Regulating Cross Border Services

In today’s globalised world, where markets are increasingly borderless, how does the domestic regulator enforce national objectives in consumer protection, professional standards, taxes and competition? Let’s be honest, it’s not easy to enforce these objectives within the border, imagine across borders, where the language and legal systems are different and, most importantly, there is no own state power of the jurisdiction setting up requirements. Cross-border product enforcement has matured in recent years in line with consumer demand for quality and stricter enforcement through customs and sometimes even postal services. Requirements for cross-border services, however, have been more difficult to enforce due to the variety of channels that services consumers and businesses currently use, particularly digital services. This howtoregulate article focuses on how the regulation of cross-border services could be better enforced so that compliance with service requirements by traders outside of the jurisdiction are similar, or at least not too dissimilar, to those within the regulator’s jurisdiction.

A. Ensuring compliance in general

1. How does the regulator ensure compliance with state service requirements when the service is completed outside of the stateʼs jurisdiction? The regulator might reflect on the empowerments necessary to ensure the good application of the law outside of its jurisdiction. Two howtoregulate articles looked at a generic typology for empowerments and the second contained an empowerment checklist, the empowerments from these articles will be adapted to the specific needs of cross-border services (see also the table at the end of this article). Furthermore, we take as a basis the survey results of the Organisation for Economic Developmentʼs (OECD) report on Consumer Protection Enforcement in a Global Digital Marketplace (OECD report), which highlighted that lack of resources and lack of legal power (including empowerments) were limitations to cross-border cooperation1. This article addresses such limitations by checking if authorities have the range of empowerments to enforce service standards outside its border and to consider flexible human resource arrangements that could be helpful when extra staff are required during enforcement operations for example.

I. Empowerment to cooperate with relevant cross-border authorities

2. It might be obvious to say this, but in wanting to enforce compliance with state service requirement the enforcement authority would benefit from an empowerment to cooperate with other relevant authorities outside of its jurisdiction in both directions. In so doing, the following specific empowerments may be considered:

  • Permitting own officers to take part in state operations of another state, particularly useful where the operation occurs in another jurisdiction, where there is a language difference eg. US and Mexican border;
  • Permitting foreign officers to take part in own state operations on the territory of another state, in agreement with the latter state;
  • Empowering foreign authorities to investigate cases on one’s own behalf on the territory of the other jurisdiction, see Sections 155A and 155B, Part XII, Volume 1 of Australia´s Competition and Consumer Act 2010 in relation to its neighbour New Zealand;
  • Requesting foreign authorities to enforce on one’s own behalf on the territory of the other jurisdiction;
  • Permitting staff exchanges: the US Federal Trade Commission (FTC) has staff exchanges with its Canadian and Mexican counterparts via Section 9 of the US Safe Web Act.
  • Disclosing confidential information to authorities of other jurisdictions, for example Australiaʼs Competition and Consumer Act 2010 allows disclosure of confidential information to a foreign government body where it concerns “consumer goods, or product related services, associated with death or serious injury or illness”2;
  • Establishing joint expert committees and data exchange needed for that purpose;
  • Investigating or enforcing on the territory of the other jurisdiction, see Sections 155A and 155B, Part XII, Volume 1 of Australiaʼs Competition and Consumer Act 2010 in relation to its neighbour New Zealand;
  • Enforcing on request of the foreign authority;
  • Empowering foreign authorities to investigate cases on their own behalf on one’s own territory;
  • Requesting foreign authorities to enforce on their own behalf on one’s own territory;
  • Recognising foreign certificates or approvals;
  • Extension of domestic investigation empowerments to cases committed outside the applicability of domestic law, but subject to the law of another jurisdiction where there is mutual assistance between the two jurisdictions (based on formal agreements or practical arrangements).
  • Mutual legal assistance in general, including for court procedures, see Sections 106 onwards of the Ugandan Anti Money Laundering Act 2013; and
  • Extradition of offenders for offences committed in other jurisdictions;
  • No immunity from jurisdiction in relation to certain foreign laws, good example between neighbours of Australia and New Zealand, see Section 46, Division 2, Part IV, Volume 1 of Australia´s Competition and Consumer Act 2010 in relation to its neighbour New Zealand; and
  • Transfer of witnesses in custody for court procedures in other jurisdictions.

