It seems that in such a situation, the responsibility for providing false information to the consumer should still be assigned to the owner of the corresponding computer program or website on the Internet, that is, to the owner of the aggregator. It is also obvious that the formal reference of the aggregator owner to the existence of an agreement with the seller (performer) that the aggregator owner does not make changes to the information provided by the seller (performer) cannot serve as a basis for releasing him from liability, provided there is evidence that the seller (performer) has provided the proper information. Consideration of this issue, however, inevitably raises the issue of the court taking into account the degree of conscientiousness of consumer behavior. Thus, the opinion is expressed that the fact of a technical failure in itself cannot indicate a violation of consumer rights if the latter was notified in advance of the technical failure in the form prescribed by custom (for example, on the main page of the website) ^{[15, p. 91]}, which should be agreed.

As a result of the study, the following conclusions can be drawn:

The current legislation on consumer protection provides for a relatively balanced distribution of the rights and obligations of consumers, aggregator owners, and sellers (performers) in contractual legal relations. At the same time, in certain situations, consumer rights may be infringed, in particular, if the owner of the aggregator improperly fulfills the obligation to provide the consumer with complete and reliable information about the seller (performer), if, as a result of the actions of the owner of the aggregator, a conscientious consumer citizen gets the impression that he is concluding a purchase and sale agreement or provision of paid services directly with the person who owns the aggregator, and the actual seller (performer) is its employee or a third party involved in fulfilling obligations, as well as in the event that the provision of false information about the seller (performer) or the product (service) to the consumer was caused by a technical malfunction in the computer program or on the website (site page) on the Internet, owned by the aggregator owner.

In this regard, it seems necessary to fix in the law the provision that if the owner of the aggregator has not provided complete and reliable information about the seller (performer), as well as if, as a result of other actions of the owner of the aggregator, a bona fide consumer might have the impression that he enters into a contractual relationship directly with the person who is the owner of the aggregator., and the actual seller (performer) is his employee or a third party involved in fulfilling obligations, the owner of the aggregator to the consumer for providing inappropriate information about the product (service), as well as for violating consumer rights due to the transfer of goods of improper quality to the consumer (provision of services of improper quality), including for causing harm to life and consumer's health.

Also, if the provision of false information about the product (service) to the consumer was caused by a technical malfunction in the computer program or on the website (website page) on the Internet owned by the owner of the aggregator, the latter is responsible in accordance with Article 10 of the Law of the Russian Federation No. 2300-1, except in cases when the consumer I was notified in advance about the technical failure.