#15488 - E Commerce - International Commercial Law

GENERAL
Legal framework	E-commerce Directive 2000/31 EC Given effect in UK by Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) (‘the 2002 Regs’)
Formation and proof of contract	Offer or invitation to treat? Customer’s order is usually contractual offer, supplier’s acknowledgement of receipt is acceptance (2002 Regs, reg. 12) Acceptance? By email, acceptance effective when received, not sent (Thomas v BPE Solicitors) On website, recipient must have had explained to him / her, the different technical steps to follow to conclude the contract (Reg. 9(1)(a)); order & acknowledgement received when addressees able to access them (Reg. 11(2)(a)) (although non-consumers free to make other arrangements) Incorporation of terms? Same rules, incl. battle of forms
Law and jurisdiction, choices and application	Primacy is given to choice of law of the parties (as under Rome) Rule on Internet selling to consumers in Member States under Regulation 1215/2012 (Brussels I) – 14.2
IP AND E-COMMERCE
Parties	Defendants often bodies concerned w/allocation or regn of domain names, ICANN (US) and Nominet (UK)
Passing off	Many cases involving websites ‘passing themselves off’ as other companies To register + use name of well-known co as domain name is fraudulent (Phones 4u Ltd) Many other ways to pass off (display, promo technique, marks) etc
Trade marks	L’Oréal v eBay (2011): found that the operator of an online market place could be liable for the unlawful sale on its website of goods in breach of the rights of a trade mark proprietor
Copyright	Downloading of material by a computed may constitute copying; if not licensed, may constitute an infringing act Problems of secondary infringement involving framing, deep linking and peer-to-peer/file sharing sites Copyright and Related Rights Regulations 2003 (SI 2003/2498) aims to prevent circumvention of technological measures in place to protect copyright (and other IP rights, where copyrighted works are made available to public by electronic mean
B2B E-COMMERCE
General	While most legislation affects use of websites by consumers, B2B transactions are relevant Some likely risks come from: competition law (e.g. ‘concerted practices’ arising out of frequent communications) use of conf. info, copyright or other protected material in e-mails/attachments failing to deal with important points (law / jurisdiction, or incorporation of terms) not considering whether a party (natural person) is acting as a ‘consumer’

B2C E-COMMERCE
E-Commerce (EC Directive) “2002 Regulations”	Regulates provision of goods, services and info to customers by ‘information society service providers’ (ISSPs) ‘Consumer’: any natural person acting other than for his / her trade, business or profession It requires Sellers selling on the internet to provide certain information pre-contract information about their: Reg.6(1): Detailed information about ISSP (identity), location, contact details, other professional + regulatory requirements, VAT number) Reg.6(2): Prices must be clearly + unambiguously indicated, whether incl of tax + delivery Reg.7: Commercial communications (i.e. marketing) information: must be identifiable, must clearly identify promotional offers, must ensure conditions are clear and accessible Reg.9: Information prior to orders being placed by user i.e. prior contract (technical steps, whether contract will be filled and where, how to correct errors, language, the T&Cs); T&Cs must be made available in a way that allows for storage and reproduction (Reg. 9(3)) Reg. 11: Acknowledge receipt of order quickly and by electronic means (method is not specified so webpage can be used) Non-compliance is actionable at instance of enforcement authorities and ISS recipients; principal remedies are: claim for damages for breach of statutory duty (Reg. 13) court order to require supply of contract terms to comply with Reg. 9(3) (Reg. 14) right to apply to court for rescission, if ISSP does not provide means for correcting input errors required by Reg. 11(1)(b) (Reg. 15) Protecting right of person to seek court relief to stop infringement of any rights (Reg. 20)
Consumer Contracts (Information, Cancellation and Additional Charges) “2013 Regulations”	Implement EU Consumer Rights Directive Concern distance selling and supply of digital content, including digital downloads Goods bought over internet can be cancelled w/in 14 days of receipt; selling business must issue a refund ‘without undue delay’ incl. basic delivery charges originally imposed Prior to sale, traders obliged to provide consumers with clear and comprehensible list of information, including: description of main characteristics of product name, address and phone number of their business total price payment and delivery arrangements details of ‘the conditions, time limit and procedures’ that apply to cancellations For digital downloads, retailers must not supply digital content during 14-day cooling-off period unless consumer has given specific consent; once download starts, loses right to cancel Physical delivery of goods must be made when agreed; if not agreed, supply must be made ‘without undue delay’ and at very latest within 30 days’; at seller’s risk until delivered Regulations prohibit high rate phone charges when consumer phones to discuss order – a basic rate number must be supplied
Directive on Privacy and Electronic Communications 2003 (PECR) “2003 Regulations”	Specialised and focused regime of data protection for electronic communications (in addition to Data Protection Act 1998 – Reg. 4) Reg. 5 requires provider of public electronic communications service and provider of communications network to take appropriate security measures Reg. 6 deals with confidentiality of information; prevents accessing or storing of info from subscriber/user computer, except where person told about purpose for access or storage and given the opportunity to refuse (‘cookie’ box) Reg. 7 deals with necessary limitations on ‘traffic data’; must be erased or modified so they cease to be ‘personal’ when no longer required for transmission purposes, unless subscriber has given permission for retention for time necessary for specific marketing or ‘value-adding’ purposes Reg. 8 further expands scope of activities for which permission may be sought (w/ usual provisions relating to provision of data to competent authorities acting under statutory powers or under any provision relating to the settlement of disputes (reg 8(4)) Regs. 22 + 23 deal with transmission of unsolicited communications and for direct marketing, where identity or address of the sender is concealed (spam/junk); practices forbidden, except where recipient has ‘opted in’ (Re. 22(3))