II. Exchange of data, particularly confidential data

3. As business and private behaviours become more and more international, jurisdictions can no longer afford not to cooperate with other jurisdictions. Authorities are sometimes hindered from cooperating with authorities of other jurisdictions due to confidentiality rules or rules on data protection. In some jurisdictions, the transfer of data regarding a natural or legal person as such requires a legal basis, regardless of rules on confidentiality and of rules on data protection. Accordingly, regulation should contain precise empowerments for exchanging data with authorities in other jurisdictions. These empowerments can be subject to the respect for rules of confidentiality and for data protection rules by the other jurisdictions. When verifying the rules of other jurisdictions, special care should be applied to the question of whether rules on public access to documents (freedom of information) or other transparency rules, do not counter confidentiality or data protection in other jurisdictions. Whilst the exchange of information is the most relevant issue of international administrative cooperation, it is to be noted that international administrative cooperation can go further.

4. Law often needs to contain provisions on confidentiality. The provisions can oblige traders, professionals, authorities and conformity assessment bodies and their agents. Such provisions usually need to be adapted to the specific sector – general rules on data protection hardly match sector specific rules, but can be referred to as a baseline. For example New Zealandʼs Privacy (Cross-Border Information) Amendment Bill amended the Privacy Act of 1993 to facilitate cooperation in privacy complaints handling with overseas privacy enforcement authorities. The UN Model Legislation on Money Laundering is another example, containing provisions about disclosure of information (section 92), inapplicability of confidentiality provisions (section 24) and duty to keep confidential information obtained in scope of duties (section 39).

5. The OECD Multilateral Convention on Mutual Administrative Assistance in Tax Matters contains agreements between the parties about forms of assistance each state signatory will provide to the other signatories, including:

  • exchange of information (Section I)
  • assistance and recovery of taxes (Section II)
  • service of documents (Section III); and
  • other forms of assistance requested (Chapter IV).

Article 22 concerns secrecy and provides that:

1. Any information obtained by a Party under this Convention shall be treated as secret and protected in the same manner as information obtained under domestic law of the Party and, to the extent needed to ensure the necessary level of protection of personal data, in accordance with the safeguards which may be specified by the supplying Party as required under its domestic law.

6. As highlighted in the OECD report at paragraph 1, 28 respondents (OECD member and non-member countries) cited lack of legal power to be a barrier to cross-border cooperation due to issues related to privacy and information confidentiality. As mentioned above at paragraph 2, the enforcement authority could be empowered to establish joint expert committees to review data exchanges to ensure that privacy and confidentiality can be protected. Issues around confidentiality and privacy can be easily overcome with agreements about how such information would be protected for example.

III. Intra-organisation empowerments

7. State consumer trade authorities run operations to target certain industries or types of traders (see US Federal Trade Commission operation Tele-PHONEY focusing on telemarketing services that involved 30 international, federal, state and local law enforcement authorities). Empowerments that facilitate the seamless movement of domestic officers (and associated financial resources) between federal, state and local enforcement authorities, including conferring relevant arrest powers, enables swift action, while minimising administrative burden. This can in part address the resource constraints of consumer trade authorities cited in the OECD report (see paragraph 1). This can be important in the area of foreign litigation, see section 5 of US Safe Web Act. The US FTC and the US Department of Justice´s Office of Foreign Litigation have an agreement that enables an FTC attorney to work in the Office of Foreign Litigation3. This facilitates the compelling of evidence in foreign courts to assist the development of FTC cases in domestic proceedings.

IV. International agreements and memoranda of understanding (MOU)

8. Domestic investigation empowerments for cases outside the applicability of domestic law, be it cross-jurisdictional or intra-jurisdictional, would usually require mutual assistance between the two jurisdictions in the form of an agreement or practical arrangement such as an MOU. An example of an empowerment for cross-jurisdiction purposes is section 38 of the Ugandan Anti Money Laundering Act 2013, which empowers the authority to disclose the information to governments of foreign states, that has powers and duties similar to the authority and sets some limits around the information to be shared. And section 39 of the same Act provides that a contract or agreement may be negotiated by the authority to specify the nature of and limit to the information the authority may collect, evidently to protect privacy, confidentiality and other human rights norms that may differ from one jurisdiction to the next. An example of an intra-jurisdictional agreement is that cited above between the US FTC and the US Department of Justice´s Office of Foreign Litigation

9. Most jurisdictions would require an agreement or MOU to enable cooperation, including exchange of data, with international organisations. Such agreements may need to consider how empowerments to cooperation, including exchange of data, could be facilitated, particularly as officers of international organisations usually do not have conferred powers. Issues concerning consumer services involve a range of international organisations such as the International Consumer Protection and Enforcement Network (ICPEN), which is an organisation composed of consumer protection authorities from over 60 countries, the OECD and the UN Commission for Trade and Development (UNCTA). Evidently, the listed international organisations handle their own confidential information so agreements around confidentiality would usually not be controversial. For example the ICPEN has an MOU on the Establishment and Operation of the ICPEN, which contains empowerments about exchange of information between members that is mutually beneficial. The MOU does not outline the treatment of confidential information or private information because ICPEN is a facilitator, putting states in contact with each other and it is on this basis that any confidential information would be shared for example.

