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Saudi Electronic University Homework Help

Law 402 Law electronic of Commerce

Description

Include your discussion question in the form below, as well as the answer to the question and the answer source.

What is the nature of copyright?

Davidson, A. (2009). The law of electronic commerce (1^st ed.). Port Melbourne, Vic.: Cambridge University Press. ISBN-13: 978-0521678650
Alghamdi, A. (2011). The law of e-commerce: e-contracts, e-business. AuthorHouseUK. ISBN-13: 978-1467886031
Add more references and write above 100 words

The Law of Electronic Commerce & The
Rule of Cyberspace
LAW 402: LAW OF E-COMMERCE

UPON COMPLETION OF THIS WEEK’S
ASSIGNMENTS, YOU WILL BE ABLE TO:
•Identify common issues related to e-commerce law.
•Discuss the application of traditional legal rules to
the e-commerce marketplace.
•Summarize Internet law and its application to ecommerce transactions.

ADVANTAGES OF ELECTRONIC
COMMERCE
•EASE OF ACCESS
•ANNONYMOUS ELECTRONIC BROWSING OF PRODUCTS
•LARGER CHOICES
•CONVENIENCE OF SHOPPING FROM A COMPUTER

ELECTRONIC COMMERCE AND THE
APPLICATION OF STANDARD LAW
ELECTRONIC COMMERCE LAW IS USED TO DESCRIBE ALL OF THE CHANGES AND ADDITIONS TO
THE LAW THAT ARE A DIRECT RESULT OF THE ELECTRONIC AGE
• Traditional Law (Contract Law, Consumer Law and Commercial Law) apply to:
• The Internet
• Email Communications
• Electronic Banking
• Cyberspace in general

TRADITIONAL LAWS PROVED INADEQUATE IN THE
FOLLOWING AREAS AND NECESSATED
LEGISLATIONS:
• Computer-related crime
• Credit card and bankcard fraud
• Computer forgery
• Computer sabotage
• Unauthorized access to computer systems
• Unauthorized copy/distribution of computer programs
• Cyberstalking
• Theft of intellectual property and Identity theft.

•The courts have had to reconsider the applicability of local laws
to a website with global reach although it was intended for
another jurisdiction.
•Examples of issues where laws vary internationally yet single
websites are typically available globally:
• Child pornography
• Terrorism
• Suicide materials
• Spyware
• Censorship

ELECTRONIC
TRANSACTIONS ACT
The Questions: What is electronic writing, and an electronic signature? How
does the law apply?
• Evidentiary issues: relate to digitizing paper documents and printing out
electronic documents.
• Intellectual property issues: relate to the Internet and intellectual property
in terms of peer-to-peer ﬁle sharing (music and videos are the most
common aspect of this issue), management of digital rights, and time and
format shifting.
The Answer: Electronic Transactions Act- an international act resulting from the
range of issues related to electronic contracting.

CYBERLAW
The Problem: Electronic commerce does not recognize
borders and it raises questions regarding security of
transactions, standards and protection, legally and
otherwise, in an international context.
The Result: Cyberlaw- the law of electronic commerce.

JUDICIAL CONSIDERATION IN
AUSTRALIA
As they have recognized the enormity of the impact of the Internet, courts all
over the world have been forced to reconsider basic principles of law.
1. Dow Jones Vs Gutnick 13 (2002 ): court considered defamation on the World
Wide Web and whether it was appropriate for the Supreme Court of Victoria
to exercise jurisdiction over a US-based website.
• First opportunity where the court considered its role in law making and the
common law in context to cyberspace and e-commerce.
• The common law is the rock and the foundation of modern English and
colonial law (including Australia’s law) yet it has remained ﬂexible to
adapt to modern developments.

THE LAW RELATING TO E-COMMERCE,
THE INTERNET AND CYBERSPACE
• Requires careful management by legislators and structured
application and development of existing legal principles by the
courts.

CULTURAL AND ENVIRONMENTAL JUXTAPOSITION
WITH CYBERSPACE
• Cyberspace, like human interaction, tends toward order and has an aversion to
•Cyberspace has a spontaneous order that has evolved protocols through public
participation
•No on controls Cyberspace
•Cyberspace has many users and stakeholders, each with their own agenda,
impact and influence
•Size, direction, and use of cyberspace have challenged forecasters.
•Cyberspace has gained structure and presence by spontaneous order.

THE RULE OF LAW AND THE RULE OF
CYBERSPACE
•Rule of Law: basic precept of legal systems. I
•Rule of Cyberspace: is not and cannot be based on the rule of law.
Parallels exist between the development of the rule of law and the emergence
and adoption of the rule cyberspace.
• Order and regulation merge from varied, unplanned and unexpected parties.
• The rule of cyberspace emerges in response to its own inherent forces.
• Understanding of the rule of law allows the cyber user to appreciate the rule
of cyberspace.

THE RULE OF LAW
Purpose: orders that all people come before the law equally and ensures fairness to all
• British common law tradition- Albert Venn Dicey- Law of the Constitution (1895): rule of law
ensures the “absolute supremacy or predominance of regular law as opposed to the inﬂuence of
arbitrary power.”
• Three ‘kindred conceptions’ underpinning the English constitution :
1. No man could be punished or lawfully interfered with by the authorities except for
breaches of law.
2. No man is above the law and everyone is subject to ordinary law of the land
3. There is no need for a bill of rights because the general principles of the constitution
determine the rights of the private person.

SPONTANEOUS (OR ENDOGENOUS) ORDER
Definition: a natural mechanism, operating without any
speciﬁc intent or design: given an environment with rules,
multiple behaviors and structures, a coherent order
emerges.
• Cyberspace structure, organization and continuation can be
explained by such spontaneous order.
• operates on multiple levels: social, commercial,
domestic, educational and for entertainment.

LESSIG’S FOUR FACTORS
Lessig: The law of cyberspace is actually a “code of
cyberspace.”
Four factors regulate real space and cyberspace:
1. Law
2. Norms
3. Markets
4. Code

E-COMMERCE & CONTRACT LAW
LAW 402: LAW OF E-COMMERCE

UPON COMPLETION OF THIS WEEK’S
ASSIGNMENTS, YOU WILL BE ABLE TO:
•Articulate issues impacting contract formation
electronically.
•Discuss the contract formation principles of “offer and
acceptance” and “communications.”
•Discuss the issues of incorporating terms and agreements.
•Compare and contrast the Uniform Electronic Transactions
Act and the UCITA.

ELECTRONIC CONTRACTS
• Formality of contract does not change because an electronic
medium is used.
•A contract which can be entered into orally can be entered into by
use of email and other
forms of electronic communication.
•Electronic Transactions Acts affect key elements of
contracts(example: timing and place of communications, records,
documents, and basic constructs of offer and acceptance.

FORMATION OF CONTRACT
•Offer and acceptance:
• Offer must be specific, complete, capable of acceptance and made with the intention of being bound
• Acceptance is the expression of assent to an offer that is made and corresponds with the exact terms
of the offer with no variations
•Communication of offer and acceptance over the internet:
• Acceptance can only be concluded contracted where it has been unequivocally communicated to the
offer
• Time of electronic communication acceptance: the contract is formed when the acceptance is
received.
•Cross offers: when emails cross paths with two separate offers, and no further communication takes place,
the cross offers are not an acceptance of each other; theoretically, the requirements of an offer and
acceptance are not satisfied.

INCORPORATING TERMS AND
CONDITIONS
Terms of a contract: expressly agreed between the
contracting parties and those implied by law.
• A party is not bound to a term unless it has been brought
to notice before concluding the contract.
A seller or a website owner MUST incorporate terms and
conditions into the contract on the Internet and the buyer
has to read through and agree to the terms before placing
the order.

