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E Commerce Notes

LPC Law Notes > International Commercial Law Notes

This is an extract of our E Commerce document, which we sell as part of our International Commercial Law Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

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E-Commerce GENERAL
?E-commerce Directive 2000/31 EC Legal
?Given effect in UK by Electronic Commerce (EC Directive) Regulations 2002 framework (SI 2002/2013) ('the 2002 Regs')
?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 Formation BPE Solicitors) and proof of
- On website, recipient must have had explained to him / her, the contract 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
? Primacy is given to choice of law of the parties (as under Rome) jurisdiction, ?Rule on Internet selling to consumers in Member States under Regulation choices and 1215/2012 (Brussels I) - 14.2 application IP AND E-COMMERCE
?Defendants often bodies concerned w/allocation or regn of domain names, Parties ICANN (US) and Nominet (UK)
?Many cases involving websites 'passing themselves off' as other companies
?To register + use name of well-known co as domain name is fraudulent Passing of (Phones 4u Ltd)
?Many other ways to pass off (display, promo technique, marks) etc
?L'Oreal v eBay (2011): found that the operator of an online market place Trade marks could be liable for the unlawful sale on its website of goods in breach of the rights of a trade mark proprietor
?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
?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 emails/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'

E-Commerce (EC Directive) "2002 Regulations "

Consumer Contracts (Information , Cancellation and Additional Charges) "2013 Regulations "

Directive on Privacy and Electronic Communicat ions 2003 (PECR) "2003 Regulations "

B2C E-COMMERCE
?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 precontract 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)
? 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
?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

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