V. Services provided from zones with limited state control and from dysfunctional states

10. Services provided from zones outside of any state-control and dysfunctional states raise a wide range of specific issues. For example it might be difficult to find in these zones or states a counterpart to talk to or cooperate with to tackle issues. Or perhaps there are authorities to cooperate with (like in the well-functioning “Somaliland”) but are not recognised and not even recognisable under international public law. The most likely scenario in these types of zones is that the entities do not necessarily have any interest in introducing requirements similar to the ones introduced by states, and even less so where they have an interest in applying requirements of states. Although this problem arises infrequently for most states, and a more serious problem for states bordering zones with limited state control such as Somalia or Libya and also many other states with de facto dysfunctional authorities, it is worthwhile a brief mention about how jurisdictions could approach this phenomenon. Two measures could be useful, neither of which a panacea:

  • Exerting pressure on financial service providers so that they do not transfer money to or from these non-state entities or dysfunctional states which are commonly used for circumventing legal requirements.
  • In extremely criminal cases, banning financial transactions with operators in non-state entities and dysfunctional states in order to oblige the operators to establish a place of business in a zone with regular state control. Of course, this is only efficient if many jurisdictions make this step together.

B. Ex ante control

1. Verifying products is somewhat easier than services in the sense that a physical object can be inspected. However with services, short of being present during the time that the service is completed, it is more complicated to verify if the service meets requirements. When regulating for services, particularly with an eye on service requirements outside of the jurisdiction, effective ex ante controls are critical. Ex ante controls, such as obliging professional qualifications of employees or accreditation of service operators before services commence, can be done more easily within the jurisdiction but becomes progressively difficult across other states in a federal system and foreign states. Ex ante controls should aim to educate and inform consumers such that they do not purchase services from rogue traders or unqualified service providers. Traders should be incentivised to meet service requirements because of savvy consumers and effective ex ante controls.

I. Information

2. Information is an ex ante control in the sense that its aim is to make known to the target population regulations that apply to their services and customers. If an authority creates an administrative incentive, it must ensure that its target population comes to know about the incentive. So an empowerment to disseminate information to the media is important. In jurisdictions that require regulated media to provide “air time” for community announcements, disseminating information about service requirements is easier (and cheaper). Where a jurisdiction has an arrangement with a neighbouring jurisdiction, the same information could be aired in that jurisdiction´s media also. Information campaigns for the general public or specific target groups, can be useful, for example in hospitals and general health practitioners clinics, information about consumer rights around alternative medicine, particularly the kinds of health claims such services may make.

3. Swedenʼs Hallå konsument consumer information service, coordinated by the Swedish Consumer Agency, is a good example of how an ex ante control through information works. In addition to its phone lines, it has live chat and both communication methods state the expected wait time. The tips for different purchases, particularly services, is extensive and the page for cross-border online shopping contains useful information about consumer rights both within the EU zone, in the US and outside.

4. Another enforcement channel for information, is requiring traders to inform clients on rights and risks of cross-border services and on the obligations to be respected by the foreign traders. The UK National Health Service (Cross-Border Healthcare) Regulations 2013 requires national contact points in England and Wales to ensure that information about each of the following is available to or accessible by visiting patients— (a) healthcare providers; (b) patients’ rights; (c) complaints procedures and methods of seeking remedies; and (d) legal and administrative options available to settle disputes, including in the event of harm arising from the provision of healthcare4.

5. State travel sites that advise citizens of diplomatic services, do not travel zones or embassy contacts when abroad could also encourage citizens to report any service infringements to the respective national consumer trade authority (possible even providing a list) and to abstain from problematic traders by providing a portal for citizens to report.