THE BATTLE OF FORMS
Arises when a party (buyer) places an order by means of a
standard form that includes terms and conditions that the
party wants incorporated into the contract. The seller uses
another standard form that includes the terms and
conditions that he/she wishes to incorporate. As a result the
terms and conditions on the two forms are incompatible.

ELECTRONIC AGENT
Purpose: Preprogrammed computer programs established to find
information, make contracts and interact with computers of other
parties without the need for human interaction.
• An electronic offer and acceptance can be done automatically
Electronic agents operate transactions formed by electronic
messages when the messages of one or both of the parties will not
be reviewed by an individual as a step of contract formation.

CHOICE OF LAW
•The location of contract is an important matter when making
electronic transactions.
•When two parties of different jurisdictions enter into an electronic
contract, they should know which law applies in case of dispute.
• Electronic contracts contain choice-of-law clause and the
location of the clause should be made clear

UNCITRAL MODEL LAW ON
ELECTRONIC
COMMERCE
Purpose: developed to provide national legislatures with a template
of internationally acceptable rules in order to remove legal obstacles
and create a secure legal environment for electronic commerce.
Intent: to facilitate the use of electronic communication and storage
of information.
Provides: standard ways to assess the legal value of electronic
messages and legal rules for electronic commerce in speciﬁc areas.
**Does not specifically refer to contract law.

THE ELECTRONIC TRANSACTIONS ACT (1999)
•All Australian states and territories have enacted parallel
legislation.
•Purpose: to achieve the Commonwealth’s goal of national
uniform legislation in order to remove legal impairments
facing electronic transactions.

NEW ZEALAND ELECTRONIC
TRANSACTIONS ACT (2002)
Purpose: to ease the use of electronic technology by
reducing uncertainty regarding the legal effect of
information that is in electronic form or
communicated by electronic means.
•Provisions: reference can be made to the UNCITRAL
Model Law and any document that relates to the
Model Law.
•

UNITED STATES UNIFORM ELECTRONIC
TRANSACTIONS ACT (1999)
•Product of the National Conference of Commissioners on Uniform State Laws
•Uses the UNCITRAL Model Law as its model.
•Applies only to transactions between parties who have agreed to conduct
transactions
by electronic means.
•Definition of electronic record provided by the act: “a record
created, generated, sent, communicated, received, or stored by electronic
means.”

UNITED KINGDOM LAND REGISTRATION ACT (2002)
AND THE ELECTRONIC COMMUNICATIONS ACT
(2000)
Land Registration Act: refers to the Electronic
Communications Act 2000
• Purpose: to identify what would qualify as an
electronic signature and what constitutes a
certiﬁcation.

APPLICATION OF THE COMMON LAW
•Common law has recognized electronic communications – by telegraph, radio
and telephone, and more recently by telex and facsimile – for more than a
century.
•The emergence of the internet, EDI has led governments to legislate new rules.
•Several cases show that the common law courts could have managed:
• McGuren v Simpson
• Hume Computers Pty Ltd v Exact International BV
• Wilkens v Iowa Insurance Commissioner

VALIDITY OF ELECTRONIC
TRANSACTIONS
•The Australian Electronic Transactions Acts: a transaction is not invalid because
it took place wholly or partly by means of one or more electronic
communications.
•The New Zealand Electronic Transactions Act 2002 :To avoid doubt, information
is not denied legal effect solely because it is◦ (a) in electronic form or is in an electronic communication;
◦ (b) referred to in an electronic communication that is intended to give rise to
that legal effect.

WRITING PROVISIONS OF THE
ELECTRONIC TRANSACTIONS ACTS
Purpose: to provide functional equivalence of electronic
writing where writing is otherwise required or permitted by
law.
Signatures: A person who under a law is required to give a
signature may, pursuant to and subject to conditions under
the Electronic Transactions Acts, use an alternative method
of identity authentication in relation to the communication
of information electronically.

FOUR REASONS TO PROMPT SIGNATURE
REQUREMENTS PER THE UNITED NATIONS
COMMISSION ON INTERNET TRADE LAW (UNCITRAL)
1. To reduce disputes
2. To make the parties aware of consequence of the deal
3. To provide evidence for third parties to rely upon
4. To facilitate tax, accounting and regulatory purposes

PRODUCTION OF DOCUMENTS
•A person who is required by law to produce a document
that is in the form of paper may instead produce the
document in an electronic form.
•Both Model Law and the Australian legislation has the
underlying assumption that original documents are paper
based; the provisions deal with an electronic equivalent.

CONSENT
Definition (Commonwealth Parliament): an additional
precondition for functional equivalence of electronic
writing, electronic signatures and electronic production.
• The person to whom the electronic writing or signature
is required must consent to that requirement being
met electronically.

Shrinkwrap, Clickwrap and
Browsewrap Contracts &
Electronic Signatures
LAW 402: LAW OF E-COMMERCE

UPON COMPLETION OF THIS WEEK’S
ASSIGNMENTS, YOU WILL BE ABLE TO:
•Explain the validity and enforceability of clinkwrap, shrinkwrap and
browsewrap contracts.
•Discuss characteristics of the acceptance of license agreements that
are particular to electronic media.
•Summarize the functions of a signature in legal agreements.
•Discuss the issues that are unique to signatures and electronic
agreements.

SHRINKWRAP, CLICKWRAP AND
BROWSEWRAP CONTRACTS
Online contracts are, more likely than not, entered into
without paper and pen, and without spoken word.
As a result, shrinkwrap, clickwrap and browsewrap cases
arise when articles of disagreement occur over terms
incorporated into these types of transactions.

SHRINKWRAP
Shrinkwrap contracts derive their name from the clear plastic wrapping that
encloses goods.
• Include a notice saying that by opening the shrinkwrap, the purchaser
agrees to the terms and conditions enclosed.
• Typically include provisions such as an arbitration clause, a choice of law and
forum clause, disclaimers, limits of warranties and limitations of remedies.
Major Criticism: the consumer will be bound by terms and conditions unknown
at the time the contract is entered into (the time of which the package is
opened).

CLICKWRAP
Clickwrap agreements include terms and conditions in an online
contract formed on the internet.
• the user assents to a list of terms by clicking an onscreen button
marked, ‘I Agree’ or ‘I accept’.
• Advantage: user can read the terms and conditions before
assenting and the vendor can dictate the number of steps for the
user to pass through before reaching the assent stage.

ENFORCEABILITY OF CLINKWRAP
AGREEMENTS
•Note: unless expressing consent is extended to include clicking on a
computer screen, uncertainty can exist as a barrier that prevents
stability
•Once a customer clicks “I Accept” it can likely satisfy the
requirement of showing acceptance and therefore it is acceptable in
most cases as long as all of the contract details are supplied to the
customer before clicking on “I Accept”

BROWSEWRAP
Browsewrap agreement refers to the situation where a user enters
into an agreement without giving explicit consent to the terms and
conditions.
Example: a vendor of software to be downloaded may gives the user an
opportunity to browse the terms but has not made access to the product
conditional on reading the available terms and conditions. Vender instead places
a link to the “terms of download” on the download page and leaves the viewing
of the documents optional.

SECURITY OF ELECTRONIC
SIGNATURE
Purpose: used to sign any electronic document or
record, with the same intention and for the same
purpose as a traditional signature on a paper record
or document.

SECURITY OF ELECTRONIC SIGNATURE
•Digitized signatures: handwritten signature that is scanned into a computer and
then placed electronically into an electronic document.
•Digital signatures: a subset of the electronic signature attached to speciﬁc data,
such as an email, computer ﬁle or web page.
•Standard encryption requires private encryption meaning that the sender and
the recipient of a message know and use the same secret code.
•The level of security available for an electronic signature is regarded as
impossible to duplicate.

