what is electronic commerce?
refers to:
- all commercial transactions based on the electronic processing and transmission of data and publications
- including text, sound and images and online publications
also includes:
- transactions and publications over the internent and intranets
- electronic funds transfers
- social media
- sms messages
- email
the legislation
electronic transactions act 1999 (cth), based on uncitral model law of electronic commerce 1996, provides the legal framework regarding the use by business and consumers of electronic commerce
all states and territories have enacted parallel legislation based the commonwealth act
comparative tables - 11.30 (11.1)
electronic transactions acts main features
validity of electronic transactions -> a transaction is not invalid because it took place wholly or partly by m eans of one of more electronic communications: electronic transaction acts
-> electronic communication is defined broadly to include emails, web-chatting, phone -texting and voice recognition systems
second point
- general rule is subject to other provisions of the acts dealing with the validity of transactions
- regulations may also exclude the general rule in relation to specified transactions and laws
electronic transactions acts
main features
the legislation is based on the principles of:
fundamental equivalence: the law should treat paper-based commerce abnd electronic commerce in the same way
technological neutrality: the law should not discriminate between different forms of technology
the legisation recognises the following requirements, imposed by law, can be fulfiled in electronic form:
- requirement to given information in writing: s9
- requirement to provide a signature: s10
- requiremen to record information: s12(1)
- requirement to retain a document: s12(2)
electronic transactions act 1999
electronic transactions act
main features
writing: where a law permits or requires a person to give information in writing:
-> permission or requirement is taken to have been met if the person gives the information by means of an electronic communication
-> for this to be acceptable:
- must be reasonable to expect that the information will continue to be accessible for futuure reference; and
- recipent must consent to being given the information via an electronic communication
signatures: where a law requires a person to provide a signture, that requirement is met if:
- a method is used to identify that person and to indicate their intention in respect of the information communicated;
- the method must be reliable as is the appropriate for the purposes for which the information is communicated, in the light of all the circumstances
- recipent must consent to the use of the method
consent:
- parties must reach an agreement in advance as to the use of the particular electronic communication
- consent includes consent that can reasonably be inferred form the conduct of the person concerned
electronic transactions acts
main features
retention of information and documents:
- requirement to record information in writing, to retain a document in hard copy or to retain information the subject of an electronic communication may be met recording or retaining the information in electronic form
- to bge acceptable it mnmust be reasonable to expect that the information will continue to be accessible for future reference
- the method for storing the information must comply with any requirements of the regulations as to the kind of data storage device on which the information is to be stored
time of dispatch of electronic communications: an electronic communication is taken to have been dispatched by the sender when:
- the electronic communication “leaves an information system under the control” of the sender
time of recepit of electronic communications:
an electronic communciation is taken to have been received by the addressee:
- when it becomes capable of being retrieved by the addressee at an elecronic address designated by the addressee
where the addressee has not designated an electronic addess, the time of recept is:
- when the communication has become capable of being retrieved by the addressee; and
- the addressee has become aware that the communication has been sent to that address
electronic commerce and contract law
normal rules of contract law apply to e-contracts:
- intention to contract
- agreement
- consideration
- legal capacity
- consent
- exclusive clauses
shrinkwrap contracts
derive their name from the clear plastic wrapping that encloses many software packages
package includes a ntice stating that by opening the shrinkwrap the purchaser agreed to the terms and conditions enclosed
shrinkwrap contracts typically include provisions such as an arbitration clause, a choice of law and forum clause, disclaimers, limitations of warranties and limitations of remedies
clickwrap contracts
- formed on the internet
- user assents by clicking button marked “i agree” or “i accept”
- clickwrap contracts have the advantage that the user can be given the opportunity tor ead the terms and conditions before assenting
11.160
e-bay international ag v creative festival entertainment pty ltd
browsewrap contracts
a user may download softward without any unambiguous expression of consent to the terms and conditions
e.g. the vendor may merely place a link on the download page with the words “terms of download”
11.150
specht v netscape communications
browsewrap contracts
position in australia is yet to be determined
until the position is clarified, it would be prudent for websites to expressly indicate that terms anbd conditions will apply
the user should not be able to proceed without reading or being given the clear opportunity to read the terms and conditions
