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Saudi Electronic University Homework Help

law of electronic commerce LAW402

Description

ACTION ITEMS

An e-mail is sent to Party B, in order to form a contract. Party A is the sender of the email. Party A’s identification is located at the top of the e-mail and is sufficient to show authentication.

Will use of the individual’s initials or name at the end of the message satisfy the signature requirement, under Article 2B of the Uniform Commercial Code (the UCC)?

References

Davidson, A. (2009). The law of electronic commerce (1st 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

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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

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The Law of Electronic Commerce
Written speciﬁcally for legal practitioners and students, this book examines the
concerns, laws and regulations involved in electronic commerce.
In just a few years, commerce via the World Wide Web and other online
platforms has boomed, and a new ﬁeld of legal theory and practice has emerged.
Legislation has been enacted to keep pace with commercial realities, cybercriminals and unforeseen social consequences, but the ever-evolving nature of
new technologies has challenged the capacity of the courts to respond effectively.
This book addresses the legal issues relating to the introduction and adoption
of various forms of electronic commerce. From intellectual property, to issues of
security and privacy, Alan Davidson looks at the practical challenges for lawyers
and commercial parties while providing a rationale for the underlying legal
theory.
Alan Davidson is Senior Lecturer in the School of Law, University of Queensland.
He is also a solicitor and barrister of the Supreme Court of New South Wales and
the High Court of Australia.

The Law of Electronic
Commerce
Alan Davidson

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
São Paulo, Delhi, Dubai, Tokyo
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521678650
© Alan Davidson 2009
This publication is in copyright. Subject to statutory exception and to the
provision of relevant collective licensing agreements, no reproduction of any part
may take place without the written permission of Cambridge University Press.
First published in print format 2009
ISBN-13

978-0-511-69088-4

eBook (NetLibrary)

ISBN-13

978-0-521-67865-0

Paperback

Cambridge University Press has no responsibility for the persistence or accuracy
of urls for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Reproduction and communication for educational purposes The Australian
Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the
pages of this work, whichever is the greater, to be reproduced and/or
communicated by any educational institution for its educational purposes provided
that the educational institution (or the body that administers it) has given a
remuneration notice to Copyright Agency Limited (CAL) under the Act. For
details of the CAL licence for educational institutions contact:
Copyright Agency Limited
Level 15, 233 Castlereagh Street
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Telephone: (02) 9394 7600
Facsimile: (02) 9394 7601
E-mail: [email protected]
Information regarding prices, travel timetables and other factual information given
in this work are correct at the time of ﬁrst printing but Cambridge University Press
does not guarantee the accuracy of such information thereafter.

Contents

Acknowledgements page xv
Table of cases xvii
Table of statutes xxv
1 The law of electronic commerce 1
Electronic commerce law
Internet use in Australia

2
5

Judicial consideration in Australia
Further reading 10

2 The rule of cyberspace 11
Cultural and environmental juxtaposition with cyberspace
Cyberspace 12
The rule of law and the rule of cyberspace 16
The rule of law 17
The rule of cyberspace

Spontaneous (or endogenous) order
A code of cyberspace 20
Information wants to be free 22
Conclusion 23
Further reading 24

3 Electronic commerce and the law of contract 25
UNCITRAL Model Law of Electronic Commerce 25
Legislation 27
Australia 27
New Zealand 28
Provisions of the Electronic Transactions Acts 29
Electronic contracts 30
Common law 31
Application of the common law 31
Exemptions 33
Exemption does not equate to a paper requirement
New Zealand 34
Validity of electronic transactions 35

CONTENTS

Writing 36
Australian provisions 37
New Zealand 39
Signatures 39
Australian provisions 40
New Zealand provisions 45
Production of documents 47
Consent 48
Example 50
Other countries’ provisions 51
Comment 52

Retention of information and documents

Retention in paper form 53
Retention in electronic form 53

Time and place of dispatch and receipt of electronic
communications 54
Time of dispatch 55
Time of receipt 56
Acceptance by electronic communication and the postal acceptance rule
Place of dispatch and place of receipt 61
Attribution of electronic communication 61
Originals 63
Electronic Case Management System 63
Comment 63
Further reading 64

4 Shrinkwrap, clickwrap and browsewrap contracts 66
Shrinkwrap 67
Clickwrap 68
Browsewrap 70
Electronic agents 72
Further reading 73

5 Electronic signatures 74
Traditional signatures 74
Modern signatures 77
Electronic signing 77
Acceptance at face value and risk 79
Functions of signatures 79
Electronic Transactions Acts 80
‘Electronic signature’ deﬁned 82
Uses 83
Security of electronic signature 83
Digitised signatures 84
Digital signatures 84

CONTENTS

Australian Business Number Digital Signature Certiﬁcates 86
Secure Socket Layer – Transport Layer Security 87
Applications

Further Reading 88

6 Copyright issues in electronic commerce 89
The nature of copyright
Exclusive rights 91
Infringement 92

Substantial part 93
Objective similarity and causal connection
Software 96
Right of communication 97
Exemptions 98
Libraries and archives 98
Educational statutory licences 99
Temporary reproductions 99
Enforcement measures 99

Time-shifting, format-shifting and space-shifting 101
Piracy and enforcement 102
Peer-to-peer ﬁle sharing 102
Authorisation 105
Carrier protection 108
Hyperlinking 108
Further reading 109