SECURE SOCKET LAYER – TRANSPORT
LAYER SECURITY
Technology Purpose (SSL): to ensure that information stored in
electronic form or transmitted over networks is not accessible to any
person not authorized to view that information.
Transport Layer Security (TLS): is a security protocol ensuring privacy
between communicating applications and their users on the internet.
TLS ensures that a third party cannot interfere with or read a
message.

SSL AND TSL
•SSL and TLS both use a form of digital signature technology.
•SSL and TLS provide endpoint authentication and communications privacy using
cryptography.
•SSL and TLS protocols exchange records.
• records can be compressed, encrypted and packed with a message
authentication code.
• users to securely provide personal details to sites employing the
protocol.
•Client and server negotiate a ‘master secret’.
• key data is calculated from the ‘master secret’

APPLICATIONS
•SSL and TLS commonly found with hypertext
transfer protocol (HTTP/HTTPS)
•HTTPS is used to secure World Wide Web pages
for applications
•Uses public key certificates to verify and
identify endpoints

AUTHENTICATING ELECTRONIC
MESSAGES
•Messages and records must be authenticated for use as evidence
•Determining who signed a document is crucial for fixing liability
•Lack of prior identification raises legal and commercial issues when it comes to
verification
•Alteration or forgery of computer records is even harder to detect
•Most common form of authentication is a manual signature
•Passwords are common for authentication of electronic messages

UPON COMPLETION OF THIS WEEK’S
ASSIGNMENTS, YOU WILL BE ABLE TO:
•Articulate areas of intellectual property rights protection.
•Discuss cultural differences regarding intellectual property.
•Analyze the Digital Millennium Copyright Act and discuss how it
affects e-Marketing.
•Determine whether a given instance of copying constitutes “fair
use.”
•Identify and explain the major problem areas related to trademark
use on the Internet.

THE NATURE OF COPYRIGHT
Intellectual property includes state-sanctioned rights
entitling the holder to a limited monopoly on controlling the
property for a predetermined period of time.

BENEFITS
State gained benefits:
• literary and musical works
• new inventions
• medicines
• research
• designs
• innovation.
•Inventors, writers, composers and designers have incentive for potential rewards for their
efforts.
• works, patents and designs form part of the public domain once the predetermined
period expires.

EXCLUSIVE RIGHTS
Copyright Act: copyright is the exclusive right in the case of a
literary, dramatic or musical work, to do all or any of the following:
• to reproduce the work in a material form;
• to publish the work;
• to perform the work in public;
• to communicate the work to the public;
• to make an adaptation of the work;
• to do, in relation to a work that is an adaptation of the ﬁrst-mentioned work,
• any of the acts speciﬁed in relation to the ﬁrst mentioned work in subparagraphs

INFRINGEMENT
Infringement may be direct or indirect.
• Direct infringement: a person exercises an exclusive right of the
copyright owner without permission.
• Examples: downloading of music from the internet, for
example, involves direct copying.
• Indirect infringement: the importing of infringing articles, selling
or conducting other trade dealings with infringing articles and
permitting a place of public entertainment to be used for a public
performance of a work.

EVIDENCE OF INFRINGEMENT
•Infringement occurs when a substantial part of
the work is copied.
•Must have proof of a sufﬁcient degree of
similarity between the work and the copy in
addition to a causal connection between two
works.

SOFTWARE
Over the last twenty five years the courts and the
legislature have dealt with many cases of software
copyright issues:
•the High Court of Australia held that the
Copyright Act did not apply to software.
•The High Court was unable to classify computer
code as a literary work, or any other type of work

RESULT
Copyright Act expanded ‘literary works’ to include
computer programs and defined them as:
• a set of statements or instructions to be used
directly or indirectly in a computer in order to
bring about a certain result

RIGHT OF COMMUNICATION
Purpose: exclusive right for the copyright holder in literary,
musical, artistic and dramatic works, sound recordings, ﬁlms
and broadcasts
Definition of “Communication: make available online or
electronically
Right includes: cable transmission and encompasses the
uploading of material onto a server

EXEMPTIONS
•Libraries and archives
•Educational stator license
•Temporary reproductions
•Time-shifting, formatting and space-shifting

PIRACY AND ENFORCEMENT
•Peer to peer file sharing
•Hyperlinking

Trade Mark
“a sign used, or intended to be used, to distinguish goods or services
dealt with or provided in the course of trade by a person from goods
or services so dealt with or provided by any other person”
• Indicate a standard of quality associated with a service
• protect consumers from confusion and deception.
• protected under common law and under the Trade Marks Act
1995

INFRINGEMENT
Occurs where a sign with respect to goods or services is
identical with, or deceptively similar to, the sign of the trade
mark.

PATENTS
Purpose: provides protection for inventions and are
granted to protect any “novel and non-obvious
technological development.”
•Businesses are likely to choose patent protection as weapon in
protecting intellectual capital on the internet.
•Recent amendments to Patent Act of 1990 include protection for
business process and other technology.

CIRCUIT LAYOUT RIGHTS
Circuit Layout: two-dimensional representation
of a three-dimensional integrated circuit
•Integrated circuits and circuit layouts:
protected under the Circuit Layouts Act
1989

CIRCUIT LAYOUTS ACT 1989
• Act protects original circuit layouts made by an Australian
citizen or an Australian corporation, or ﬁrst commercially
exploited in Australia
• grants the owner of an original circuit layout rights to
copy the layout, directly or indirectly, in a material form,
to make an integrated circuit in accordance with the
layout

Domain Names and
Domain Name Disputes
LAW 402: LAW OF E-COMMERCE

UPON COMPLETION OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
•Explain the value associated with domain name ownership.
•Explain how to avoid a domain name conflict that could result in a
trademark infringement lawsuit against a company.
•Critique cases in which a domain name infringes trademark rights.
•Analyze the interface between domain names and trademarks.
•Explain the various legal approaches taken to address domain name
and trademark issues.

MAPPING CYBERSPACE
•Information in cyberspace is so large it cannot
be properly cataloged.
•It is growing and changing continuously
•Domain names allow possibilities for
cataloguing, indexing and searching.

DOMAIN NAMES
•Laws and regulations surrounding domain names and their use are
as new as the internet.
•Domain name conﬂicts and rights cannot be satisfactorily
categorized with other legal precepts.
•Some domain names are bought and sold as property.
•Some people regard domain names as a new form of intellectual
property while others view them as having the characteristics of
license rights.

BUSINESS IDENTIFIERS
•ICANN and domain administrators’ ‘ﬁrst come ﬁrst served’
approach has proven unfair/inappropriate in many
circumstances.
• Jurisdictions have enacted rules in relation to registering
business names and company names with regard to the
duplication of a domain name since it is impossible to have
more than one businessname.com.

THE NATURE OF DOMAIN NAMES
•Internet pages have a unique address called a
Uniform Resource Locator (URL)
•Protocols exist for various parts of each URL.
•Each URL can have a number of parts
•example, the protocol, login, host, port, path,
query, ﬁle, anchor/fragment.

TOP LEVEL DOMAIN NAMES (TLDS)
Two types of top-level domains
• Generic (gTLD): created to be used by the internet
public
•country code(ccTLD): created to be used by
individual countries.
Special top-level domain: (.arpa) used for internet
infrastructure.

TLD RATIONALE
•There are no technical reasons why an open domain name cannot
be the full company, personal or business name, including spaces.
• ‘www’ remains an anachronism
•Permitting domain names of any composition and length could
reduce the numbers of conﬂicts of names
• National domain name administrators follow the protocol requiring
.com, .org, .edu in addition to the country code.