it would be prudent to include a mechanism which requires the user to actually scroll through the terms before giving assent
cryptocurrencies
a new challenge to traditional means of exchange and storage, e.g. bitcoin
but there are other systems, and new ones are being developed
bitcoin is autonomous and nto controlled by a cenral authority
blockchain & cryptocurrencies
blockchains - a chain of “blocks”
a “block” consists of a body and header
- the body holds information (a bank ledge which records a group of transactions)
- each block has an identifier (which has some specific characteristics)
- each block when passed on has an identifier
- identifier block id(b) - new ids are created with a transfer of a block to another party
bitcoin
individuals are not identified, except through their “public key” (a crypto representation) a type of digital signature used for bitcoin transfers)
transactions are very difficult to change, and it is expensive to do so, which makes it difficult to cheat
the bitcoin model relies on “miners” who use massive computer time and expertise to unlock and add information and gather it into a block
consensus rules recognise “proof of work” in establishing a block - first (iner) in times wins
domain names
domain names act as de facto trade marks and business identifiers for many organisations
use and misuse of domain names raises several legal issues:
the accc has pointed out that:
- a registered business name does not guarantee a business bname can be used as a domain name
- domain names are leased and not owned and if the lease is not renewed, the name can eb registered by someone else
- danger with unsolicited letters offering domain names and renewals - if there is a renewal letter and it is not from your registar, do not respond to it or send any money
domain names
part two
the scope and breadth of possible domain names is limited
a defensive registration approach is being taken by many to avoid or minise possible disputes:
- domain names should be registered with auda
domain names
remedies
the tort of passing off provides a remedy where a person misrepresents that goods/services have a connection with the plaintiff where this is not the case (e.g. cybersquatters)
11.260
british telecommunications/marks & spencer plc v one in a million ltd - the uk courts of appeal regarded the registration of the domain name as an erosion oft he exclusive goodwill in the name which damaged or was liekly to damage the famous retailer marks and spencer
domain names
remedies
continued
in australia, domain anme registrants with a registered trade mark may utilise the trade marks act 1995 (cth)
it is an infringement where the trade mark is well-known in australia, it is substanitally idenitical with or deceptively similar and is liekly to be taken as indicating a connection between goods or services
ths misleading or deceptive conduct provision in s18 of the acl may also assist a plaintiff (1)
as with any scare resource, disputes have arisen as to who has the right to use a specific domain name
-> the complainant has two options:
- to use the courts, or
- to use the dispute resolution process made compulsory for registratns as a condition of the domain anme allocation licence
11.260 (1)
csr ltd v resource capital australia pty ltd (1)
dispute resolution policies: icann
the purpose of the policies is to provide a cheaper, speedier alternative to litigation for the resolution of disputes between registrants and a party with copeting rights in the domain name
jurisdiction in cyberspace & e-commerce
courts have jurisdiction to adjudicate disputes and which law is to be applied
conflicts of laws or private internation law
borderless nature of cyberspace and e-commerce established frameworks of jurisdiction apply
dow jones & co inc v gutnick 2002 210 clr 575
privacy
under australian common law there is no specific right to privacy
however, information privacy has become a significant concern in the digital age where data can be easily copied and transmitted
the privacy act 1988 cth requires private sector organisations to either adopt an industry-developed privacy code or comply with legislation privacy principles
australian privacy principles (apps): individuals have the right to know why an organisation is collecting their personal information, what information it holds on them, how the information will be used and who else may receive the information
complaints can be made to the office of the australian information commissioner, or appliocation can be made to the federal court of the federal circuit court for an order to restrain an organisation from engaging in conduct that breaches the principles
electronic commerce and crime
there is no acceped definition of computer crime
it can cover a wide range of act:
- misuse of computer softward technology to elicit and illegal or criminal result in data
- hacking
- deliberate transmission of a computer virus
the criminal code act 1995 reformed commonwealth computer crime laws ande xpanded the investigative powers of the federal police
there are uniform powers for law enforcement agencies to compel carriers to preserve the communication records of persons suspected of cyber-based crimes
private copying provisions
under the copyright act 1968 (cth) private electronic copies made for the prupsoes of time-shifting, space-shifting and format-shifting are permitted
a person may record a television or radio program to watch or listen to at a later time (time-shifting), provided it is solely for private and domestic use, to watch or listen to at a more convenient time
it cannot later be sold, rented or distributed
11.350
national rugby league investments pty ltd v singtel optus lty ltd