7 Electronic commerce – trade marks, patents and circuit layouts 110
The nature of trade marks 110
Infringement 112
Hyperlinking 113
Framing 115
Meta-tags 117
Patents for software and internet processes 119
Developments in the United States
Developments in Europe 120
Developments in Australia 120
Patents and hardware 122
Circuit layout rights 123
Further reading 125

119

8 Domain names 126
Mapping cyberspace 126
Business identiﬁers 127
The nature of domain names 128
Top Level Domains names (TLDs) 129

vii

viii

CONTENTS

Generic Top Level Domain Names (gTLDs) 129
Country Code Top Level Domain names (ccTLDs)

131

.au 131
.nz 132
.us 132
.uk 133
.in 133

TLD rationale
ICANN 135

134

InterNIC 136
Whois 137
ICANN Ombudsman

137

Nexus requirements 138
gTLD nexus requirements 138
.au nexus requirements 139
.nz nexus requirements 140
.us nexus requirements 140
.uk nexus requirements 141
.in nexus requirements 141

9 Domain name disputes 142
Cybersquatting 142
Dispute resolution 143
Remedies using the court process 144
Cause of action 144
US experience 146
International approaches

148

Domain name passing off 151
Oggi Advertising Ltd v McKenzie 152
Marks & Spencer v One in a Million 153
Developments 156
Trade Practices Act relief 157
Fraud 160
Conclusion 162
Further reading 162

10 Uniform domain name dispute resolution policies 163
WIPO internet domain name reports 164
UDRP rules 165
Identical or confusingly similar 166
Trademark or service mark 168
Registrant has no rights or legitimate interests
Registration and use in bad faith 172
UDRP process 175
ccTLD dispute resolution policies 176
auDRP 176
.nz DRSP 177

171

CONTENTS

178

usTLD Dispute Resolution Policy
.uk DRSP 178
INDRP 179
Additional policies 179
Practical ramiﬁcations 181
Conclusion 181
Further reading 182

11 Jurisdiction in cyberspace 183
Rules of private international law 183
Forum non conveniens 184
Dow Jones v Gutnick 185
Adventitious and opportunistic
Effects test 190
Australian cases 191
Early US experience 194
Universal rights 196
Alternative approaches 198
Single publication rule 200
Substantial publication 201

189

Uniform defamation legislation – choice of law 201
Conclusion 202
Further reading 203

12 Defamation in cyberspace 204
Defamation principles 205
Defamation reform 206
Defamation in cyberspace – actions and issues 206
Statute of limitations 210
Single publication rule 210
Single controversy principle
Single cause rule 213

213

Adventitious or opportunistic conduct 213
Jurisdiction for defamatory statement 214
Conclusion 214
Further reading 215

13 Privacy and data protection in cyberspace 216
Information wants to be free 217
Privacy and regulation 218
Information privacy 218
Australia 221
National Privacy Principles (NPP)
Data protection 225
Victoria 225
New South Wales 226

223

CONTENTS

Queensland 226
Western Australia 226
South Australia 227
Tasmania 227
Northern Territory 227
Australian Capital Territory
Abuses 228
Cookies 228
Web bugs 231

228

International Covenant on Civil and Political Rights (ICCPR) 232
Data protection 232
Review 233
Personal privacy 235
New Zealand 240
United States 241
Final comment 242
Further reading 242

14 Electronic mail and online presence 243
243
Attachments 244
Authentication 244
Language 245
Viruses 246
Disclaimers 246
Risk assessment 248
Service of documents by email 248
Time and place of dispatch and receipt 249
Web page presence 250
Liability for online material 250
Disclaimers – conditions of use 251
Information to be placed on pages for practical and legal purposes
Newsgroups and mailing lists 253
The professional ofﬁce and email 253
Backup copies 253
Maintain supervisory checks 253
Records and costing 254
Conﬁdentiality 254
Internal trial 254
Conﬁrmation of sending 254
Access to ﬁles 255
A new form of expression 255
Conclusion 255

15 National electronic surveillance 256
The USA PATRIOT Act 256
Australian response 257

252

CONTENTS

Criminal Code Amendment (Anti-Hoax and Other Measures)
Act 2002 (Cth) 257
Security Legislation Amendment (Terrorism) Act 2002
(Cth) 258
Suppression of the Financing of Terrorism Act 2002 (Cth) 258
Criminal Code Amendment (Suppression of Terrorist Bombings)
Act 2002 (Cth) 258
Telecommunications Interception Legislation Amendment
Act 2002 (Cth) 258
Criminal Code Amendment (Offences Against Australians)
Act 2002 (Cth) 259
Australian Security Intelligence Organisation Legislation Amendment
(Terrorism) Act 2003 (Cth) 259
‘Terrorism act’ 259
Anti-Terrorism Act 2004 (Cth) 260
Surveillance Devices Act 2004 (Cth) 260
Anti-Terrorism Act (No. 2) 2005 (Cth) 261
Ambassador for Counter-Terrorism 262
Memorandums of Understanding on counter-terrorism 263
International Conventions 263
Conclusion 265

16 Cybercrime 267
The Commonwealth Criminal Code and computer crime
Telecommunications services 270
Child pornography 271
Assisting suicide 273

Police and security powers 273
Investigative powers 274
State legislative offences relating to computers
New Zealand 276
Child pornography – international 277
Internet gambling 278
The problem 278
International Gambling Act 2001 (Cth)
Comment 280
Cyberstalking 280