ICANN
Purpose: “the international private/public non-proﬁt corporation responsible
for managing and coordinating the domain name system (DNS), the Internet
Protocol (IP) address space allocation, protocol identiﬁer assignment, generic
top level domain names (gTLDs), country code top level domain name (ccTLD)
systems and root server system management”

ICANN ROLE
Role: ensures each IP address and domain
name is unique and that internet users are
able to locate all addresses.
•maintains each domain name map.

ICANN OBJECTIVES
•To preserve the operational stability of the internet
• To promote competition
•To achieve broad representation of global internet communities
•To develop policy appropriate to its mission through bottom-up,
consensus-based processes.
Mission: technical coordination.

INTERNIC
InterNIC provides four services:
•Creation of the Whois registry: provides contact details for all
domain names registered
using TLDs.
• Registrar contact details in an Accredited Registrar Directory.
•Users can ﬁle a complaint using an online Registrar Problem Report
Form.
•Allows the Whois data to be monitored.

NEXUS REQUIREMENTS
Before registering a domain name some national domain administrators require
a nexus with the jurisdiction with the type of domain used.
•gTLD nexus requirements: the applicant must complete a declaration that there
is no infringement of another’s rights in respect of the domain name.
•.au nexus requirements: allocated on a ﬁrst come, ﬁrst served basis and ﬁxed at
two years.
• Renewal is automatic as long as there is compliance with the nexus
(eligibility) and allocation rules

DOMAIN NAME DISPUTES
• Uniqueness of each domain name leads to the potential for

conﬂicts. Conflicts can be accidental or intentional.

•Cyberpiracy/Cybersuatting/Typosqquatting: parties
deliberately register names to hijack businesses, extort
money from or disrupt the operations.

TYPOSQUATTING
• Variation of cybersquatting but retains the bad faith
•Registration of domain names which are spelling variations
of existing sites that are high trafﬁc.
•Site often directs browsers to sites offering adult
entertainment, gambling or
Recursive advertising.

DOMAIN NAME PASSING OFF
Involves: assuming a reputation that belongs to another and, accordingly,
misrepresentation of goods, services, or goodwill.
Lord Diplock deﬁnition:
“A misrepresentation, made by a trader in the course of trade, to prospective
customers of his or customers or ultimate consumers of goods or services
supplied by him, which is calculated to injure the business or goodwill of
another trader (in the sense that this is a reasonably foreseeable consequence)
and which causes actual damage to a business or goodwill of the trader by
whom the action is brought or (in a quiatimet action) will probably do so.”

FRAUD
Definition: when it is shown that a false representation has been
made:
• knowingly,
• without belief in its truth
• recklessly careless whether it be true or not
•Includes: equitable fraud-embraces conduct which falls below the
standard demanded in equity

DISPUTE RESOLUTION
Remedies using the court process: majority
of situations standard legal principles can
resolve the issues because domain names
are now considered property and equally
treated as such.

UNIFORM DOMAIN NAME DISPUTES
AND RESOLUTION POLICY
LAW402: LAW OF E-COMMERCE

AFTER COMPLETION OF THIS WEEK’S
ASSIGNMENTS, YOU WILL BE ABLE TO:
•Define WIPO and the process associated with report filing and
submission.
•Define UDRP and identify the UDRP process and its legal advantages.
•Identify the bases for resolution of conflicting claims.
•Summarize the role of domain names and cybersquatting in relation
to trademark disputes in cyberspace.

ICANN issued its Uniform Dispute
Resolution Policy (UDRP) 1999
Uniform Dispute Resolution Policy (UDRP): an alternative to legal proceedings
before courts.
• international standard for resolving domain name disputes
Complaint Requirements:
•demonstrate that the disputed domain name is identical (or confusingly similar)
•registrant does not have a right or legitimate interest in the domain name
•registrant has registered and used the domain name in bad faith.

DOMAIN NAME DISPUTES
• Domain name disputes must: be resolved by agreement, court action, or
arbitration before a registrar will cancel, suspend, or transfer a domain name.
•UDRP has been adopted by all ICANN-accredited registrars in
gTLDs.aero,.biz,.cat,.com,.coop,.info,.jobs,.mobi,.museum,.name,.net,.org, .pro,
.tel and .travel.
•It does not extend to any domain name ending with a country code-these are
separately administered.
•A large number of domain name administrators have issued their own Dispute
Resolution Policies that largely reproduce the ICANN policy.

FIRST COME, FIRST SERVED PRINCIPLE
Most domain name registration authorities have recognized
the “first come, first served” principle. Meaning whoever
was first to register a domain name was granted exclusive
rights to it.
• The rule is easy to understand and the first to register a
name is easily identifiable.
• By one measure it is the fairest way to determine
ownership.

CYBERSQUATTER ABUSE
•Some companies were slow to register their domain name which
proved problematic when applying the “first come, first served” rule.
•Cybersquatters recognized the potential value of desirable domain
names and took advantage of the “first come, first served” nature of
domain name registration.
•Preemptively registered domain names they did not really intend to
use with the intent to sell the domain names at a profit to those
companies who had been slow to react.

WIPO INTERNET DOMAIN NAME
REPORTS
World Intellectual Property Organization (WIPO) : a forum for the development
and implementation of intellectual property policies internationally
Purpose: promotes the protection, distribution and use of intellectual property
throughout the world for economic, cultural and social development.
Founded: 183 member state treaty
Process: 17 consultation meetings in 15 cities and written submissions from 334
governments, intergovernmental organizations, professional associations,
corporation and individuals.

WIPO INVESTIGATION
Included: detailed review of the Administrative Procedure Concerning Abusive
Domain Name Registrations.
Final Report Recommendation: ICANN adopt a dispute resolution policy with a
uniform procedure for domain name disputes in all gTLDs.
Procedure: intended to be quick, efﬁcient, cost-effective and a large extent
conducted on-line
Remedies: limited to orders for the cancellation or transfer of domain name
registrations and the allocation of the costs of the procedure against the losing
party.

UDRP RULES
Purpose: to create global uniformity, reduce the costs for resolving
domain name disputes/ enable the laws of nation states to continue
in operation.
•Adopted by ICANN accredited registrars in all gTLDs
•Dispute proceedings may be initiated by parties claiming trade mark
or service mark rights.

APPLYING FOR ICANN OPEN
DOMAIN NAME
Registrant must:
• represent and warrant that the statements made in the application are
complete and accurate.
• declare that the domain name will not be used for an unlawful purpose and
that the domain name will not Knowingly be in violation of any applicable
laws or regulations.
•Registrant does not have to make a determination about whether the applicant
may be in breach.
•Registrars often rely on turnover of domain names for income- restricting
registration would be an additional cost and against their own interests

MANDATORY ADMINISTRATIVE PROCEEDING
WHEN A THIRD PARTY MAKES A COMPLAINT
Applicable Provider states that:
•Domain name is identical or confusingly similar to a trademark or
service
mark in which the complainant has rights
•Have no rights or legitimate interests in respect of the domain name
•Domain name has been registered and is being used in bad faith.

IDENTICAL OR CONFUSINGLY SIMILAR
•Meant to be separate concepts
•Confusing similarity is limited to a comparison between the
domain name identiﬁer and the mark alone.
•Common law trademark rights are usually conﬁned to the
jurisdiction where the mark is used.

REGISTRANT HAS NO RIGHTS OR
LEGITIMATE INTERESTS
•Complainant must show that the registrant has no rights or legitimate interests
in the domain name.
•The assertion in and of itself does not constitute proof-panel is
free to make reasonable inferences.
•There are speciﬁc circumstances to help the registrant demonstrate legitimate
rights
or legitimate interests in the domain name.
•Circumstances are inclusive and beneficial when considering the issue.

