With the move to hardware plus subscription product models I am left wondering about the protections ACL provides, and reasonably enforce. I have a couple of examples (hypothetical of course - but based on experiences).
I buy a video doorbell. My requirement is that data and video can be stored locally and not in the cloud. I find a product that overtly advertises this feature both in media and on the box. Subsequently it is reported that this is not the case, and some data is stored in the cloud. A work around is offered but significantly reduces the other features of the unit. Can I under ACL return this product for a refund?
I buy a smart TV that similarly advertises that it works with a Smart Assistant that want to use to control the TV. During installation it becomes evident that the Smart Assistant support is only in âcertain Countriesâ - Australia is not one of them. Can I return it?
In both cases I would not have bought the product without these features.
And to extend the second hypothetical - I could set up the assistant which works brilliantly, but the TV OEM withdraws support after 3 months, and updates tv firmware, and its gone. Do I have any rights here? And if so, how long might they persist?
It seems to me that ACL, which has been a great tool that I have utilised, might not provide adequate/intended protections to some of the hard + subscription/software models that are increasing common today. But then it might.
This would fall under false or misleading claims under the ACLâŠ
This will depend on how the product is advertised and materials available at or before purchase. If the product makes claims the assistant works in a country and it doesnât, then dot point 1 applies. If it is a feature which canât be used or disabled in AustraliaâŠif the information is silent or indicates it is the case, then this isnât inconsistent with the Australian Consumer Law.
This scenario exists with TVs and is considered elsewhere in the community. If it is a critical component of the TV, then it could be argued the TV isnât fit for purpose. If the information on the TV indicates the feature will be supported indefinitely, then dot point 1 apples. If it isnât critical, which an assistant is unlikely to be in most cases, then it may not fall foul of the Australian Consumer Law. If one specifically bought the TV based on the assistant, such as having a disability and to use the TV effectively it is required, then its removal would sit under dot point 1.
There is no enforcement under the ACL. The ACL is a toothless tiger and relies on the good graces of businesses to do the right thing.
If a business chooses to ignore the ACL, you are on your own and need to presue them through state based organisations such as Office of Fair Trading/Consumer Affairs (or whatever they are called in your state); your state Civil Appeals Tribunal; or finally by a Small Claims Court.
@phb has covered all bases if you are buying in Australia, but be aware that the ACCC is also a toothless tiger that will not help individuals to gain their rights under the ACL.
If buying from overseas, for example the video doorbell, you have no rights under the ACL. You would have to deal under the country of originâs consumer laws, if they have any.
One thing that the previous respondents have not mentioned: is the missing/lost functionality clearly stated in the product description/advertising? Alternatively, is it something the seller stated the product could do, preferably in writing?
Your rights only apply where you have been informed that something works in a particular manner but this turns out not to be the case. So loss of functionality after three months is probably an easy one to say that you have a right to replacement or refund. With your second scenario, it depends whether the âsmart assistantâ functionality was advertised and/or a sales feature in the Australian market. The video doorbell, if bought in Australia, seems also to be clear-cut but you would have to check the small print.
Thanks for the discussion. I the question I am mulling is in all of examples the hardware works fine. The TV and Doorbell still function. However, the software has been changed in a way that renders the device (software + hardware) such that a feature, that was a reason for selecting that device in the first place, is no longer operable. I think I largely get the basic ACL ârulesâ (bought in Australia, what was advertised, etc) - I am interested in application in the changing product delivery models that rely on hardware + software to function. That is, as a simplistic illustration, if I buy a TV with WIFI and the WIFI module breaks seems clear-cut ACL would apply, but if the OEM disables the WIFI feature via a software update - it is not so clear?
Thanks @phb, although I find the distinction in point 3 unsatisfying. I am not why there is a difference between someone requiring a feature because of a disability, or they want to integrate with a home automation setup, or just simple want to control their TV by voice. I get the significance of the difference in impact on each of the consumers, but donât see how this is a consideration under ACL?
Lets assume the feature was critical for the person with a disability to be able to use the TV.
The person with a disability would have purchased based on this feature so that the product was fit for purpose and usable. Without the feature, the TV would no longer be fit for purpose under the ACL for the person with a disability.
For a person who has bought the TV with the feature and it is not critical to its function as a TV (a desirable feature not critical), this would be a different. The TV is still fit for purpose to the purchaser, just a desirable features arenât operating. It doesnât impact on the use of the TV as a TV.
ACL applies in either case. You bought a product with functionality, that functionality no longer exists. Whether you are entitled to an exchange, refund or other remedy depends on specific circumstances including but not limited to how long you have owned the device. The manufacturer is not required to maintain its products and their software indefinitely, and there is no clear objective rule that can be applied.
As a side note, I would generally not rely upon my TV for any âsmartsâ. The TV maker is selling you a TV with a few extremely cheap âextra optionsâ. Even if the manufacturer has plenty of experience in developing and maintaining software (e.g. Samsung), it may not have any of that expertise working in the TV department. You can pretty much guarantee that all software has bugs, and it is highly likely that as Internet connectivity is not the primary purpose of a TV the product will have more bugs that a device that is very specifically designed for the Internet. Additionally, support for any smart capabilities, including to patch known vulnerabilities, can be patchy or non-existent. Get a well supported plugin module for your TV (Google, Amazon, Hulu etc.), and rely upon that for the smarts.
As an alternate proposition, does the average consumer expect internet connectivity to be delivered out of the box? IE seamless connection to the home network. Hence the ability to reliably and fully utilise that connection for the life of the physical product. Especially if one just spent $5,000 or more on a 4K OLED flatscreen Smart TV.
Why are these products marketed as a âsmartâ TV?
What is the purpose of the digital display + computer with networking interfaces/s + external storage adaptor + âŠâŠ? Iâll suggest the broadcast tuner is a minor and non-essential added feature!
What are the priorities a consumer determines at purchase for the features/specification of the digital display device?
Yes, the average consumer expects this. Should they? Itâs like the stereo system (or nowadays, the âsmart entertainment systemâ) that comes with your car. The manufacturer wants to offer what everyone else offers, but for as low a price as possible. Do you need it? No, the car is drivable without that âentertainment systemâ. You can get it ripped out (of most cars) and replace it with something that is designed to be a good entertainment system not simply âwe can get this for $2/unitâ.
And yes, it turns out motor vehicle computers are just as hackable as smart TVs and in many cases even more difficult to patch.
I would be interested to know how many people have proactively installed a patch on their âsmartâ TV, or in their âsmartâ car. For most of these products, patches are not automatically downloaded and installed - you have to track it down online, copy it to a USB key, and plug it into the correct socket.