International approach to cybercrime
Spam 283
The problem 283
Spam Act 2003 (Cth) 284
New Zealand response 289
US response 290
EU response 290
Criticisms 291

National Do Not Call Register

291

279

282

275

268

xii

CONTENTS

Identity fraud 292
Identity fraud and terrorism 293
Technological response 293
Governmental response 293
Phishing 295
Further reading 295

17 Evidence of electronic records 296
Evidence of electronic records 296
Background 297
Secondary evidence rule 298
Evidence legislation 301
Legislation abolishing the ‘original document’ rule 304
International perspective 305
Hard copies of electronic records as evidence 308
Originals and copies – envelopes and attachments 310
Conclusion 312
Further reading 312

18 Censorship – Broadcast and online content regulation 313
The Australian Communications and Media Authority 313
The internet 314
Radio and television 314
Telephones 315
Licences 315
Consumers 316
Industry 316
Internet content 316
US cases 317
Australia 318
Referral to law enforcement agencies 320
Take-down notices 320
Service-cessation notices 321
Link-deletion notices 321
Industry codes 322
Complaints and investigations 322
Conclusion 322
International comparison 323
UK 323
EU 323
Television 323
ACMA’s enforcement powers 324
Television Classiﬁcation Guidelines in practice 325
Radio broadcasting codes and breaches 325
Codes of practice 325
Investigations 326
Encouraging violence and brutality – the Alan Jones case
Conclusion 329

327

CONTENTS

xiii

19 An international perspective 330
UN Commission on International Trade Law (UNCITRAL) 331
The UNCITRAL Model Law on Electronic Commerce 332
The UNCITRAL Model Law on Electronic Signatures 332
The UN Convention on the Use of Electronic Communications in International
Contracts 334
World Trade Organization (WTO) 335
General Agreement on Tariffs and Trade (GATT) 336
The Organization for Economic Cooperation and Development (OECD) 336
The Asia Paciﬁc Economic Cooperation (APEC) 338
Summary 340
International Chamber of Commerce (ICC) 340
International Organization for Standardization (ISO) 341
International Labour Organization (ILO) 342
International Telecommunication Union (ITU) 343

UN Centre for Trade Facilitation and Electronic Business
(UN/CEFACT) 343
UN Conference on Trade and Development (UNCTAD) 344
UN Educational, Scientiﬁc and Cultural Organisation (UNESCO)
Universal Postal Union (UPU) 345
World Bank 345
World Customs Organisation (WCO) 346
World Intellectual Property Organisation (WIPO) 346

344

Appendix A Electronic Transactions (Victoria) Act 2000 348
Appendix B UNCITRAL Model Law on Electronic Commerce 357
Appendix C Selected provisions Copyright Act 1968 (Cth) 365
Appendix D ICANN Uniform Dispute Resolution Policy (UDRP) 375
Appendix E .au Dispute Resolution Policy (auDRP) 380
Appendix F National Privacy Principles 386
Index

395

Acknowledgements

On one analysis electronic commerce emerged in mid 19th century with the
invention of the telegraph and telephone. But it was not until the creation and
growth of computers and the internet, and the development of this realm called
cyberspace, that the legal system faced real challenges in private, public and
criminal law. Speaking about cyberspace, ‘the new home of the mind’, John
Perry Barlow declared:
Ours is a world that is both everywhere and nowhere, but it is not where bodies
live . . . In our world, whatever the human mind may create can be reproduced and
distributed inﬁnitely at no cost. The global conveyance of thought no longer requires
your factories to accomplish. We will create a civilization of the Mind in Cyberspace.
May it be more humane and fair than the world your governments have made before.1

In the past two decades many of the legal challenges have been answered. The
milestones in the past 20 years have been many. Some of the major ones are the
global content of the internet (in Reno v American Civil Liberties Union 521 US 844
(1997)), jurisdiction in cyberspace (in Dow Jones v Gutnick [2002] HCA 56), and
the functional equivalence of writing and signatures (by the UNCITRAL Models
Law of Electronic Commerce and the Electronic Transaction Acts). Other areas
that have been dealt with include the regulation of spam, internet gambling,
identity theft, digital privacy, email and cybersquatting.
My interest in this area arose some three decades ago when I undertook a
degree in computing science while practising law. At the time the combination
was most unusual, but the world of cyberspace and the regulation of that world
have now become part of the landscape. The aim of this work is to deﬁne the law
relating to electronic commerce within Australia as determined by the legislature,
judicial interpretations and the common law. It is intended for legal practitioners
and students of what has broadly become known as cyberlaw.
I would like to thank my colleagues Russell Hinchy, Paul O’Shea and my
research assistant William Hickey for their feedback, suggestions and assistance.
I would especially like to thank my assistant and colleague Garth Wooler for his

1 John Perry Barlow, “Declaration of Independence of Cyberspace”.

xvi

ACKNOWLEDGEMENTS

patience, proofreading and contributions. Finally I would thank my late father
and my wonderful family Dianne, Taylor and Chelsea.
Dr Alan Davidson
Senior Lecturer, TC Beirne School of Law University of Queensland
Solicitor and Barrister
April 2009