II. Professional societies

6. Regulation of cross-border services may involve a range of regulatory bodies other than the responsible domestic consumer trade protection authority, and can often be service specific, such as professional societies. For example legal services, medical services, engineering services are regulated by professional societies empowered to regulate the professional standards to be observed such as entry requirements, continuous education and issue licences to practice. Most jurisdictions worldwide regulate legal services provided by foreign lawyers. In the example of Australia, it enforces strict regulations requiring foreign lawyers to register with the particular legal professional body and meet the requirements of a legal practicing certificate (a licence to be renewed annually)5. Like lawyers, medical practitioners are also strictly regulated, particularly those trained outside of the jurisdiction.

7. Regulation concerning professional societies should also contain empowerments for cooperation with their cross-border counterparts, including information, registration, accreditation, recognition of qualifications. An example of two neighboring jurisdictions aiming to recognise each others regulatory standards of occupations (relevant to compliance with service requirements) is the Trans-Tasman Mutual Recognition Act 1997 (New Zealand) and the Trans-Tasman Mutual Recognition Act 1997 (Australia). Of interest for cross-border services requirements, is that disciplinary action taken against a personʼs registration in an occupation in New Zealand is taken to have had the same effect to the equivalent registration in Australia6. Other useful empowerments in the the Trans-Tasman laws includes:

  • facilitating direct information exchange between the registration authorities, including confidential information7;
  • obliging the treatment of received information to be treated confidential or private8; and
  • a broad empowerment for registration authorities of Australia and New Zealand to “impose conditions in such a way as to promote the Trans-Tasman recognition principle”9.

8. Some professional societies offer vetting services for draft advertisements to ensure that they comply with advertising regulations. For example the Law Society of Ireland offers a vetting service for draft legal advertisements for solicitor advertising to ensure compliance with the Solicitors (Advertising) Regulations 2002. As law services in particular diversify and are marketed beyond borders the vetting of advertisements, particularly for free, facilitates compliance that meets service requirements.

9. Outside of pre-existing professional societies such as in law and medicine, the regulator could consider the creation of a professional society to monitor and enforce standards, where one does not exist or to give additional powers to existing informal professional societies. Evidently, the decision to create a new professional society is a measure taken in response to a serious consumer trend or problem that affects health and wellbeing.

III. Pre-market Accreditation

10. Given the risks to health and wellbeing, particularly economic loss, of certain services it may be desirable to require traders to be accredited, particularly those operators that direct their marketing in particular jurisdictions. This happens already to some degree informally through professional societies. For example a doctor that seeks advice from another doctor outside of their own jurisdiction, because they are a specialist or pre-eminent in their field of medicine, probably does not ask to see that doctorʼs medical practising licence. Why? Because the medical professional network worldwide is generally recognised to be trusted. However, many services do not have the benefit of a trusted professional society and this is where pre-market accreditation can be useful.

11. A small but growing problem in the services industry concerns consumers who go outside their home jurisdiction for medical or cosmetic services (tattoos) usually because it is cheaper and the attraction of combining a holiday with the service, known as medical tourism. Medical tourism was defined as “travel across international borders with the intention of receiving some form of medical treatment. This treatment may span the full range of medical services, but most commonly includes dental care, cosmetic surgery, elective surgery and fertility treatment”10 in an OECD commissioned report. Noting that medical practitioners are strictly regulated, little can be done by the medical professional society in the case where a patient goes abroad to seek medical treatment. This is where accreditation can be useful.

12. The Joint Commission International is a health accreditation body where medical facilities can undergo accreditation and patients can find accredited medical services around the world. Consumer protection regulators could encourage and educate consumers about the benefits of seeking an overseas medical service that has been accredited for example. Australia´s Smarttraveller system encourages medical tourists to take out insurance and warns of the risks, and that the national healthcare system (Medicare) will not cover related costs. Separately, Australia has also negotiated health care agreements to cover the cost of essential medical treatment for Australians travelling in some countries and includes reciprocal treatment for citizens of those countries in Australia. The US Centre for Disease Control and Prevention page on medical tourism encourages citizens to know the risks (and lists them) and check the qualifications of the health care providers through accreditation groups such as Joint Commission International, DNV GL International Accredited Hospitals and the International Society for Quality in Healthcare.