E-Commerce (EC Directive) “2002 Regulations”

Regulates provision of goods, services and info to customers by ‘information society service providers’ (ISSPs)
‘Consumer’: any natural person acting other than for his / her trade, business or profession
It requires Sellers selling on the internet to provide certain information pre-contract information about their:

Reg.6(1): Detailed information about ISSP (identity), location, contact details, other professional + regulatory requirements, VAT number)
Reg.6(2): Prices must be clearly + unambiguously indicated, whether incl of tax + delivery
Reg.7: Commercial communications (i.e. marketing) information: must be identifiable, must clearly identify promotional offers, must ensure conditions are clear and accessible
Reg.9: Information prior to orders being placed by user i.e. prior contract (technical steps, whether contract will be filled and where, how to correct errors, language, the T&Cs); T&Cs must be made available in a way that allows for storage and reproduction (Reg. 9(3))
Reg. 11: Acknowledge receipt of order quickly and by electronic means (method is not specified so webpage can be used)

Non-compliance is actionable at instance of enforcement authorities and ISS recipients; principal remedies are:

claim for damages for breach of statutory duty (Reg. 13)
court order to require supply of contract terms to comply with Reg. 9(3) (Reg. 14)
right to apply to court for rescission, if ISSP does not provide means for correcting input errors required by Reg. 11(1)(b) (Reg. 15)
Protecting right of person to seek court relief to stop infringement of any rights (Reg. 20)

Consumer Contracts (Information, Cancellation and Additional Charges)

“2013 Regulations”

Implement EU Consumer Rights Directive
Concern distance selling and supply of digital content, including digital downloads
Goods bought over internet can be cancelled w/in 14 days of receipt; selling business must issue a refund ‘without undue delay’ incl. basic delivery charges originally imposed
Prior to sale, traders obliged to provide consumers with clear and comprehensible list of information, including:

description of main characteristics of product
name, address and phone number of their business
total price
payment and delivery arrangements
details of ‘the conditions, time limit and procedures’ that apply to cancellations

For digital downloads, retailers must not supply digital content during 14-day cooling-off period unless consumer has given specific consent; once download starts, loses right to cancel
Physical delivery of goods must be made when agreed; if not agreed, supply must be made ‘without undue delay’ and at very latest within 30 days’; at seller’s risk until delivered
Regulations prohibit high rate phone charges when consumer phones to discuss order – a basic rate number must be supplied

Directive on Privacy and Electronic Communications 2003 (PECR)

“2003 Regulations”