Table of Cases

A & M Records Inc. v Napster Inc., 239 F. 3d 1004 (9th Cir 2001) 102
Adams v Lindsell (1818) B & Ald 681 57
ADT Services AG v ADT Sucks.com WIPO Case No D2001-0213 167
Airways Corporation of NZ Ltd v Pricewaterhouse Coopers Legal [2002]
NSWSC 138 192
Allocation Network Gmbh v Steve Gregory (allocation.com) WIPO
No D2000-0016 175
American Civil Liberties Union v Reno 929 F. Supp. 824 (1996) 8
APRA v Canterbury-Bankstown League Club Ltd [1964] NSWR 138 90
APRA v Commonwealth Bank of Australia (1993) 25 IPR 157 90
Architects (Australia) Pty Ltd (trading as Architects Australia) v Witty Consultants
Pty Ltd [2002] QSC 139 156
Arica Institute Inc. v Palmer (1992) 970 F. 2d 1067 93
Armstrong v Executive of the President 1 F. 3d 1274 (DC Cir 1993) 309
Armstrong v Executive of the President 810 F. Supp. 335 (1993) 309
Arthur J S Hall & Co v Simmons [2000] UKHL 38, [2002] 1 AC 615 6
Athens v Randwick City Council [2005] NSWCA 317 118
Atlantic Underwriting Agencies Ltd v Compagnia di Assicuranzione di Milano SpA
[1979] 2 Lloyds Rep 240 184
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001]
HCA 63 236, 240
Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 200, 213
Australian Communications and Media Authority v Clarity1 Pty Ltd [2006]
410 FCA 286
Australian Competition and Consumer Commission v Chen [2003] FCA 897 159
Australian Competition and Consumer Commission v Purple Harmony Plates Pty
Limited [2001] FCA 1062 193
Australian Football League v Age Company Ltd [2006] VSC 308 203
Australian Railways Union v Victorian Railways Commissioners (1930)
44 CLR 319 186
Australian Stock Exchange Ltd v ASX Investor Services Pty Ltd (QSC 1999) 153
Autodesk Inc. v Dyason No. 1 (1992) 173 CLR 330 93
Autodesk Inc. v Dyason No. 2 (1993) 176 CLR 300 93, 94, 96
AV et al v IParadigms LLC Company Civ Act. No 07-0293 (ED Va 2008) 69
Ballas v Tedesco 41 F. Supp. 2d 531 32
Barrett v Rosenthal (2006) 40 Cal 4th 33, 146 P 3d 510 209
Bensusan Restaurant Corp. v King 937 F. Supp. 296 (SD NY 1996) 195
Berezovsky v Michaels [2000] UKHL 28 212

xvii

xviii

TABLE OF CASES

Berlei Hestia Industries Ltd v Bali Co. Inc. (1973) 129 CLR 353 113
Bernstein v JC Penny Inc. 50 USPQ 2d 1063 (CD Cal 1998) 115
Bixee v Naukri (2005) IA no 9733/2005 115
Blackie & Sons Ltd v Lothian Book Publishing Co. Pty Ltd (1921) 29 CLR 396 93
Blue Cross and Blue Shield Association and Trigon Insurance Company v. Interactive
Communications Inc. WIPO Case No. D2000-0788 175
Blue Sky Software Corp v Digital Sierra Inc. WIPO Case No. D2000-0165 166
Bosley Medical Institute Inc. v Kremer 403 F. 3d 672 (9th Cir 2005) 168
Braintech Inc. v Kostiuk (1999) 63 BCLR (3d) 156 194
Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34
30, 57, 58, 60

British Petroleum Co. Ltd’s Application (1968) 38 AOJP 1020 121
British Telecom v One in a Million [1999] 1 WLR 903 153
Bruce Springsteen v Jeff Burgar and Bruce Springsteen Club WIPO
Case No. D2000-1532 171
Butera v Director of Public Prosecutions for the State of Victoria (1987)
164 CLR 180 298, 299
BWT Brands Inc and British American Tobacco (Brands) Inc. v NABR WIPO Case
No. D2001-1480 167
Calder v Jones 465 US 783 (1984) 188, 190, 198, 199, 202
Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 113, 149
Cantor Fitzgerald International v Tradition (UK) Ltd [2000] RPC 95 94
Car Toys Inc. v Informa Unlimited, Inc. (2000) NAF 93682 175
Casio India Co. Ltd v Ashita Tele Systems Pvt Ltd (2003) (27) PTC 265 (Del) 195
Caton v Caton (1867) LR 2 HL 127 75, 78
CCOM Pty Ltd v Jiejing Pty Ltd (1994) 27 IPR 481 121
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37, (1998) 193 CLR 519 205
Chief Executive Department Internal Affairs v Atkinson HCNZ unreported
CIV-2008-409-002391 (2008) 290
Church of Scientology v Woodward [1982] HCA 78 236
City Utilities v Ed Davidson (cityutilities.com) WIPO Case No. D2000-0004 175
Coca-Cola v F Cade & Sons Limited [1957] IR 196 169
Commissioner of Inland Revenue v B [2001] 2 NZLR 566 241
Compuserve Inc. v Patterson 89 F. 3d 1257 (6th Cir 1996) 195
Computer Edge v Apple (1986) 161 CLR 171 96
connect.com.au Pty Ltd v GoConnect Australia Pty Ltd [2000] FCA 1148 153
Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 1059 92
Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 105
Cramp & Sons Ltd v Frank Smythson Ltd [1944] AC 328 90
CSR Limited v Resource Capital Australia Pty Limited [2003] FCA 279 158
Cubby v CompuServe 776 F. Supp. 135 (SDNY 1991) 209
Cybersell Inc. v Cybersell Inc. 130 F. 3d 414 (9th Cir 1997) 195, 196
Darryl v Evans (1962) HC 174 32
Data Access Corporation v Powerﬂex Services Pty Ltd [1999] HCA 49 94, 96
Data Concepts v Digital Consulting Inc. and Network Solutions Inc. 150 F. 3d 620 (6th
Cir. 1998) 207
Databank Systems Ltd v Commissioner of Inland Revenue [1990] 3 NZLR 385 30
Derry v Peek (1889) 14 App Cas 337 160
Diageo plc v John Zuccarini WIPO Case No. D2000-0996 167