13. An example of a pre-market accreditation system is one managed by Ecommerce Europe an association made up of 20 national e-commerce associations and represents more than 75,000 companies (via a paid membership system) selling goods and services online to consumers in Europe. Members are accredited based on their adherence to the Code of Conduct, and this accreditation is routinely checked for compliance. Consumers can trust that the online companies with the trustmark. The Code of Conduct basically works by making all contract terms clear and transparent, information on the consumerʼs rights and obligations, including the right of withdrawal and the regulatory enforced link to the European Online Dispute Resolution platform. This ex ante control ensures that the consumer, before hitting the pay button, is aware of their rights and obligations. This accreditation system was an industry initiative and consumer trade authorities in each EU Member State could investigate empowering this industry initiative so that all online service providers must become members and earn the trustmark.

C. Ex post control

I. Obliging reporting of information

1. Information can also be an ex poste control where it concerns disclosure of possible unfair or deceptive acts or practices. For example the US Safe Web Act exempts at section 8 certain specified entities from liability for disclosing to the FTC information that may help to reveal unlawful conduct, entities include:

  • financial institutions;
  • consumer complaints entities;
  • courier services;
  • industry membership organisations;
  • payment system provider;
  • domain name registrar; and
  • internet service provider or telephone service provider.

Given that several national health systems advocate for its citizens to take out special health insurance for treatment abroad, an empowerment obliging insurance companies to report the number of claims it has paid out arising from complications of the treatment, the country where treatment was given and the treatment centre involved. This would enable consumer trade authorities to monitor the issue to determine if further regulatory action is required.

II. Enforcement of cross-border advertising and information

2. Traders offering services across a number of jurisdictions rely on advertising and marketing its services through a variety of media channels such as print, radio, television and internet. Once the public authority has become aware of a harmful service or other improper conduct by a trader in another jurisdiction, an empowerment to disrupt these channels could be a useful enforcement measure to prevent further harm as well as important public service message about the harm caused by the service. Empowerments to disrupt advertising and marketing channels could include:

  • Empowerment to request from a foreign Internet or telecommunication service provider blocking of certain content or to place a warning announcement when the site is loaded that warns customers of non-compliance of the trader, for example the volume of complaints received from previous clients;
  • Empowerment to request from a foreign jurisdiction application of any empowerments it may have to block certain internet content or to place a warning announcement when the site is loaded that warns customers of non-compliance of the trader;
  • Empowerment to request from a foreign jurisdiction assistance in issuing notices of non-compliance and set an appropriate deadline for rectification of the situation;
  • Empowerment to request from a foreign jurisdiction assistance with information dissemination to media, with or without data concerning natural or legal persons;
  • Empowerment to request from a foreign jurisdiction to block information which endorses illegal activities in the requesting jurisdiction; and
  • Empowerment to request from a foreign jurisdiction assistance with informing the clients of non-compliant traders of their rights, particularly useful where the clients of the resquesting jurisdiction represent a smaller market that the foreign jurisdiction where the trader resides;

3. Another related enforcement channel could focus on online price comparison services, which claim to be independent and offer price comparison between products, requiring such traders to disclose business model for ranking the products or require a definition of how it is independent. Claims of independence is a form of advertising and attracts clients who want a quick comparison service. The Australian Competition and Consumer Commission recently instituted proceedings in the Federal Court against hotel price comparison website Trivago, where rankings of prices were allegedly based on highest cost per click it would receive from advertisers and not the actual best deal. By requiring price comparison traders to reveal their independence in relation to the products they compare could provide more information to the client about whether or not to trust the prices on the website.

III. Online services platforms and other portals as third party conformity bodies

4. As more consumers and businesses search online for competitive prices how does the regulator ensure that the consumer is protected in the same way as if that service was performed in the home jurisdiction? Several online services platforms exist that connect buyers and sellers of services such as Freelancer (30.8 million registered users) or Upwork (over 5 million business users)11. Such platforms contain their own consumer protection terms of service, mostly regulated internally through holding payments in escrow until satisfaction of service has been fulfilled. Where disagreements arise these are usually managed through internal dispute resolution processes12. Depending on the number of consumer complaints in a jurisdiction about the services received through online services platforms or a general check about fairness of terms of services, the regulator could consider incentives for online service platforms to act as third party conformity bodies. For example trust in the service provided is based on reputation from previous clients who have used the service, but perhaps the online service platform could create verification process for professional education eg. verification of a diploma or degree or membership of a relevant professional society.