REGISTRATION AND USE IN BAD FAITH
•UDRP rules provide an explanation of ‘Registration and Use in Bad Faith’
•Circumstances include how to deal with cybersquatting and the attempted extortion
from trade mark and service mark owners.

UDRP PROCESS
• There are no appeals.
• Decisions are typically made in a timely manner-average time to
resolve disputes 37–45
days.
•NAF permits additional written submissions within ﬁve calendar
days of the respondent’s response.72

RULES FOR UDRP
•Stipulate that a respondent has 20 days to ﬁle a response.
•Critics argue this is not sufﬁcient time to:
• consider a course of action,
• obtain expert opinion
• research precedents and procedures
• draw up and ﬁle a response
Result: approximately half of the number of total applications go unanswered
leading to a considerable amount of abuse by registrants

PRACTICAL RAMIFICATIONS
•Aggrieved party may choose a dispute resolution
process available from the domain name
administrators or pursue legal proceedings before a
court.
•Actions are not mutually exclusive, a party may fail in
one action but succeed in the other.
•The decision of which process is best for the
situation is up to the aggrieved party.

Jurisdiction and Defamation in
Cyberspace
LAW 402: LAW OF E-COMMERCE

UPON COMPLETION OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
•Describe the issues of choice of law and jurisdiction in
relation to contracts formed over the Internet.
•Critique the limited nature of regulated jurisdiction and the
legality of its control over the unlimited nature of Internet
communications.
•Explain the necessity of applicable jurisdiction rules for
Internet transactions.

JURISDICTION
Legal term for a court’s limitation on determining a dispute.
Issue: The Internet is not owned by anyone but it is regulated by
several.
Internet activities can have consequences, so how is the
jurisdiction determined?

JURISDICTION IN CYBERSPACE
Choice of Law: determining which set of laws apply to
a dispute between parties conducting business across
borders.
• Laws vary from country to country and sometimes
even between regions within a single country.
•Parties may choose to delineate which set of laws
will be in effect as a term of their agreement.

RULES OF PRIVATE INTERNATIONAL
LAW
•In a contract, parties can identify the law which applies to the
contract and identify which country’s courts have jurisdiction to hear
the dispute arising from the contract.
•Parties may include an “express choice of law clause”

WHAT IF THERE IS NO “CHOICE OF
LAW” CLAUSE?
•When there is no choice of law clause, courts attempt to
ﬁnd an implication of choice from the language in the
document.
•When there is not an implication, the contract will be
governed by the law of the jurisdiction most closely
connected.

DETERMINING THE MOST CLOSELY
CONNECTED JURISDICTION
•depends upon the subject matter, nationality or
residence of the parties, the place of performance
and other factors.
•After the proper law is determined, the rules of that
system are applied to the contract.

FORUM NON CONVENIENS
Issue: choice of forum- which court to hear an action.
• Each nation state determines its own laws and procedures- lex
fori- or the law of the forum.
• Each nation’s court system has to determine when and how it
should accept jurisdiction
• It takes into account factors: residence and nationality of the
parties, place or places of business, and the subject matter

DEFAMATION IN CYBERSPACE
Issue: A common view that the Internet is a place for
exercising “freedom of speech” has led far too many
individuals to believe that anything on the Internet should
be immune censorship. Yet, courts have disagreed with this
view, especially when it comes to defamation.

DEFAMATION IN CYBERSPACE
The Problem: there is not a universal deﬁnition of
defamation and there is not a set of elements that
define defamation for judiciary concerns.

UN International Covenant on Civil and
Political Rights (ICCPR)
Purpose: provides for freedom of expression
and the right to hold opinions.
•Balances the rights and freedoms with a
respect of “unlawful interference, privacy and
the protection of honor and reputation.”

DEFAMATION REFORM
Purpose: to systematize the legislative answer
to the case law across all state and territory
jurisdictions

ELECTRONIC PUBLICATION
DEFAMATION ACTIONS
Increases the scope of defamation actions because it
can:
•Create an additional mode of communication
•Make online publication of material, even that
intended to be private, further reaching
•Affect the amount of damage due to the broader
reach of material

LEGESLATIVE CONSIDERATIONS OF
DEFIMATION:
•Statute of limitations
•Single Publication Rule
•Single Controversy Principle
•Single Cause Rule

ONLINE DEFIMATION LAWS
•Still in early days of development and interpretation
•General principles have emerged
Concluding Consensus: When it comes to mitigating risk, it
is wise for forum providers not to provide editorial control. It
is also wise for the providers to advertise this aspect widely.

EMPLOYER ADVISEMENT
Preventative Measures: ensure that there are systems in
place to prevent employees from putting the ﬁrm at risk.
Include staff training, an Internet Code of Conduct, and
guiding principles on the responsibilities and expectations
of every employee who is exposed to the internet.

Privacy and Data Protection
in Cyberspace
LAW 402: LAW OF E-COMMERCE

UPON COMPLETION OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
•Identify and explain several ways antitrust laws
have been applied to online activities.
•Describe laws that protect privacy in
cyberspace.
•Interpret and summarize common security
issues that arise in an e-commerce transaction.

PRIVACY
•Privacy means different things to different individuals and in
different contexts.
•Its importance varies from individual to individual, community to
community, organization to organization and government to
government.
•Technology combined with social, economic and political factors has
raised concerns for those concerned with government, enterprise
and personal freedom.

INFORMATION FREEDOM
•Freedom of expression and communication of ideas has
been deemed a universal human right.
•The right to privacy and the conﬁdentiality of
communications in addition to protection of honor must
also be protected.
•Electronic communication and storage of data have greatly
impacted these rights.

DIGITAL DATA STORAGE
•Gone are the days of paper data storage and
consideration of practicality issues regarding the
amount of room needed to store data.
•Digital Age: data can be stored in operating systems.
•Ease of storage allows public and private bodies to
collect and store a larger amount of data (and
personal information) than ever before.

TWO TYPES OF PRIVACY:
1. Information privacy: refers to the ways in which information is
gathered, recorded, accessed and released.
• The multitude of recording and storage options has become
a serious issue for regulation and control
2. Personal privacy: refers to privacy of the person
• Can be invaded by those seeking to photograph, ﬁlm and
record in public and private places

ELECTRONIC RECORDING AND PRIVACY
REGULATION
•OECD guidelines noted that the increase in international data
transmission has made it necessary to address privacy in relation to
personal data.
• require that personal information cannot be collected unless the
person concerned consents or is informed of why it is being
collected, who will use it, and in what way it will be used.

DATA PROTECTION
Australian Telecommunications Act 1997 prohibits carriers,
carriage service providers and others of disclosing
information obtained as a result of normal business
activities yet requires carriers to have wiretapping
capabilities in place for ‘lawful’ surveillance.

PRIVACY ABUSE
An increase in the amount of data collected and
stored also leads to an increase in mistakes.
•There have been numerous incidents where privacy
has been invaded and wrongful information made
public at the expense of the individual’s integrity. To
name a few incidents resulting from privacy abuse,
it has caused wrongful lawsuits, loss of
employment, false allegations against reputation.

COOKIES
A process where information from personal computers is
sent to the hosts of websites visited.
• a small text ﬁle placed on the user’s hard drive, often
without the user’s knowledge, acting like an
identification card but cannot be executed as code or
transmit viruses.

WEB BUGS
Objects embedded in web pages or email used to
monitor use.
•Provide the IP address of the computer that
procured the web bug, the URL of the web page
with the web bug, the URL of the web bug image
and the date the web bug was viewed in addition
to the type and version of the browser and any
cookie information related to the website where
the bug was located.