TABLE OF CASES

xix

Digital Equipment Corporation v Alta Vista Technology Inc. 960 F. Supp. 456 (D Mass
1997) 187
Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 287
Direct Line Group Ltd v Purge IT WIPO Case No. D2000-0583 167
Dixons Group PLC v Purge IT WIPO Case No. D2000-0584 167
Doherty v Registry of Motor Vehicles No. 97CV0050 (Mass 1997) 79
Dow Jones & Co. Inc. v Harrods Ltd 237 F. Supp. 2d 394 (SDNY 2002) 200
Dow Jones v Gutnick [2001] VSCA 249 185, 189
Dow Jones v Gutnick [2002] HCA 56 6, 185–6, 189–90, 191, 196, 198, 200, 204,
205, 210, 211, 214

Dow Jones v Powerclick Inc., WIPO Case No. D2000-1259 161
DPP (Cth) v Rogers [1998] VICSC 48 270
DPP v Sutcliffe [2001] VSC 43 282
Duchess of Argyle v Duke of Argyle [1967] Ch 302 217
Eastman v R (1997) 76 FCR 9 305
Eddie Bauer Inc. v Paul White (2000) eResolution AF-204 161, 168
Ellis v Smith (1754) 1 Ves Jun 11 at 12, 30 ER 205 75
Energy Source Inc. v Your Energy Source NAF No. FA0096364 168
Entores Ltd v Miles Far East Corp [1955] 2 QB 327 58
EPP v Levy [2001] NSWSC 482 217
ESAT Digifone Ltd v Colin Hayes WIPO Case No. D2000-0600 169
Evans v Hoare [1892] 1 QB 593 75, 77, 78
Experience Hendrix LLC v Denny Hammerton and The Jimi Hendrix Fan Club WIPO
Case No. D2000-0364 170
Exxon Corp v Exxon Ins. Consultations [1982] Ch 119 93
Faulks v Cameron [2004] NTSC 61, (2004) 32 Fam LR 417 44
Feist Publications Inc. v Rural Telephone Service Co. Inc. 737 F. Supp. 610, 622
(Kan 1990) 90
Fiber-Shield Industries Inc. v Fiber Shield Ltd NAR (2000)
No. FA0001000092054 169
Firth v State of New York 775 NE 2d 463 (2002) 201, 210, 211
Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd [1981] 1 NSWLR 196 160
Fletcher v Bealey (1885) 28 ChD 688 154
Francis Day & Hunter Ltd v Bron [1963] Ch 587 95
Freeserve PLC v Purge IT WIPO Case No. D2000-0585 167
Futuredontics Inc. v Applied Anagramatics Inc. (9th Circuit 1998) 116
G v Day [1982] 1 NSWLR 24 217
GE Capital Finance Australasia Pty v Dental Financial Services Pty Ltd Case
No. DAU2004-0007 177
Giller v Procipets [2004]VSC 113 237
GlobalCenter Pty Ltd v Global Domain Hosting Pty Ltd Case No. DAU2002-0001 173
Godfrey v Demon Internet Ltd [2001] QB 201 187
Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378 184
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 299
Goodman v J Eban Ltd [1954] 1 QB 550 75
Graham Technology Solutions Inc. v Thinking Pictures Inc. 949 F. Supp. 1427 (ND Cal
1997) 32
Grant v Commissioner of Patents [2005] FCA 1100 122
Griswold v Connecticut 381 US 479 (1965) 232

TABLE OF CASES

Grosse v Purvis [2003] QDC 151 237, 240
Gutnick v Dow Jones [2001] VSC 305 185, 191, 193
Harris v Selectrix Appliances (Complaints Review Tribunal, Decision No 12/2001,
2001) 241
Harrods Limited v Dow Jones & Co. Inc. [2003] EWHC 1162 201
Harrods Ltd v UK Network Services Ltd (1997) EIPR D-106 153
Hawkes & Son (London) Ltd v Paramount Film Service Ltd [1934] 1 Ch 593 93
Healthgrades.com v Northwest Healthcare Alliance No. 01-35648
(9th Cir 2002) 191, 199
Hedley Byrne v Heller [1964] AC 465 246
Helicopteros Nationales de Columbia SA v Hall 466 US 408 194
Henderson v Henderson [1843] 3 Hare 100, 67 ER 313 213
Henry v Henry (1996) 185 CLR 571 184, 214
Henthorn v Fraser [1892] 2 Ch 27 57
Hill v Gatway 2000 Inc 105 F. 3d 1147 (7th Cir 1997) 68
Hoath v Connect Internet Services [2006] NSWSC 158 153, 160, 161
Hodgkinson & Corby Ltd v Wards Mobility Services Ltd [1994] 1 WLR 1564 151
Hotmail Corp v Van$ Money Pie Inc 47 USPQ 2d 1020 (1998) 68
Hume Computers Pty Ltd v Exact International BV [2007] FCA 478 32, 34, 52, 64
I Lan Systems Inc. v Netscout Service Level Corp. (D Mass 2002) 69
IBM Corporation v Commissioner of Patents (1991) 22 IPR 417 121
Ilich v Baystar Corp. Pty Ltd [2004] WASTR 25 49, 50
Inset System Inc. v Instruction Set Inc. 952 F. Supp. 1119 (WD Pa 1997) 192, 194
Insituform Technologies Inc. v National Envirotech Group (1997) LLC, Civ. No.
97-2064 (ED, La.) 118
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 67
International Shoe Co. v Washington 326 US 310 (1945) 194, 203
Investment India Ltd v ICIC (Mumbai High Court 2000) 157
Isabelle Adjani v Second Orbit Communications Inc. WIPO Case No. D2000-0867
170