IV. Cross-border redress

5. Obliging traders to inform their clients of their alternative dispute resolution (ADR) rights where the client has a dispute concerning failure of service requirements or misleading service description is an enforcement tool that could be leveraged between states within an economic zone. For example the European Union Directive 2013/11/EU covers procedures for out-of-court resolution of both domestic and cross-border transactions, where a consumer submits a complaint against a trader. It imposes specific information obligations on traders who use, or are obliged to use, ADR – and certain information obligations on all traders when attempts to resolve a consumer dispute fail. Online traders are also now required to provide information on a recently-introduced Online Dispute Resolution platform, such as a link on the website or clickable banners. States that rely on tourism often require tourist traders to have a poster clearly displayed for tourists to make complaints where the service has not met the description and have a dedicated tourist police to investigate complaints (eg. Thailand).

V. Empowerment to freeze payment of services

6. Once a trader becomes known to the consumer trade authority and repeatedly ignores warnings to conform to service requirements, an empowerment to freeze all domestic payments to that trader temporarily may be the measure that enforces conformity. Freezing domestic payments to that trader may be easier to implement in the first instance because the regulator would be seeking freeze orders within its jurisdiction. Freezing all domestic payments to the trader is effective where the jurisdiction concerned represents a sizeable market for the trader. In the event that freezing domestic payments to the trader is unlikely to be effective, an empowerment requesting to freeze payments within the foreign jurisdiction the trader resides could be more effective. Empowerment to freeze property and seeking property freeze orders is commonly used in laws concerning money laundering, terrorist financing and proceeds of crime. In the UN Model Legislation on Money Laundering Sections 81 and 82 concern applications to the court for property freezing orders, which must be in writing and supported by an affidavit outlining the grounds on which the property should be frozen.

Useful links:

Competition & Consumer Protection Authorities Worldwide https://www.ftc.gov/policy/international/competition-consumer-protection-authorities-worldwide

Reporting international scams online

https://econsumer.gov/#crnt

This article was written by Valerie Thomas, on behalf of the Regulatory Institute, Brussels and Lisbon.

Annex A Empowerments table

Aiming at

Empowerments to strengthen compliance

of cross-border services

Application to

cross-border services

Cross-border cooperation
  • Permitting foreign officers to take part in state operations;
  • Disclosing confidential information to authorities of other jurisdictions;
  • Establishing joint expert committees and data exchange needed for that purpose;
  • Investigating or enforcing on the territory of the other jurisdiction;
  • Empowering foreign authorities to investigate cases on one’s own behalf on the territory of the other jurisdiction;
  • Requesting foreign authorities to enforce on one’s own behalf on the territory of the other jurisdiction;
  • Enforcing on request of the foreign authority;
  • Empowering foreign authorities to investigate cases on their own behalf on one’s own territory;
  • Requesting foreign authorities to enforce on their own behalf on one’s own territory;
  • Recognising foreign certificates or approvals;
  • Extension of domestic investigation empowerments to cases committed outside the applicability of domestic law, but subject to the law of another jurisdiction where there is mutual assistance between the two jurisdictions (based on formal agreements or practical arrangements).
  • Mutual legal assistance in general, including for court procedures, see Sections 106 onwards of the Ugandan Anti Money Laundering Act 2013; and
  • Extradition of offenders for offences committed in other jurisdictions; and
  • Transfer of witnesses in custody for court procedures in other jurisdictions.
Reflecting on the enforcement powers on own jurisidction officers, other jurisdictions also have empowerments that relevant agencies may be able to use based on information provided by the counterpart authority. For example under the UK´s Code of practice for the Proceeds of Crime Act 2012 specified officers have a broad range of empowerments which include compelling financial institutions to provide customer information13.
Enforcement with the help of non-designated third parties
  • Establishing a complaints, alert or whistle-blowing portals or specific communication channels;
  • Communication campaigns aimed at introducing or giving information about the whistle-blowing portals or communication channels; and
  • Communicating with third parties to obtain further evidence and details.
The following jurisdictions have comprehensive web, phone and physical communications for consumer complaints: Australia, UK, US, Portugal, Singapore, Hong Kong, India, Zambia,

The International Consumer Protection and Enforcement Network (ICPEN) has a portal dedicated to cross-border complaints.

Enforcement via regional authorities, geographic entities or designated third parties

We distinguish here between regional authorities and geographic entities, because regional authorities can also be those that belong formally to the federal state though being just responsible for a region.