As cyberspace grows at a
prodigious rate, so does the
potential for privacy abuse.

Minimization of future privacy abuse entails
monitoring changes occurring in national and
international legal environments.

REGULATIONS IN CYBERSPACE
Should progress in a way that includes national
governance with respect to fundamental human
rights. They should also respect human diversity
with respect to global values.

Electronic Mail and
Online Presence
LAW 402: LAW OF E-COMMERCE

UPON COMLETIONS OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
• Identify and explain common concerns with using email
for business transactions.
• Compare the myths to the reality of contracting computer
viruses via email and attachments.
• Explain the key components used to evaluate mail as
authentic evidence for an electronic business transaction.

EMAIL AND ELECTRONIC
COMMUNICATION
Replacing the traditional forms of communication. As a
result, electronic communicators must be aware of laws
that affect their actions and the admissibility of the emails
and attachments sent, in addition to ensuring to validate
documents.

EMAIL
•One of the internet’s most popular applications
•No two email address are the same
• SMTP (Simple Mail Transfer Protocol) is the standard
used for electronic transfer of mail -activated when
the email is sent

ATTACHMENTS
•Can be printed and printout used as an original document
•Email acts as the courier as an envelope would for
traditional paper mail.
•The sender should make a statement regarding the intent of
the attachment in the email.

IMPORTANT EMAIL ASPECTS NOT TO BE
OVERLOOKED IN A BUSINESS TRANSACTION
•Language
•Disclaimers
•Potential for viruses
• Confidentiality
•Defamation
•Copyright
•Negligent misstatements
•Accidental contract formation
•Sexual and racial discrimination

TIME AND PLACE OF DISPATCH AND
RECEIPT
•Time of receipt is when the electronic communication
enters the information system.
•Dispatch occurs when it enters that information system and
at the place where the sender has its place of business.
•Place of receipt is where the recipient of the email has its
place of business or the place where business is conducted
on the end of the recipient.

LIABILITY FOR ONLINE MATERIAL
•Online businesses are liable for material and information that is
misleading and deceptive within the meaning of law.
•Trade Practices Act (1974) and Fair Trading Acts of the states and
territories apply to statements and representations made in web
pages in the same way they apply to hardcopy advertisements and
brochures.

THE PROFESSIONAL OFFICE AND EMAIL
•Each business determines its approach to office
email in the same manner it determines the
approach to postal mail and faxes.
•Ofﬁces must have regimented system for creating
and maintaining backup copies of electronic
communication

OTHER IMPORTANT CONSIDERATIONS
FOR BUSINESSES AND EMAILS
•Supervisory checks
•Record storage and cost
•Confidentiality
•Confirmation of sending
•Access to files

CYBERCRIME
LAW 402:LAW OF E-COMMERCE

UPON COMPLETION OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
• Analyze the legality and ethics of online behavior.
• Identify common types of cybercrime.
• Define cyberstalking, phishing, spam, malicious
damage and unlawful access.
• Describe international approaches to cybercrime.

WHAT IS CYBERCRIME?
Cybercrime involves criminal activities that
take place on the internet.

EXAMPLES OF CYBERCRIME
Cybercrime involves gaining unlawful access to private information or
other acts that involve the use of computers to facilitate the crime.
Examples:
• unlawful access
• malicious damage
• Theft
• Gambling
• pornography/exploitation
• phishing
• identity/financial fraud

JURISDICTIONAL ISSUES OF
CYBERCRIME
Since the internet doesn’t recognize national boarders,
many of the issues related to contracts and other forms of
business communication also relate to cybercrime.
•Responses to the various forms of cybercrime vary from
country to country

THE COMMONWEALTH CRIMINAL
CODE
AND COMPUTER CRIME
•Australia typically deals with cybercrime by federal law.
•Majority of computer crime involves the use of
telecommunication networks.

CYBERCRIME ACT (1995)
Seven computer related offences listed in the Criminal Code include:
•Accessing or modifying computer data
•Impairing electronic communications
•Causing unauthorized modiﬁcation of data
•Causing an unauthorized impairment of electronic communications
• Accessing or modifying data protected by a password or other security features
•Passing a magnet over a credit card or cutting a computer disk in half
•Causing unauthorized impairment of the reliability, security or operation of data

POLICE AND SECURITY POWERS
•Law enforcement has the power to monitor criminals’
emails, SMS messages and voicemail if they are suspect of
cybercrime involvement such as terrorism, fraud or any
other act deemed a criminally offense.
•Through the use of a warrant they are able to obtain any
stored information relating to the offense.

SECURITY RELATED ISSUES
•Encryption and passwords often cause problems for law
enforcement’s ability to obtain criminal information.
•Encrypted data can be nearly impossible to decipher.
•A magistrate can order a person with computer system knowledge
to assist with security barriers.
•The power extends to disclosure of passwords, codes, cryptographic
and steganographic methods.

ASSISTING SUICIDE
•A person who uses the computer to access, distribute, or transmits
materials that directly incite suicide is also guilty of a criminal
offense.
•The person can be found guilty of the offense even if the suicide
doesn’t occur.

STATE LEGISLATIVE OFFENCES
RELATING TO COMPUTERS
There is not a uniform international approach in
place to address computer and electronic
commerce related offenses even though every
country including the states and territories
therein has laws against the misuse of
computers.

INTERNATIONAL CHILD PORNOGRAPHY
CONFERENCE (1999)
•UNICEF Optional Protocol on the Sale OF Children,
Child Prostitution and Child Pornography became
effective in January 2002.
•Recognizes child pornography as a violation of
children and a criminal act that requires legislative
measures to prevent the exploitive use of children in
pornography.

INTERACTIVE GAMBLING ACT (2001)
Prohibits the act of maintaining, using, or
advertising for a website related to interactive
gambling to people in Australia.

CYBERSTALKING
Definition: “continued and intentional conduct directed at
another person that would cause a reasonable
apprehension of violence or detriment to the stalked person
or another person”
Examples: spamming, posting improper messages on
bulletin boards, forwarding viruses, threatening or offensive
email, and electronic theft

Spam
Definition: unsolicited multiple postings of electronic
mail
Problem: slows email systems and is often illegal or
offensive
Spam Act 2003: it is illegal for a person to send a
commercial electronic message unless the recipient
has consented to the message being sent.

IDENTITY FRAUD
Includes obtaining goods or services by deception,
voter registration, terrorism, drug trafficking and
identify fraud using stolen identity to commit
fraudulent acts such as tax evasion, obtaining
government benefits, or other services under
someone else’s identity.

PHISHING
Involves attempts to fraudulently obtain sensitive
information such as passwords, banking and credit
card details by impersonating as a trustworthy person
or business. It causes the victim to undergo financial
loss, loss of email facilities, diminished credit ratings
and other related issues resulting from identity theft.

Evidence of Electronic
Record
LAW 402: LAW OF E-COMMERCE

UPON COMPLETEION OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
• Identify legal issues that may arise because of the use of
electronic means.
• Summarize the law of evidence and its role in e-commerce
transactions.
• Analyze the admissibility of electronic records.
• Explain the hearsay rule and how it applies to electronic
records.

LAW OF EVIDENCE
The law of evidence aims to provide certainty
within the justice system. As a result of this
purpose, it is a critical aspect of the legal
system.

THREE THRESHOLD RULES FOR
EVIDENCE

Evidence must be:

1.Relevant
2.Reliable
3.Best available

TRADITIONAL ASPECTS OF
EVIDENCE
Historically, evidence had to be the
written original and a signature was
often required.

