ITECHLAW e-COMMERCE LAW COMMITTEE
e-COMMERCE LEGAL DEVELOPMENTS SURVEY 2008/2009
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ITECHLAW e-COMMERCE Law COMMITTEE e-Commerce Legal Developments Survey 2008/2009
Introduction The ITechLaw e-Commerce Law Committee was established at the ITechLaw conference in Chicago in April 2007. Currently it has some 82 members from 27 countries. The initial objective of the eCommerce Law Committee was to establish a network of lawyers from ITechLaw member countries who have a keen interest in e-commerce and are prepared to participate in the proceedings of the Committee and to make contributions on e-commerce legal issues. In pursuit of this initial objective, the ITechLaw e-Commerce Committee undertook a simple survey of the most significant legal developments in the contributors‘ jurisdictions in 2007 and the most significant legal e-commerce issues that the contributors envisaged in their countries in 2008. The ITechLaw e-Commerce Committee repeated the survey for 2008/2009, and received 33 submissions from 21 jurisdictions. The 2008/2009 Survey covered Australia; the Economic Community of West African States; Finland; France; Panama; Poland; the Republic of Ghana and Turkey for the first time. Jurisdictions Surveyed 2008/2009 Australia (1) Austria (2) Belguim (1) Brazil (1) Canada(1) Economic Community of West African States (ECOWAS) (1) Finland (1) France (1) Germany (2) India (3) Ireland (2) Italy (1) Luxembourg (1) Panama (1) Poland (1) Republic of Ghana (1) Spain (4) Turkey (1) United Kingdom (4) Uruguay (1) USA (3)
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Objectives and Methodology The survey had a number of objectives: to obtain a ―snapshot‖ overview of what, in the opinion of the contributors, have been the most significant e-commerce developments in their jurisdiction in 2008, and what are most likely to be the most significant e-commerce developments in 2009. Contributors were requested to limit their responses to three issues for each of the two years; to use the findings of the survey to identify trends and potential topics that can be included on the programmes of future ITechLaw conferences and events; to build the membership of the ITechLaw e-Commerce Law Committee and use the survey as a means of testing whether more substantial surveys or collaborative works or studies can be undertaken by ITechLaw e-Commerce Law Committee.
The survey questions were as follows: Question 1: Please provide brief details of what in your opinion have been the most significant legal e-commerce developments in your jurisdiction during 2008; and Question 2: In your opinion, what are likely to be the most significant legal e-commerce issues in your jurisdiction in 2009? For the purposes of this survey, the term ―e-commerce‖ was given a narrow interpretation limited to the following: online and electronic contracting; electronic/digital signatures; e-commerce advertising issues; and e-commerce consumer protection issues.
The reason for this narrow interpretation was to avoid initial potential conflicts with the work of other ITechLaw Committees (Data Protection/Privacy; Intellectual Property and Outsourcing) and with which there could be an overlap. Notwithstanding this, it was evident from the responses received that it can be very difficult to separate data protection/privacy and intellectual property issues from e-commerce issues. Acknowledgement of Contributors We would like to extend our sincere appreciation to the following for all their time and effort in either responding to and/or assisting with obtaining responses to the survey:
Country
Australia
Contributor Name & Contributor Firm Name Philip Argy - Law Council of Australia Johannes Barbist - Binder Groesswang Attorneys (Vienna) Axel Anderl - Dorda Brugger Jordis Rechtsanwälte (Vienna) Christoph De Preter, Thomas De Meese, Flip Petillion - Crowell & Moring (Brussels)
Email
pargy@argystar.com
Austria Austria Belgium
barbist@bgnet.at axel.anderl@dbj.at cdepreter@crowell.com; tdemeese@crowell.com fpetillion@crowell.com Email brancher@bkgb.com.br
Country Brazil
Contributor Name & Contributor Firm Name Paulo Brancher, Barretta Ferreira Kujawski Brancher e Goncalves