J Pereira Fernandes SA v Mehta [2006] EWHC 813 41, 43
Jameel v Dow Jones & Co. Inc. [2005] EWCA Civ 75 201
Jane Doe v ABC [2007] VCC 281 237
Jazid Inc. Michelle McKinnon v Rennemo Steinar eResolution Case No. AF-0807 173
Jeanette Winterson v Mark Hogarth WIPO Case No. D2000-0235 169
Jones v Commonwealth [No. 2] (1965) 112 CLR 206 268
Jones v Dunkel (1959) 101 CLR 298 287
Joseph Denunzio Fruit Company v Crane 79 F. Supp. 117 (DC Cal 1948) 77
Julia Fiona Roberts v Russell Boyd WIPO Case No. D2000-0210 170
Kailash Center for Personal Development Inc. v Yoga Magik Pty Limited [2003] FCA
536 118, 158
Kelly v Arriba Soft Corporation 336 F. 3d 811 (CA9 2003) 104
Kitakufe v Oloya Ltd [1998] OJ No 2537 QL (Ont Gen Div) 187
Knight v Crockford (1794) 1 Esp N P C 190, 170 ER 324 75
Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100
FCR 90 113, 146, 167
L v L (Complaints Review Tribunal, Decision No. 15/2001, 2001) 241
LA Times v Free Republic 54 USPQ 2D 1453 (2000) 103
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 93, 95

TABLE OF CASES

Lazarus Estates Ltd v Beasley [1956] 1 All ER 341 76
Lee Teck Chee v Merrill Lynch International Bank [1998] CLJ 188 187
Lemayne v Stanley (1682) 3 Lev 1, 83 ER 545 75
L’Estrange v Graucob [1934] 2 KB 394 80
Libro Ag v NA Global Link WIPO Case No. D2000-0186 171
Lobb v Stanley (1844) 5 QB 574, 114 ER 1366 75, 76
Lockheed Martin Corporation v Dan Parisi WIPO Case No. D2000-1015 167
Lockheed-Arabia v Owen [1993] 3 WLR 468 32
Lott v JBW & Friends PL [2000] SASC 3 90
Loutchansky v Times Newspapers Ltd (Nos 2–5) [2002] QB 783 200
Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 8
Macmillan v Cooper (1923) 93 LJPC 113 90
Macquarie Bank v Berg [1999] NSWSC 526 187, 191, 214, 248
Macquarie Bank v Berg [2002] NSWSC 254 193
Madonna Ciccone v Dan Parisi WIPO Case No. D2000-0847 170
Marengo v Darly Sketch & Sunday Graphics Ltd (1948) RPC 242 150
Maritz Inc. v Cybergold Inc. 947 F. Supp. 1328 (ED Mo 1996) 194
Marks & Spencer plc v One in a Million [1999] 1 WLR 903, [1998] EWCA
Civ 1272 8, 153–6, 158, 160
Mary-Lynn Mondich and American Vintage Wine Biscuit Inc. v Big Daddy’s Antiques
WIPO Case No. D2000-0004 174
McGuren v Simpson [2004] NSWSC 35 32, 34, 44, 52, 64
McLane Company Inc. v Fred Craig WIPO Case No. D2000-1455 167
McLean v David Syme & Co. Limited (1970) 72 SR (NSW) 513 207
Mehta v J Pereira Fernandes SA [2006] EWHC 813 78
Mendelson-Zeller Co. Inc. v T & C Providores Pty Ltd [1981] 1 NSWLR 366 184
Merrill Lynch’s Application [1989] RPC 561 120
MGM v Grokster 545 US 913 (2005) 104
Mick Jagger v Denny Hammerton NAF FA0095261 170
Microsoft Corporation v Amit Mehrotrata WIPO Case No. D2000-0053 175
Miele Inc. v Absolute Air Cleaners and Puriﬁers, WIPO Case No. D2000-0005 173
Minnesota v Granite Gate Resorts Inc. 568 NW 2d 715 184, 194
MP3.com Inc. v Sander WIPO Case No. D2000-0579 168
National Research Development Corp. v Commissioner of Patents (1959)
102 CLR 252 121
National Westminster Bank PLC v Purge IT WIPO Case No. D2000-0636 167
Natural Floor Covering Centre Pty Ltd v Monamy (No. 1) [2006] FCA 518 118
Net2Phone Inc v Los Angeles Superior Court 109 Cal App 4th 583 (Cal. Ct App,
2003) 208
Nicholas v Borg (1986) 7 IPR 1 160
Nokia Corporation v Nokiagirls.com WIPO Case No. D2000-0102 166
NRMA v John Fairfax [2002] NSWSC 563 237
Oceanic Sun Line Special Shipping Co. v Fay (1988) 62 ALJR 389 184, 214
Oggi Advertising Ltd v McKenzie (1999) 44 IPR 661 152–3
Olley v Marlborough Court [1949] 1 KB 532 66
Omychund v Barker (1745) 1 Atk, 21, 26 ER 15 298
Ontario Inc v Nexx Online Inc. [1999] OJ No. 2246 (Sup Ct) 16
Orange Crush (Australia) Ltd v Gartrell (1928) 41 CLR 282 151
PA Consulting Services Pty Ltd v Joseph Barrington-Lew WIPO Case No.
DAU2003-0002 169