EVIDENCE OF ELECTRONIC
RECORDS
•Electronic records can be used for evidential
consideration, but in some cases courts have rejected
their admission or credibility.
•All parties should maintain records of documents in
the form in which the documents were issued- not
doing so could create a problem of admissibility
should they be deemed necessary in a court decision.

TWO IMPORTANT EXCLUSIONS FOR
CONSIDERATION
1. The exclusion of hearsay is inadmissible because of
its unreliability.
2. The exclusion of secondary evidence if the original
document is available.

EXCLUSIONS TO THE SECONDARY
EVIDENCE RULE
If a required document is in another party’s possession and
that party fails to produce the original document after a
Notice to Produce is issued, a copy of the original may be
admitted as evidence . In the absence of such subpoena for
documents, the original document is the only admissible
document.

Other exceptions: consent, impossibility of original
copy, lost document and certain public records.

LEGISLATION ABOLISHING THE
ORIGINAL DOCUMENT RULE
Under the Evidence Acts of the Commonwealth in Australia
the original document rule has been abolished. This is also
true of South Wales and Tasmania.
Because of the Acts in these jurisdictions, the best evidence
rule no longer exists. A party may now submit a copy of a
document made by a reproduction device. A common
example of this type of document is a transcript of words.

ADMISSIBILITY OF ELECTRONIC
DOCUMENTS
Electronic documents and copies are now permissible
in those jurisdictions, but the weight of the
document as credible evidence is left up to the
courts to determine.

INTERNATIONAL PERSPECTIVE
(UNCITRAL) Model Law of Electronic Commerce (1996):
•Includes provisions for “data message” admissibility and
credibility.
• Data is defined as “information generated, sent, received or
stored by electronic, optical or similar means, including, but not
limited to, electronic data interchange (EDI), electronic mail,
telegram, telex or telecopy”

ORIGINALS AND COPIES: ENVELOPES
AND ATTACHMENTS
Determining which party has the “original copy” in relation to email
causes several difficulties because of:
• Multiple copies of an email are created, copied and stored.
•The recipient has a different document than the original email
created and sent.
•Court failure to recognize the distinction between analogue and
digital data.
In addition, the intent of the sender must be considered.

CONCLUSION
When conducting business over the internet, it
is recommended that:
•All parties retain documents in their issued or presented form.
•All parties should refrain from attempting to change the medium as
the consequence of such action is often undesirable and
unpredictable.

Supplemental Topics in
E-Commerce
LAW 402: LAW OF E-COMMERCE

KEY ASPECTS OF E-COMMERCE
LAW
This week’s presentation provides highlights of some
of the key aspects of e-commerce law. Although this is
a key aspect review, it is not a comprehensive review
of course material. This presentation serves only to
highlight certain components of e-commerce law, not
as an exam review.

MODEL LAW REVIEW
The United Nations Commission on
International Trade Law in 1996 developed the
Model Law on Electronic Commerce. This is a
non-binding document intended to serve as a
template for the development of laws related to
electronic commerce

ESSENTIAL ELEMENTS OF CONTRACT
The essential elements of a contract: an unequivocal
acceptance, consideration, and an intention to create
legal relations.

ELECTRONIC RECORDS
When conducting business over the internet, it is
recommended that:
•All parties retain documents in their issued or
presented form.
•All parties should refrain from attempting to change
the medium as the consequence of such action is
often undesirable and unpredictable.

LEGESLATIVE CONSIDERATIONS OF
DEFIMATION:
•Statute of limitations
•Single Publication Rule
•Single Controversy Principle
•Single Cause Rule

The Law of Electronic Commerce & The
Rule of Cyberspace
LAW 402: LAW OF E -COMMERCE

ADVANTAGES OF ELECTRONIC
COMMERCE
•EASE OF ACCESS
•ANNONYMOUS ELECTRONIC BROWSING OF PRODUCTS
•LARGER CHOICES
•CONVENIENCE OF SHOPPING FROM A COMPUTER

ELECTRONIC COMMERCE AND THE
APPLICATION OF STANDARD LAW
ELECTRONIC COMMERCE LAW IS USED TO DESCRIBE ALL OF THE CHANGES AND ADDITIONS TO
THE LAW THAT ARE A DIRECT RESULT OF THE ELECTRONIC AGE

• Traditional Law (Contract Law, Consumer Law and Commercial Law) apply to:
• The Internet
• Email Communications
• Electronic Banking
• Cyberspace in general

TRADITIONAL LAWS PROVED INADEQUATE IN THE
FOLLOWING AREAS AND NECESSATED LEGISLATIONS:
• Computer-related crime
• Credit card and bankcard fraud
• Computer forgery
• Computer sabotage
• Unauthorized access to computer systems
• Unauthorized copy/distribution of computer programs
• Cyberstalking
• Theft of intellectual property and Identity theft.

CONﬂICT OF LAWS PRINCIPLES IN CYBERSPACE
INADEQUATELY SERVED BY TRADITION
•The courts have had to reconsider the applicability of local laws
to a website with global reach although it was intended for
another jurisdiction.
•Examples of issues where laws vary internationally yet single
websites are typically available globally:
• Child pornography
• Terrorism
• Suicide materials
• Spyware
• Censorship

The Result: Cyberlaw- the law of electronic commerce.

JUDICIAL CONSIDERATION IN AUSTRALIA
As they have recognized the enormity of the impact of the Internet, courts all
over the world have been forced to reconsider basic principles of law.
1. Dow Jones Vs Gutnick 13 (2002 ): court considered defamation on the World
Wide Web and whether it was appropriate for the Supreme Court of Victoria
to exercise jurisdiction over a US-based website.
• First opportunity where the court considered its role in law making and the
common law in context to cyberspace and e-commerce.
• The common law is the rock and the foundation of modern English and
colonial law (including Australia’s law) yet it has remained ﬂexible to
adapt to modern developments.

THE LAW RELATING TO E-COMMERCE,
THE INTERNET AND CYBERSPACE
• Requires careful management by legislators and structured
application and development of existing legal principles by the
courts.

• Cyberspace structure, organization and continuation can be
explained by such spontaneous order.
•operates on multiple levels: social, commercial,
domestic, educational and for entertainment.

LESSIG’S FOUR FACTORS
Lessig: The law of cyberspace is actually a “code of
cyberspace.”
Four factors regulate real space and cyberspace:
1. Law
2. Norms
3. Markets
4. Code

E-COMMERCE & CONTRACT LAW
LAW 402: LAW OF E-COMMERCE

•Discuss the issues of incorporating terms and agreements.
•Compare and contrast the Uniform Electronic Transactions
Act and the UCITA.

INCORPORATING TERMS AND
CONDITIONS
Terms of a contract: expressly agreed between the
contracting parties and those implied by law.
•A party is not bound to a term unless it has been brought
to notice before concluding the contract.
A seller or a website owner MUST incorporate terms and
conditions into the contract on the Internet and the buyer
has to read through and agree to the terms before placing
the order.

Provides: standard ways to assess the legal value of electronic
messages and legal rules for electronic commerce in speciﬁc areas.
**Does not specifically refer to contract law.

•Definition of electronic record provided by the act: “a record
created, generated, sent, communicated, received, or stored by electronic
means.”

UNITED KINGDOM LAND REGISTRATION ACT (2002)
AND THE ELECTRONIC COMMUNICATIONS ACT (2000)
Land Registration Act: refers to the Electronic
Communications Act 2000
• Purpose: to identify what would qualify as an
electronic signature and what constitutes a
certiﬁcation.