  • Establishing minimum resource requirements or at least of parameters for determining how many full-time equivalences (FTE) are needed for enforcement at the level of geographic entities or designated third parties.
  • Obliging to undertake certain enforcement activities (in some jurisdictions: to be specified);
  • Obliging to inform about enforcement activities;
  • Obliging to inform about certain critical events, incidents, problems, obstacles;
  • Obliging to participate in certain training or information or coordination events;
  • Obliging to undergo accreditation (by independent accreditation bodies, see IAF);
  • Obliging to participate in peer-review;
  • Delegating investigation tasks (by means of public or private law);
  • Delegating the collection and investigation of complaints;
  • Delegating enforcement tasks (by means of public or private law);
  • Giving regional authorities or geographic entities the right to delegate investigation or enforcement tasks; and
  • Designating the lead regional authority, geographic entity or lead third party in cases where different regional authorities, geographic entities or third parties are involved and coordination is necessary.
In the medical tourism services industry there exist online platforms that provide consumer health services information to those interested in travelling abroad to seek medical health services, including limited forms of accreditation of medical clinics abroad. For example Treatment Abroad is the registered trademark of a company registered in the UK and implements a Code of Practice that aims to drive quality and best practice but does not assess the quality of care or treatment. If Treatment Abroad was determined to be a designated third party it could be obliged to inform about certain events, such as the number of complaints received about health services abroad.
Designation and supervision of public or private organisations entrusted to play a special role in the application of regulation
  • Preselecting potential cooperating organisations in cases of high number of potential candidates;
  • Establishing selection criteria;
  • Selecting members of panels attributing subsidies, functions or other advantages;
  • Taking discretionary decisions regarding the attribution of subsidies, functions or other advantages (which can exclude full legal control); and
  • Taking into account previous assessments of the candidate organisation (by the same authority, by others, by foreign jurisdictions or by third bodies like accreditation bodies).
Using again the medical tourism services industry as an example, the regulator could designate a private organisation such as Treatment International to monitor quality of care and treatment, and eventually to include accreditation based on this standard.
Investigations and data
  • Conducting, or cooperating with persons conducting, research, development, tests, demonstrations and studies and publishing this research or test results;
  • Imposing obligations to cooperate without remuneration with the authority and in particular to permit samples to be taken or provide samples on request, provide information, and to grant access to documentation and premises;
  • Arrest (and financial sanctions) in case these obligations are not fulfilled;
  • Visiting and inspecting offices, factories, warehouses, wholesaling establishments, retailing establishments, laboratories, research institutions and other premises in which products are produced or kept, or where services provided);
  • Entering and inspecting any vehicle used to transport or hold products or to provide services;
  • Investigate alleged violations of laws and regulations
  • Taking samples of the products covered by the regulation in question;
  • Ordering anonymously or via proxy products or services in view of assessing their conformity;
  • Seizing and taking possession of all articles which are in non-conformity, be they placed with the person responsible for the infringement or other persons;
  • Seizing and taking possession of all documents, data and objects which might serve as means of proof for stating the non-conformity;
  • Compelling the attendance of witnesses and the production by third parties of evidence via a subpoena, when there are reasons to believe or first evidence for assuming that any infringement there is;
  • Compelling the production or delivery of data or documents of any kind, including on property or other rights related to objects and rights, issuing document search warrants and further empowerments needed to search and confiscate documents (see the excellent Sections 44 onwards of the Ugandan Anti Money Laundering Act 2013);
  • Therein in particular: empowerment to request data from Internet or telecommunication service provider;
  • Supervising the internet communication or telecommunication (meta-data or even content) in a personalised or generic way;
  • Acquiring data and documents from third parties, including against payment or providing advantages;
  • Processing data;
  • Exchanging data with other authorities, courts, natural or legal persons or other jurisdictions and adopting agreements in this regard; and
  • Personal supervision of persons / monitoring orders (see as example Sections 56 onwards of the Ugandan Anti Money Laundering Act 2013).
The enforcement authority needs sufficient information with which to forward to the other jurisdiction when formally requesting assistance, so broad empowerments to investigate and access data domestically is required.

In the medical tourism services industry again, it is generally recommended that special medical tourism insurance be taken out, such insurance companies could be obliged to report on the types of claims it has paid out in relation to treatments that have had complications to determine if enforcement action is required to investigate.

An example of the supervision of internet communication the Australian Taxation Office uses social media platforms like Facebook to monitor for displays of wealth from individuals that did not match up with what they had reported about their income and affairs14. Only publicly available information is used ie. information sourced from a simple Google search so as not to offend privacy rules. In cross-border services monitoring social media platforms is useful because many services are advertised through such platforms and negative review feedback from customers could indicate non-compliance with service requirements.