xxi

xxii

TABLE OF CASES

Panavision International v Toeppen (1998) 141 F. 3d 1316 (9th Cir) 144, 146
Parker v The South Eastern Railway Co. (1877) 2 CPD 416 66, 68
Peek v Gurney (1873) LR 6 HL 377 160
Philippe Tenenhaus v Telepathy Inc. (2000) NAF 94355 175
Pitman Training Limited v Nominet [1997] EWHC Ch 367 144, 145, 146
Playboy Enterprises Inc. v Calvin Designer Label 985 F. Supp. 2d 1220
(ND Cal 1997) 118, 147
Playboy Enterprises Inc. v Chuckleberry Publishing Inc. 939 F. Supp. 1032 (SDNY
1996) 196
Playboy Enterprises Inc. v Hie Holdings Pty Ltd [1999] ATMO 68 117
Playboy Enterprises Inc. v Welles 162 F. 3d 1169 (9th Cir 1998) 117, 118
Polaroid Corp. v Sole N Pty Ltd [1981] 1 NSWLR 491 113
Powell v Birmingham Vinegar Brewing Co Ltd [1897] AC 710 160
Premier Brands v Typhoon [2000] RPC 477 149
ProCD Inc v Zeidenberg 86 F. 3d 1447 (7th Cir 1996) 67
Qantas Airways Limited v The Domain Name Company Limited (2000) 1 NZECC
70-005 157
R v Brislan, Ex parte Williams (1935) 54 CLR 262 268
R v Burdett (1820) 4 B & Ald 115 188
R v Frolchenko (1998) QCA 43 77, 300
R v Idolo [1998] VICSC 57 270
R v Maqsud Ali [1966] 1 QB 688 300
R v Moore, Ex Parte Myers (1884) 10 VLR 322 76
R v Shephard [1993] AC 380 302
R v Stevens [1999] NSWCCA 69 270
Re Eilberg 49 USPQ 2d 1955 (1998) 170
Re Krupp [1999] EIPR N24 150
Re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52 184
Reckitt & Colman Products Ltd v Borden Inc. (No. 3) [1990] 1 WLR 491 151
Reddaway v Banham [1896] AC 199 151
Rediff Communication Ltd v Cyberbooth AIR (2000) Bom 27 157
Reese Bros Plastics Ltd v Hamon-Sobelco Aust Pty Ltd (1988) 5 BPR 11, 106 30
Regie National des Usines Renault SA v Zhang [2002] HCA 10 184, 214
Register.com Inc. v Verio Inc. 356 F. 3d 393 (2nd Cir 2004) 69, 72
Reno v American Civil Liberties Union 521 US 844 (1997) 8, 13, 272, 317, 318, 323
Rindos v Hardwick (unreported) WASC (1993) 207
Roe v Wade 410 US 113 (1973) 232
Satyam Infoway Ltd v Siffynet Solutions Pvt Ltd (2004) (28) PTC 566 (SC) 150, 160
Scan Inc. v Digital Service Consultants Inc. 293 F. 3d 707 (4th Cir 2002) 198
Schneider v Norris (1814) 2 M & S 286 75
Shell Co. of Australia Ltd v Esso Standard Oil (Aust) Ltd (1963) 109 CLR 407 113
Shetland Times Ltd v Wills and Zetnews Ltd [1997] 37 IPR 71, [1997] FSR 604 114
SM Integrated Transware v Schenker Singapore Ltd [2005] 2 SLR 651 52, 64
Smith v Greenville County (1938) 188 SC 349, 199 SE 416 76
Société Accor contre M Philippe Hartmann WIPO Case No. D2001-0007 167
Sony Corp. v Universal City Studios 464 US 417 (1984) 103
Sony Kabushiki Kaishal v Sin Eonmok WIPO Case No. D2000-1007 168
Specht v Netscape Communications Corp. 150 F. Supp. 2d 585 (SDNY 2001) 70
Spiliada Maritime Corp. Ltd v Cansulex Ltd [1987] AC 460 184, 214

TABLE OF CASES

xxiii

Standard Chartered PLC v Purge IT WIPO Case No. D2000-0681 167
State of the Netherlands v Goldnames Inc. WIPO Case No. D2001-0520 169
State Street Bank and Trust Co. v Signature Financial Group Inc. 149 F. 3d 1368, 47
USPQ 2d (Fed Cir 1998) 119, 122
Step-Saver Data Sys Inc. v Wyse Tech 939 F. 2d 91 (3d Cir 1991) 67
Steven J Caspi v Microsoft Network 323 NJ Super 118 (1999) 69
Sting v Michael Urvan WIPO Case No. D2000-0596 170
Stowe v Thomas 23 F. Cas. 201 (CCED Pa 1853) 93
Stratton Oakmont Inc. v Prodigy Services Co. 1995 WL 323710 (NY Sup Ct
1995) 208
SW Hart & Co. Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 95
Sydney City Council v West (1965) 114 CLR 481 66
Sydney Markets Limited v Sydney Flower Market Pty Limited [2002] FCA 124 148
Szaeg v Minister for Immigration [2003] FMCA 258 55, 56
Telaxis Communications Corp. v William E. Minkle, WIPO Case No. D2000-0756
173