FOUR REASONS TO PROMPT SIGNATURE REQUREMENTS
PER THE UNITED NATIONS COMMISSION ON INTERNET
TRADE LAW (UNCITRAL)
1. To reduce disputes

2. To make the parties aware of consequence of the deal
3. To provide evidence for third parties to rely upon
4. To facilitate tax, accounting and regulatory purposes

CONSENT
Definition (Commonwealth Parliament): an additional
precondition for functional equivalence of electronic
writing, electronic signatures and electronic production.

•The person to whom the electronic writing or signature
is required must consent to that requirement being
met electronically.

Shrinkwrap, Clickwrap and
Browsewrap Contracts & Electronic
Signatures
LAW 402: LAW OF E-COMMERCE

FOUR REASONS TO PROMPT SIGNATURE REQUREMENTS
PER THE UNITED NATIONS COMMISSION ON INTERNET
TRADE LAW (UNCITRAL)
1. To reduce disputes

2. To make the parties aware of consequence of the deal
3. To provide evidence for third parties to rely upon
4. To facilitate tax, accounting and regulatory purposes

‘ELECTRONIC SIGNATURE’ DEﬁNED
Any means of electronic authentication of the identity of a
person and of the intent of that person to indicate approval
or to associated with an electronic record.

SECURITY OF ELECTRONIC
SIGNATURE
Purpose: used to sign any electronic document or
record, with the same intention and for the same
purpose as a traditional signature on a paper record
or document.

•Standard encryption requires private encryption meaning that the sender and
the recipient of a message know and use the same secret code.
•The level of security available for an electronic signature is regarded as
impossible to duplicate.

•Most common form of authentication is a manual signature
•Passwords are common for authentication of electronic messages

UPON COMPLETION OF THIS WEEK’S
ASSIGNMENTS, YOU WILL BE ABLE TO:
•Articulate areas of intellectual property rights protection.

•Discuss cultural differences regarding intellectual property.
•Analyze the Digital Millennium Copyright Act and discuss how it
affects e-Marketing.

•Determine whether a given instance of copying constitutes “fair
use.”
•Identify and explain the major problem areas related to trademark
use on the Internet.

THE NATURE OF COPYRIGHT
Intellectual property includes state-sanctioned rights
entitling the holder to a limited monopoly on controlling the
property for a predetermined period of time.

EXEMPTIONS
•Libraries and archives
•Educational stator license
•Temporary reproductions
•Time-shifting, formatting and space-shifting

PIRACY AND ENFORCEMENT
•Peer to peer file sharing
•Hyperlinking

INFRINGEMENT
Occurs where a sign with respect to goods or services is
identical with, or deceptively similar to, the sign of the trade
mark.

CIRCUIT LAYOUT RIGHTS
Circuit Layout: two-dimensional representation
of a three-dimensional integrated circuit
• Integrated circuits and circuit layouts:
protected under the Circuit Layouts Act
1989

CIRCUIT LAYOUTS ACT 1989
•Act protects original circuit layouts made by an Australian
citizen or an Australian corporation, or ﬁrst commercially
exploited in Australia
•grants the owner of an original circuit layout rights to
copy the layout, directly or indirectly, in a material form,
to make an integrated circuit in accordance with the
layout

Domain Names and
Domain Name Disputes
LAW 402: LAW OF E-COMMERCE

UPON COMPLETION OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
•Explain the value associated with domain name ownership.

•Explain how to avoid a domain name conflict that could result in a
trademark infringement lawsuit against a company.
•Critique cases in which a domain name infringes trademark rights.

•Analyze the interface between domain names and trademarks.
•Explain the various legal approaches taken to address domain name
and trademark issues.

ICANN ROLE
Role: ensures each IP address and domain
name is unique and that internet users are
able to locate all addresses.
•maintains each domain name map.

ICANN OBJECTIVES
•To preserve the operational stability of the internet

• To promote competition
•To achieve broad representation of global internet communities
•To develop policy appropriate to its mission through bottom-up,
consensus-based processes.
Mission: technical coordination.

INTERNIC
InterNIC provides four services:

•Creation of the Whois registry: provides contact details for all
domain names registered
using TLDs.

• Registrar contact details in an Accredited Registrar Directory.
•Users can ﬁle a complaint using an online Registrar Problem Report
Form.
•Allows the Whois data to be monitored.

DOMAIN NAME DISPUTES
• Uniqueness of each domain name leads to the potential for

conﬂicts. Conflicts can be accidental or intentional.
•Cyberpiracy/Cybersuatting/Typosqquatting: parties
deliberately register names to hijack businesses, extort
money from or disrupt the operations.

TYPOSQUATTING
• Variation of cybersquatting but retains the bad faith

•Registration of domain names which are spelling variations
of existing sites that are high trafﬁc.
•Site often directs browsers to sites offering adult
entertainment, gambling or
Recursive advertising.

FRAUD
Definition: when it is shown that a false representation has been
made:
• knowingly,
• without belief in its truth

• recklessly careless whether it be true or not
•Includes: equitable fraud-embraces conduct which falls below the
standard demanded in equity

UNIFORM DOMAIN NAME DISPUTES
AND RESOLUTION POLICY
LAW402: LAW OF E-COMMERCE

•Summarize the role of domain names and cybersquatting in relation
to trademark disputes in cyberspace.

•registrant does not have a right or legitimate interest in the domain name
•registrant has registered and used the domain name in bad faith.

FIRST COME, FIRST SERVED PRINCIPLE
Most domain name registration authorities have recognized
the “first come, first served” principle. Meaning whoever
was first to register a domain name was granted exclusive
rights to it.
•The rule is easy to understand and the first to register a
name is easily identifiable.
•By one measure it is the fairest way to determine
ownership.

•Preemptively registered domain names they did not really intend to
use with the intent to sell the domain names at a profit to those
companies who had been slow to react.

Process: 17 consultation meetings in 15 cities and written submissions from 334
governments, intergovernmental organizations, professional associations,
corporation and individuals.

WIPO INVESTIGATION
Included: detailed review of the Administrative Procedure Concerning Abusive
Domain Name Registrations.

Final Report Recommendation: ICANN adopt a dispute resolution policy with a
uniform procedure for domain name disputes in all gTLDs.
Procedure: intended to be quick, efﬁcient, cost-effective and a large extent
conducted on-line
Remedies: limited to orders for the cancellation or transfer of domain name
registrations and the allocation of the costs of the procedure against the losing
party.

•Registrant does not have to make a determination about whether the applicant
may be in breach.
•Registrars often rely on turnover of domain names for income- restricting
registration would be an additional cost and against their own interests

MANDATORY ADMINISTRATIVE PROCEEDING
WHEN A THIRD PARTY MAKES A COMPLAINT
Applicable Provider states that:

•Domain name is identical or confusingly similar to a trademark or
service
mark in which the complainant has rights

•Have no rights or legitimate interests in respect of the domain name
•Domain name has been registered and is being used in bad faith.

IDENTICAL OR CONFUSINGLY SIMILAR
•Meant to be separate concepts

•Confusing similarity is limited to a comparison between the
domain name identiﬁer and the mark alone.
•Common law trademark rights are usually conﬁned to the
jurisdiction where the mark is used.

UDRP PROCESS
• There are no appeals.

• Decisions are typically made in a timely manner-average time to
resolve disputes 37–45
days.

•NAF permits additional written submissions within ﬁve calendar
days of the respondent’s response.72

The Law of Electronic Commerce & The
Rule of Cyberspace
LAW 402: LAW OF E-COMMERCE

ADVANTAGES OF ELECTRONIC
COMMERCE
•EASE OF ACCESS

•ANNONYMOUS ELECTRONIC BROWSING OF PRODUCTS
•LARGER CHOICES
•CONVENIENCE OF SHOPPING FROM A COMPUTER

ELECTRONIC COMMERCE AND THE
APPLICATION OF STANDARD LAW
ELECTR…
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