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Canada
Finland
France Germany Germany Republic of Ghana Economic Community of West African States (ECOWAS)
India
Charles S. Morgan, McCarthy Tétrault, Montreal Terho Nevasalo - Hammarström Puhakka Partners (Helsinki) Béatrice Delmas-Linel - De Gaulle, Fleurance & Associés (Paris) Dr. Thomas Stögmüller - teclegal Habel Rechtsanwälte Partnerschaft (Munich) Peter Huppertz - Hoffmann Liebs Fritsch & Partner (Düsseldorf) Dr. O. T. Feyi-Sobanjo - The International Research and Training Centre for Information Technology & Contemporary Laws (Lagos)
cmorgan@MCCARTHY.CA
terho.nevasalo@hpplaw.fi
bdelmas@dgfla.com stoegmueller@teclegalhabel.de peter.huppertz@hlfp.de feyi@cyberlawresearch.org
India
India
Rahul Matthan - Trilegal (Bangalore) Rahul Goel - Seth Dua & Associates (New Delhi) Gurpreet Singh - Amarjit & Associates (New Delhi) Don McAleese, Matheson Ormsby Prentice (Dublin) Philip Nolan - Mason Hayes+Curran (Dublin) Felix Hofer – Hofer Losch Torricelli (Firenze) Erwin Sotiri - LG@vocats (Luxembourg) Alexander Garcia Lopez - Lombardi, Aguilar & Garcia (Panama City) Krzysztof Stefanowicz – Salans (Warsaw) Asier Crespo - Uría Menéndez (Barcelona) Ventura Barba - Tenzing Media (Barcelona) Rodolfo Fernández – Natalia Abascal, Miliners Abogados y Asesores Tributarios (Barcelona) Belén Arribas - Monereo Meyer Marinel.lo Abogados (Barcelona) Ugur Aktekin & Basak Gurbuz - Mehmet Gün & Partners (Istanbul) Contributor Name & Contributor Firm Name Graham Smith - Bird & Bird LLP (London) Helen Anderson - Denton Wilde Sapte (London) Renzo Marchini - Dechert LLP (London) Susan Barty - CMS Cameron McKenna LLP (London) Martin Cerruti, Ferrere Abogados (Montevideo) Kenneth Dort – McGuire Woods LLP (Chicago) Matthew Mousley, Enrico Pagnanelli & John Neclerio - Duane Morris LLP (Philadelphia)
Rahul.Matthan@trilegal.com
rahul.goel@sethdua.com
gurpreet@amarjitassociates.com
Ireland
Ireland
don.mcaleese@mop.ie
pnolan@mhc.ie
Italy
Luxembourg
fhofer@hltlaw.it
es@vocats.com
Panama Poland
Spain
agarcia@laglex.com kstefanowicz@salans.com
acr@uria.com
Spain Spain Spain Turkey
ventura@tenzingmedia.com rfernandez@miliners.com barribas@mmmm.es ugur.aktekin@gun.av.tr basak.gurbuz@gun.av.tr Email graham.smith@twobirds.com Helen.Anderson@dentonwilde sapte.com renzo.marchini@dechert.com susan.barty@cms-cmck.com mcerruti@ferre.com kdort@mcguirewoods.com mcmousley@duanemorris.com epagnanelli@duanemorris.com jmneclerio@duanemorris.com smeyer@fenwick.com
Country UK UK UK UK Uruguay USA USA
USA
Stuart Meyer - Fenwick & West LLP (California)
Future Surveys and Membership of ITechLaw e-Commerce Law Committee
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It is our intention to repeat the survey for 2009/2010 and to expand both the number of countries covered and the number of contributions per country. We will also work at trying to strike a better balance between the number of contributions per country, and in this way get a better proportionality and representation from country to country and geographic region to geographic region. If you are interested in participating in the 2009/2010 survey, and/or participating in the activities of the ITechLaw e-Commerce Law Committee please contact:Chair: Don McAleese, Matheson Ormsby Prentice Solicitors, Dublin, don.mcaleese@mop.ie Vice-Chair: Anja Dekhuijzen, Whitebridge, Amsterdam, dekhuijzen@whitebridge.nl Format of Survey Report In Part 1, we report on the main findings and trends indicated by the responses to the survey and we also comment on some of the more noteworthy developments. In Part 2 , we summarise the responses that were received in respect of each jurisdiction. Don McAleese, Matheson Ormsby Prentice, Dublin, Ireland, Chairman Anja Dekhuijzen, DLA Piper Nederland N.V., The Netherlands, Vice-Chair
May 2009
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E-commerce Legal Developments Survey 2008/2009
Part 1 – Analysis of Findings For the purposes of this survey, the term ―e-commerce‖ was given a narrow interpretation limited to the following: online and electronic contracting; electronic/digital signatures; e-commerce advertising issues; and e-commerce consumer protection issues.