Telstra Corp. Ltd v APRA (1997) 38 IPR 294 90
Telstra Corporation Ltd v Barry Cheng Kwok Chu WIPO Case No. D2000-0423 161
Telstra Corporation Ltd v David Whittle WIPO Case No. D2001-0434 161
Telstra Corporation Ltd v Nuclear Marshmallows WIPO Case No. D2000-0003 161,
175

The Buddhist Society of Western Australia Inc. v Bristile Ltd [2000] WASCA 210 207
The Comp Examiner Agency Inc. 25th Century Internet Publishers v Juris Inc. (CD Cal
1996) 144
The Ian Anderson Group of Companies Ltd v Denny Hammerton WIPO Case No.
D2000-0475 170
The National Ofﬁce for the Information Economy v Verisign Australia Limited LEADR
Case No. 02/2003 177
The Princeton Review Management Corp. v Stanley H Kaplan Educational Centre Ltd
84 Civ 1604 (MGC) (SDNY 1994) 144
The Salvation Army v Info-Bahn Inc. WIPO Case No. D2001-0463 167
The Wiggles Touring Pty Ltd v Thompson Media Pty Ltd WIPO Case No. D2000-0124
170

Theophanous v Herald and Weekly Times Limited [1994] HCA 46 6, 7
Thornton v Shoe Lane Parking Station [1971] 2 QB 163 66, 72
Ticketmaster Corp. v Tickets.com Inc. 54 USPQ 2d 1344 (CD Cal 2000) 70, 109
Ticketmaster Corporation v Microsoft Corporation No. 97-3055 DDP (CD Cal
1997) 114
Timothy R McVeigh v William Cohen 983 F. Supp. 215 (DDC January 1998) 228
Titan Industries Ltd v Prashanth Koorapati & Ors. (1998) (Application 787 in action
179, Delhi High Court) 157
Tourret v Cripps (1879) 48 LJ Ch 567, 27 WR 706 154
Toyota Jidosha Kabushiki Kaisha v S & S Enterprises Ltd, WIPO Case
No. D2000-0802 166
TPI Holdings Inc. v AFX Communications WIPO Case No. D2000-1472 167
Transport Tyre Sales Pty Ltd v Montana Tyres Rims and Tubes Pty Ltd (1999)
93 FCR 421 113
Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 105
Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 107

xxiv

TABLE OF CASES

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005]
FCA 1242 104
University of Melbourne v union melb WIPO Case No. DAU2004-0004 177
University of New South Wales v Moorehouse (1975) 133 CLR 1 98, 107
Victoria Park Racing v Taylor (1937) 58 CLR 479 235
Vita Food Products Inc. v Unus Shipping Co. [1939] AC 277 184
Vivendi Universal v Jay David Sallen WIPO Case No. D2001-1121 167, 168
Voth v Manildra Flour Mills Pty Ltd (1990) 65 ALJR 83 184, 214
Wagner v International Ry Co. 133 NE 437 at 437 (NY 1921) 236
Wal-Mart Stores Inc. v Richard MacLeod WIPO Case No. D2000-0662 167
Wal-Mart Stores Inc. v wallmartcanadasucks.com and Kenneth J Harvey WIPO Case
No. D2000-1104 167
Wal-Mart Stores Inc. v Walsucks and Walmarket Puerto Rico WIPO Case No.
D2000-0477 167
Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471 199
Ward v R [1980] HCA 11 191
Warner Bros Pictures v Majestic Pictures Corp. (1934) 70 F. 2d 310 93
Warnink v Townsend & Sons [1979] AC 731 151
Washington Post Co. v Total News Inc. 97 Civ 1190 (SDNY 1997) 114, 116
Webber v Jolly Hotels 977 F. Supp. 327 (D NJ 1997) 195
Wilkens v Iowa Insurance Commissioner (1990) 457 NW 2d 33, 34, 52
World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 252
Y Liu v Star City Pty Limited PR903625 [2001] AIRC 394 239
Yahoo Inc. v Akash Arosa [1999] FSR 931 157, 194
Yahoo! Inc and GeoCities v Data Art WIPO Case No. D2000-0587 161
Young v New Haven Advocate 315 F. 3d 256 (4th Cir 2003) 198, 199, 208
Zippo Manufacturing Co. v Zippo Dot Com Inc. 952 F. Supp. 1119 (WD Pa
1997) 194, 195, 196
Zoekallehuizen.nl v NVM (2006) 115

Table of statutes

Australian Constitution
section 51 221
section 51(i) 28, 221
section 51(v) 221, 268
section 51(xiii) 221
section 51(xiv) 221
section 51(xviii) 90
section 51(xx) 28
section 51(xxi) 221
section 51(xxii) 221
section 51(xxiii) 222
section 51(xxiiiA) 222
section 51(xxix) 222
section 51(xxxix) 222
section 51(xxxvii) 222
section 52(ii) 222
section 96 222
section 122 28
Commonwealth
Administrative Decisions Judicial
Review Act 1977 (Cth) 328
Anti-Terrorism Act (No. 2) 2005
(Cth) 261–2
Anti-Terrorism Act 2004 (Cth) 260
…
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