The Trade Department under the Ministry of Commerce (“MoC”) is in the process of formulating the E-Commerce Operation Guidelines (“Guidelines”) which are set to be issued later this year. A draft version of the Guidelines has been circulated among stakeholders to seek their comments. The main objectives of the Guidelines are to promote the sustainable development of e-commerce activities and adequately safeguard the rights and interests of consumers. These Guidelines will apply to all transactions conducted within Myanmar. The key features of the Guidelines (still at the draft stage) are discussed below:
E-Commerce Operations and Related Sub-categories
Pursuant to the Guidelines, e-commerce activities includes the sale and purchase of goods and services using computer networks. Transactions conducted through social media platforms and online marketplaces will eventually be governed by these Guidelines. The Guidelines recognize the following e-commerce operation categories:
- Platform Operators: An entity which can manages a cyberspace or a virtual place is eligible to conduct independent e-commerce activities.
- E-commerce Operators: Any e-commerce operator selling goods or providing services to consumers via an e-commerce platform run by Platform Operators.
- Other Operators: Any other e-commerce operators selling or rendering their goods or services through their own websites.
Licensing Procedures for E-commerce Activities
Any Myanmar citizen over 18 years’ of age is eligible to apply for a business license to carry out e-commerce operations. Joint ventures with foreign investors are also permitted to apply for licenses. Such operations have to be in line with the provisions of the Myanmar Investment Law 2016.
E-commerce operators holding a business license may voluntarily register themselves with the Trade Department under the MoC. Such license holders may then have the right to avail of certain incentives.
Conditions Applicable to E-Commerce Operators
Entities conducting e-commerce operations must comply with the following key conditions:
- Conduct their activities in accordance with existing laws, rules and instructions;
- Properly deliver goods and services as negotiated and within the prescribed period;
- Request or use customers’ personal information in line with applicable laws;
- Issue e-invoices and vouchers as per Myanmar laws;
- Clearly display the business license on the homepage;
- Notify the relevant ministerial department and the public of any change to the business license;
- Avoid conducting any activities that may infringe applicable intellectual property rights;
- Respect the privacy of consumers regarding email or message advertisements;
- Avoid misleading consumers through deceptive, incorrect or false advertising; and
- Abide by confidentiality rules as periodically announced by the government.
E-Commerce Platform Operators
An e-commerce Platform Operator must immediately initiate investigations if it discovers that restricted products are being advertised and/or sold on its platform. 60 days’ advance notice by way of an announcement on the official website has to be made if an E-commerce Platform Operator terminates its services. If an E-commerce Operator wishes to terminate its e-commerce activities then 30 days’ advance notice must be provided.
E-Commerce Operations and Services
To engage in e-commerce operations, the parties must enter into an electronic contract and such parties must have sufficient capacity to enter into the contract. Payment modes shall be through a licensed payment service provider or an authorized dealer bank. Payments for exports and imports are to be made in accordance with the Foreign Exchange Management Law 2012.
Consumers must, before any payment is made, ensure that they provide correct information, carefully check their orders, confirm any purchases and maintain the record of purchases and payments in full.
If any product delivered to consumers is defective or differs from that being advertised, the purchaser shall have the right to return the product and such purchaser must be given a replacement unit of such a product. In such cases, the seller shall bear the cost of any delivery charges. If a consumer claims a refund instead, a seller must provide this.
Information regarding Disclosures, Transparency, and Registration
E-commerce operators must provide consumers with accurate information about their business. The business name, address, e-mail address and phone number must be provided on the website or advertising material.
The E-commerce operators must provide information about the categories, quality and price of goods or services in order to allow consumers make reasoned decisions. All payment-related information and instructions must be provided to the consumers. Requirements and conditions regarding fund transfers shall be provided in writing.
Special attention should be given to advertising products related to children. While collecting personal information on minors under 16 years’ of age, an additional step should be added to secure the permission of the minor’s parent or legal guardian.
Data Protection, Consumer Education and Dispute Resolution
E-Commerce Operators must respect the privacy of all consumers and abide by existing privacy legislation. Personal data collected from consumers must be used for e-commerce purposes only. Consumers must be informed as to how the information would be collected and processed. Personal data, bank information and purchase records are to be kept confidential unless disclosure thereof is requested under applicable laws, by a court order or by an authorized person.
E-commerce Operators have a responsibility to educate consumers about laws related to consumer protection and unfair practices etc.
Any injury and damage arising from e-commerce operations shall be governed under the Consumer Protection Law 2019. E-commerce Operators shall appropriately settle consumer disputes without exposing affected consumers to unnecessary expenses. A consumer may seek any assistance from the Consumer Protection Commission to file a complaint against an e-commerce operator. In case of any violations of these Guidelines, actions may be taken under relevant laws and regulations.
Existing Laws and Regulations
When conducting e-commerce operations, the following laws and procedures will apply:
- The Consumer Protection Law 2018 to resolve challenges encountered by online shoppers;
- The Telecommunications Law 2013 concerning confidential personal information;
- The Electronic Transaction Law 2014 to authenticate electronic records and signatures;
- The Trademark Law 2019 to protect the rights of registered marks;
- Competition Law 2015 to prevent unfair competition;
- The Myanmar Companies Law 2017 to register businesses and to carry out other related legal affairs;
- The Export and Import Law 2012 to undertake license registration;
- The Contract Act 1872 to undertake registration matters;
- The Law Protecting the Privacy and Security of Citizens 2017 to protect the rights to privacy of citizens;
- The Code of Criminal Procedure 1898 as amended in 2016 to take legal action against criminal acts;
- The Mobile Financial Services Regulations 2016 and the Financial Institutions Law 2016;
- The Customs Law; and
- The Burma Post Office Act 1898.
The information provided here is for information purposes only, and is not intended to constitute legal advice. Legal advice should be obtained from qualified legal counsel for all specific situations.
Authors
Partner, Deputy Managing Director & Head of Banking and Finance Practice, Myanmar
Junior Legal Adviser, Myanmar
Contact
Partner & Managing Director, Myanmar/Singapore