The reason for this narrow interpretation was to avoid initial potential conflicts with the work of other ITechLaw Committees (Data Protection/Privacy; Intellectual Property and Outsourcing) and with which there could be an overlap. Notwithstanding this, it was evident from the responses received that it can be very difficult to separate data protection/privacy and intellectual property issues from e-commerce issues. In Part 2 we summarise the responses that were received in respect of each jurisdiction. One of the challenges we faced in compiling this report was that many respondents when responding to the survey were able to categorise quite specifically the nature of the issues that they had identified as the major developments in their jurisdiction (or where they did not specifically categorise them, it was a relatively straight forward task in compiling the report to do this). However, as a number of the specific issues could also quite legitimately be grouped under slightly more expanded general categorisations (this was particularly the case in the responses in the e-government and e-money fields), it was felt that the report should include an analysis of the main findings under both the specific categorisations and the general categorisations of the legal developments identified by the respondents. Accordingly, the analysis below gives the top three categorisations (both specific and general) for the year 2008, the year 2009 and also for the combined years 2008 and 2009. 2008 Top 3 Specific Categorisations 1. 2. 3. Consumer Protection/Distance Selling/Distance Contracts E-Commerce/Online Services General Law Liability for ISP/Content Providers/Disclosure Obligations 18.6% 11.4% 7.1%
Top 3 General Categorisations 1. 2. 3. 2009 Top 3 Specific Categorisations 1. 2. 3. Consumer Protection/Distance Selling/Distance Contracts E-Commerce/Online Services General Law Advertising/Marketing 12.9% 9.6% 8.0% E-Contracting / e/m-Commerce / Online Services Consumer Protection/Distance Selling/Distance Contracts E-Government 21.4% 18.5% 11.4%
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Top 3 General Categorisations 1. 2. 3. E-Contracting / e/m-Commerce / Online Services E-Government Consumer Protection/Distance Selling/Distance Contracts 17.7% 12.9% 12.4%
2008 and 2009 Combined
Top 3 Specific Categorisations 1. 2. 3. Consumer Protection/Distance Selling/Distance Contracts E-Commerce/Online Services General Law Advertising/Marketing 15.9% 10.6% 6.0%
Top 3 General Categorisations 1. 2. 3. E-Contracting / e/m-Commerce / Online Services Consumer Protection/Distance Selling/Distance Contracts E-Government 19.6% 15.9% 12.1%
The main areas of activity are: Consumer protection/distance selling/distance contracts; E-commerce/online services general law; Liability for ISP/content providers/disclosure obligations; E-government; Advertising/marketing.
Noteworthy Findings and Developments There was quite a degree of consistency between many of the responses received. However, a number of responses are noteworthy in their own right. These included: General Legislative developments – a number of countries are introducing e-commerce enabling/framework legislation for the first time, while others are reviewing/updating/consulting on their existing e-commerce enabling legislation; Unfair business practices – in the EU a number of countries are introducing legislation to implement the EU Directive on Unfair Business Practices.
Specific Online attachment of property (Austria); Recent High Court decision ruling that it is not sufficient to provide evidence that an email has been sent, but the sender must also prove that it reached the recipient (Austria); Important decisions on jurisdictions/applicable law concerning a betting website; liability for hosting and online dating and privacy (Belgium);
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Provincial Supreme Court Ruling that merely hyperlinking to defamatory material without repeating the comments itself does not amount to publication (Canada); Fraud alert reporting requirements – statutory amendments allowing an individual to have a ―fraud alert‖ notice put in a credit file maintained by a consumer reporting agency, and obliging any businesses who conduct a credit check against the file not to proceed with the transaction without taking reasonable steps to verify the identity of the person involved in the transaction (Canada); First level civil court case holding that websites cannot publish any advertisements for alcohol in a strict interpretation of the Evin Law (France); Model instruction for the consumer‘s right of revocation published (Germany); Higher regional court ruling concerning the liability of Admin-C (Germany); Income tax appellate tribunal ruling that a foreign company operating a computerised reservation system (though the server was located outside India) has a taxable presence in India (India); Publication of operating guidelines for banks in field of mobile payments (India); Settlement of ―file sharing‖ case taken by 4 record companies against large ISP (Ireland); Trialing of behaviourial monitoring programs raises data protection and interception issues and stand off between UK and EU (UK); Software as a service (USA); Introduction of data breach prevention standards (USA).