Specialised and focused regime of data protection for electronic communications (in addition to Data Protection Act 1998 – Reg. 4)
Reg. 5 requires provider of public electronic communications service and provider of communications network to take appropriate security measures
Reg. 6 deals with confidentiality of information; prevents accessing or storing of info from subscriber/user computer, except where person told about purpose for access or storage and given the opportunity to refuse (‘cookie’ box)
Reg. 7 deals with necessary limitations on ‘traffic data’; must be erased or modified so they cease to be ‘personal’ when no longer required for transmission purposes, unless subscriber has given permission for retention for time necessary for specific marketing or ‘value-adding’ purposes
Reg. 8 further expands scope of activities for which permission may be sought (w/ usual provisions relating to provision of data to competent authorities acting under statutory powers or under any provision relating to the settlement of disputes (reg 8(4))
Regs. 22 + 23 deal with transmission of unsolicited communications and for direct marketing, where identity or address of the sender is concealed (spam/junk); practices forbidden, except where recipient has ‘opted in’ (Re. 22(3))

LIABILITY
Contracts arranged by email	As with paper or oral contract: only liabilities to arise will usually be as between the parties Liability to TPs may arise, if arrangement created any tort (publishing defamatory statements, procuring breaches of contract or other economic torts, or breaches of trust, etc)
Website e-commerce	ISSP’s liability: no reason why it should not be responsible for whatever harms ensue to others, within limits permissible under whatever laws in place at the particular time Awaiting confirmation from ECJ on certain matters; greatest immediate problems arise from use of link/keyword practices (although ECJ has decided Google cannot be held liable for trade mark infringements of advertisers on its webpages that select trade mark keywords without permission of the trade mark owner), and from questions concerning accessory liability for torts and other wrongs committed by service users using interactive sites. Position between ISP and own users contractual; depends on terms between parties, subject to legislation which can affect or invalidate those terms, including UCTA 1977

Contracts arranged by email

As with paper or oral contract: only liabilities to arise will usually be as between the parties
Liability to TPs may arise, if arrangement created any tort (publishing defamatory statements, procuring breaches of contract or other economic torts, or breaches of trust, etc)

Website e-commerce

ISSP’s liability: no reason why it should not be responsible for whatever harms ensue to others, within limits permissible under whatever laws in place at the particular time
Awaiting confirmation from ECJ on certain matters; greatest immediate problems arise from use of link/keyword practices (although ECJ has decided Google cannot be held liable for trade mark infringements of advertisers on its webpages that select trade mark keywords without permission of the trade mark owner), and from questions concerning accessory liability for torts and other wrongs committed by service users using interactive sites.
Position between ISP and own users contractual; depends on terms between parties, subject to legislation which can affect or invalidate those terms, including UCTA 1977

Data Protection


LEGISLATION	European Data Protection Directive of 1995 (95/46/EC) Implemented by Data Protection Act 1998 (DPA 1998) – private protection of personal data Freedom of Information Act 2000 (FOIA 2000) – public access to government information
DPA
OVERVIEW	Requires ‘date controllers’ to be registered before they can lawfully ‘process’ any ‘personal data’ about a ‘data subject’ Once regd, the data controller may only deal with the data in ways prescribed by the DPA ‘Sensitive data’ will require special treatment and protection Data subject can always require data controller to give him basic rights of access to info about what data the controller holds and what is being / like to be done with the data Failure to comply with DPA can result in criminal sanctions Enforced by Information Commissioner and Information Tribunal Aimed at highly automated processing and retrieval schemes (Johnson v Medical Defence Union [2007])
PURPOSE	Two main purposes: 1) To allow individuals access to information held about them 2) To protect information about individuals from being disclosed improperly
DEFINITIONS – s. 1(1) + s. 2	‘Data’: information which: a) is being processed by equipment operating automatically in response to instructions; b) is recorded with intention that should be processed by means of such equipment; c) is recorded as part of relevant filing system or w/intention that should form part of one; d) does not fall within (a), (b) or (c) but is part of accessible record defined by s. 68; or e) is recorded info held by public authority + does not fall w/in...

#15488 - E Commerce - International Commercial Law

About Oxbridge

More International Commercial Law Samples