Information
  • Information dissemination to media, with or without data concerning natural or legal persons;
  • Information campaigns for the general public or specific target groups;
  • Blocking illegal information or information which endorses illegal activities;
  • Informing the clients of non-compliant operators of their rights; and
  • Informing the clients of non-compliant operators of the legal requirements applicable for the service in question, inviting them to verify compliance and to report.
Governments of Australia15 and the UK16 have clear information to consumers about the risks involved in travelling abroad for medical treatment.
Cooperation, including exchange of data with international organisations
  • The empowerments required for international organisations, such as ICPEN, OECD, UNCTAD and the EU, would be different to those provided to foreign officians of counterpart consumer and enforcement agencies because the officials of international organisations would typically not have enforcement powers, so empowerments would need to consider how exchange of data and confidentiality would work. Evidently, the listed international organisations handle their own confidential information so agreements around confidentiality would not be controversial.
The ICPEN has a Memorandum on the Establishment and Operation of the ICPEN, which facilitate exchange of information that is mutually beneficial but does not outline the treatment of confidential information or private information because the organisation puts states in contact with each other and it is on this basis that any confidential information would be shared for example.
Intra-organisational measures
  • (Re-)Assigning of human resources (in case of changing situation);
  • (Re-)Assigning of financial resources (in case of changing situation);
  • Assigning of and cooperation with external experts as advisors;
  • Creating scientific or advisory bodies;
  • Establishing procedures regarding scientific or other advisory bodies;
  • Creating intra-organisational independence (e.g. for scientific or advisory bodies that must have independence to be credible);
  • Intra-organisational reporting obligations;
  • Intra-organisational control mechanisms (e.g. mandatory review by superior instance for difficult or important decisions, periodic control review, right to instruct);
  • Intra-organisational disciplinary procedures; and
  • Whistle-blower protection mechanisms (a universe of its own, see the howtoregulate article “Whistleblowers: protection, incentives and reporting channels as a safeguard to the public interest”).
Flexible human resources are key to the success of sweeps or other operations that are organised where the whole organisation is focussed on searching infringements of consumer protection laws. An example of a sweep is the International Internet Sweep Day organised by ICPEN with its members which is a pro-active enforcement tool to target growth in fraudulent and deceptive conduct emerging on the Internet and other forms of electronic communication. The aim of the International Internet Sweep Day is to build consumer confidence in e-commerce through having a day dedicated to intensive searching to provide a list of suspicious sites for later enforcement action.

1OECD Directorate for Science, Technology and Innovation Committee on Consumer Policy, Consumer Protection Enforcement in a Global Digital Marketplace, 20 April 2018, pp. 32-34, http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DSTI/CP(2017)10/FINAL&docLanguage=En.

2Australian Competition and Consumer Act 2010 (Cth) Schedule 2-The Australian Consumer Law, Chapter 3, Part 3.3-Safety of consumer goods and product related services, Division 5, ss. 131-132A. https://www.legislation.gov.au/Details/C2017C00369/Html/Volume_1#_Toc498505795

3The US Safe Web Act: The First Three Years : A Federal Trade Commission Report to Congress (December 2009), p. 6 https://www.ftc.gov/sites/default/files/documents/reports/u.s.safe-web-act-first-three-years-federal-trade-commission-report-congress/p035303safewebact2009.pdf.

5International Bar Association, The Regulation of International Trade in Legal Services, Australian entry, pp. 24-29, https://www.ibanet.org/PPID/Constituent/Bar_Issues_Commission/BIC_ITILS_Committee/The_Regulation_of_Interational_Legal_Services.aspx.

6Australia´s Trans-Tasman Mutual Recognition Act 1997 (Cth) section 32, Division 5, Part 3, https://www.legislation.gov.au/Details/C2015C00470.

7Ibid. Section 37.

8Ibid. Section 38.

9Ibid. Section 39

10Neil Lunt et al, commissioned by OECD Directorate for Employment, Labour and Social Affairs, Medical Tourism: Treatments, Markets and Health System Implications: A scoping review, http://www.oecd.org/els/health-systems/48723982.pdf.

11Muhammed, A., “79 websites to get freelance jobs fast”, Forbes Online, 16 June 2017, https://www.forbes.com/sites/abdullahimuhammed/2017/06/16/79-websites-to-get-freelance-jobs-fast/#77288e1e1688.

12Example of Freelancer´s Milestone Dispute Resolution Policy, accessed online 16 November 2018, https://www.freelancer.com/page.php?p=info%2Fdispute_policy.

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