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Part 2 Country Summaries 2008 COUNTRY Most significant legal e-commerce developments and that have occurred Australian Securities and Investments Commission’s review of the Electronic Funds Transfer Code of Conduct – generated considerable interest during the year. Their proposals following the review were published in October 2008. The Attorney- General discussion paper - sought submissions on the extent to which Australia should ratify the United Nations Convention on the use of Electronic Communications in International Contracts. This would involve amendments to Australia‘s existing electronic transactions legislation which is in turn adapted from the UNCITRAL Model Law on Electronic Commerce. Disclosure of IP Addresses disclosure of contact details of customers of file sharing platforms by ISP to rights exploitation associations (who only know the IP address) was heavily discussed and a court case thereto is currently pending with the European Court of Justice (follow-up case to the ―Promusicae‖ judgment). Keyword advertising - court cases are already pending, one of which with the European Court of Justice. Online attachment of property - in March 2008 an amendment to the Federal Act on Attachment of Property came into effect. Pawned objects may now be disposed of online by selling them through online auctioneers to obtain higher proceeds. Such attachment, however, will often conflict with site policy, e.g. concerning the interruption of auctions when third parties ask for remedies. This explains the cautious acceptance of the amendment in practice. Receipt of an Email - Austrian Ecommerce Act determines electronic contractual declarations, other legally significant electronic declarations and electronic confirmations as being 2009 Most significant legal e-commerce issues anticipated The revised EFT Code of Conduct – will be released mid 2009 and is expected, amongst other things, to include a regime dealing with mistaken electronic payments – a cause of some consumer dissatisfaction to date. United Nations Convention on the use of Electronic Communications in International Contracts Australia is likely to ratify this Convention. This would involve amendments to Australia‘s existing electronic transactions legislation and would ensure by pre-emption increased uniformity between Australian State jurisdictions. Consumer Protection - the government plans to further improve the level of consumer protection in the field of ecommerce (especially with regard to the information obligations about the consumer rights, transparency of the price information and the unjustified delivery of invoices). Keyword Advertising - in 2007, the Austrian High Court ruled that keyword advertising issued to achieve a higher ranking on meta search engines is allowed when using only generic terms. The High Court did not, however, decide whether the use of registered trademarks held by others to promote oneself on defined "advertisement columns" of search engines is permitted by law. In May 2008 the Austrian High Court requested the European Court of Justice to provide preliminary references in concern to this question. If the ECJ should limit keyword advertising on the "advertisement columns", too, the Austrian High Court is expected to adopt a much stricter course regarding keyword
Australia
Austria
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred considered as received if the party for whom they are intended can retrieve them under normal circumstances. According to procedural law, the sender of the declaration has to prove the receipt of the letter to win the civil procedure. This is also the case for electronic mail. In a recent decision, the Austrian High Court ruled that it is not sufficient to provide evidence that an email had been sent, but the sender will also have to prove that it reached the recipient. Practically this means that the sender will have to claim a short note of receipt; otherwise he will not be able to fulfil his burden of proof in court.
2009 Most significant legal e-commerce issues anticipated advertising in general. Used software - a question of great importance will be the right to resell software licenses (used software), particularly in the new market situation. The Austrian law is rather stringent as to the resale and re-licensing of software licenses, even in the case that the first licensor falls bankrupt or has no further use for the software. Under Austrian law, licensor's intellectual property rights are only exhausted if software is sold on data carriers. It is, however, uncertain whether the exhaustion principle can further be applied to non-corporeal goods. If so, a justified interest of licensor not to accept resell due to anti piracy reasons may be argued. It is expected that this will be a top issue in the near future as German used software licensors try to enter the Austrian market. Online Gaming; Reform of the 1999 Belgian Gaming Act - this will lead to a system of licenses for online operators and to a strict liability system for ISP‘s and financial services providers. Online pharmacies - now that the regulatory framework has been put in place by the Belgian government, strong growth is expected in the number of activities in this area. This is also expected to trigger litigation. The first litigation between an online pharmacy and a trade association representing the pharmaceutical manufacturers has already been reported. Online Marketing Practices - the Belgian Privacy Commission has announced a position paper on online marketing practices.
Belgium
Jurisdiction / Applicable Law; Betting Website; ECJ referral by the Liège Appeals Court in the Real Madrid / betting websites litigation (C-584/08) - the ECJ will have the opportunity to specify whether, and if so under which conditions, a ―sufficient, substantial or meaningful connection‖ is required between a foreign website and the national territory of an EU Member State, so as to allow the courts of that Member State to exercise jurisdiction under Article 5(3) of Council Regulation 44/2001 on jurisdiction and recognition and enforcement of judgments. Liability for Hosting: Decision of the Brussels Court of Commerce in the eBay litigation – the fact that a hosting provider stores third-party content in a particular visual setting or with a particular look and feel, does not deprive that hosting provider from the benefit of the liability exemption provided under the E-commerce Directive;
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred when a hosting provider is served notice to remove or take down illegal materials, this does not imply that the hosting provider should also ensure that such illegal materials do not reappear in the future (a new notice is required at each time). This decision departs from earlier decisions in France (eBay) and Germany (Ricardo). Online dating and privacy - decision of the High Court of Commerce which considered that the ―refer a friend‖ practice, whereby subscribers of information society services provide names and e-mail addresses of contacts, who then receive commercial messages, constitutes a violation of Belgian trade practices and of Belgian privacy law. Liability of Internet Services Providers (“ISPs”). In the course of 2008, there were many lawsuits and debates on the liability of the Internet Services Providers for the content of websites. Generally speaking, one may say that there are two trends regarding ISPs‘ liability: (i) whenever the ISPs have editorial control (e.g., news, interviews and editorial comments) the ISP will be accountable for such content in accordance with Brazilian laws regarding tort or contract liability (as the case may be). In certain instances of ISP having editorial control over the content, Brazilian Courts have held ISPs liable for website content pursuant to the specific liability standards of the Brazilian Press Law; or in case there is no editorial control by the ISPs, e.g., for the content included by users in collaborative networks, the Courts have ruled in the sense that the ISPs will be considered liable for the displayed material only if, upon discovering the existence of a potentially unlawful
2009 Most significant legal e-commerce issues anticipated
Brazil
(ii)
Sale and advertising of illegal or controlled products. Brazilian laws and regulations set forth several restrictions for the sale and advertising of certain products in Brazil, such as medicines, firearms, beverage and tobacco (e.g., advertising of tobacco must contain a warning on the potential harm caused by its use). The sale of illegal products through the Internet is a major concern for Brazilian authorities, especially in view of the risks to human health and safety. Moreover, the authorities are also concerned that the advertising of certain controlled products online must comply with applicable regulations when the advertising is in Portuguese and targets Brazilian consumers (e.g., the sale of products for infants, which is subject to certain restrictions set forth by the Brazilian Sanitary Surveillance Agency – ANVISA). Brazilian advertising selfregulation code establishes special rules for the advertising of specific products such as food, financial and capital services, education and firearms. Specifically in relation to
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred act relating to such material, they fail to take any action. From that moment, if it is proved that the ISP, deliberately or by omission, through negligence or carelessness, violated the rights of or caused damage to another person or entity, it will be obliged to indemnify the aggrieved party for losses and damages. This issue will most likely continue to be greatly debated in 2009, in view of the significant increase in social networks and collaborative tools in Brazil, such as Orkut and You Tube. Brazilian Courts have been flooded with individual claims against the main ISPs for honor, image and other personal right violations. The legal issues involved in this subject include whether the ISP should be liable for the content posted by third parties and/or they should previously monitor the whole content posted online before making it available to the public. Child pornography through the Internet. In 2008, the Brazilian government enacted a new law (Act No. 11,829), which altered the Brazilian Child and Adolescents Protection Code (Act No. 8,069/90) to establish higher criminal sanctions for child pornography. Among the criminal conducts are the electronic storage, distribution, purchase, possession, display and publication of photographs or videos containing child pornography. There is a strong social movement to combat child pornography in Brazil and the governmental authorities have targeted the online distributors of pornography in view of the wider reach and faster dissemination of the illegal content. e-Government – the Brazilian government has been investing considerable resources in the migration of its public services to the internet, facilitating bureaucratic procedures with society and the
2009 Most significant legal e-commerce issues anticipated advertising on the Internet, the code restricts the advertising of tobacco products, alcoholic beverages and firearms to prevent access by minors. Cyber Crimes. There are several bills of law currently under debate in the Brazilian Congress. As a reaction to the overall concern of Brazilian In 2007, on at least two occasions, the Brazilian Senate attempted to approve bill of law No. 72/2000, which creates 11 specific cybercrimes (including password stealing, "phishing", credit card and mobile phone falsification, and unauthorized access to data). Despite the fact that society supports the creation of tools and legal measures that increase security and scrap crimes on the Internet, said bill of law has been subject to severe criticisms. As a matter of fact, in addition to some relevant legal and technical issues related to the crimes it creates, the bill also imposes several new and controversial obligations on ISPs, which include: maintain user access logs for three years and forward to the authorities any known evidence of unlawful acts in any network under its responsibility. In July of 2008, without any further discussions, the Senate approved the bill with amendments. The bill has been sent to the Brazilian House of Representatives for a new round of votes and approval. It is likely that the bill of law, as amended by the Senate, will be voted by the House of Representatives and enacted by the President in 2009. Taxation: taxation of services rendered and products downloaded through the Internet is a quite controversial topic in Brazil. At least in principle, in case one entity renders services through the Internet in Brazil (to Brazilian customers, collects payments in Brazilian Reais, etc.),
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred rendering of public services via the internet, as well as making its internal and external procedures more efficient (including as concerns electronic bidding procedures, which permit enormous savings for the government. With regard to litigation, in December 2006, Brazilian Congress approved Act No. 11,419, which amended the Brazilian Code of Civil Procedure in order to implement the electronic judicial process. During 2007 and 2008 many courts have implemented the electronic process, adopting different systems, databases, procedures, electronic certificates and signatures, and many legal issues have been raised among the government, the courts and society. Moreover, in 2007 and 2008, the issue of whether imprisoned defendants can participate in a hearing online, through videoconference, without having to leave the detention facility, has also been subject to great debate. By the end of 2008, the Brazilian Congress has approved a Bill of Law that authorized defendant‘s videoconference, which has been sanctioned and enacted by the Brazilian President in January 2009 (Act No. 11,900/09). Canada General - While there were some ―big events‖ in 2007 in Canada (notably the Supreme Court case (Dell Computer Corp -v- Union des Consommateurs) and extensive consumer protection rules for internet contracts) 2008 was a quiet year in Canada on the e-commerce front. Online Defamation – The British Columbia Supreme Court ruled that merely hyperlinking to defamatory material without repeating the comments itself does not amount to publication (Crookes -v- Wikimedia Foundation Inc.). The finding by the court that the mere creation of a hyperlink in a website does not lead to a presumption that persons read the contents of the website and use the hyperlink to access the defamatory words is an important
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2009 Most significant legal e-commerce issues anticipated such entity may be subject to taxation in Brazil (and in this case, the municipal Services Tax shall be levied). With regard to the sale of products online, generally speaking the sale of online products conducted via the Internet is treated as a common purchase made in a store. When the purchase is made by a resident in Brazil via a website located abroad, the physical delivery of the product is treated as a regular import-type transaction. The problem lies in case of downloading. At least in principle, the tax authorities in Brazil may charge the withholding income tax commonly levied on the remittance abroad of royalty payments. However, in those instances, it is very difficult for the tax authorities to tax the sale of online products and rendering of services through the Internet, but the tax authorities are increasingly targeting online transactions.
Smart Phones for e-Purchases – with increasing use by people of their smart phones for epurchases, it is anticipated that there will be a wave of related new legal issues.
The Introduction of the Electronic Commerce Protection Act (ECPA) (currently on second reading)
If passed in its current form, the ECPA will Prohibit the sending of ―commercial messages‖ to an ―electronic address‖ unless the recipient has consented
2008 COUNTRY Most significant legal e-commerce developments and that have occurred finding in the context of internet publication. Fraud Alert Reporting Requirements – At the provincial level concerns about identity theft resulted in amendments to Ontario‘s Consumer Reporting Act. In certain situations, credit grantors will be required to take additional steps prior to completing a transaction with an individual. The amendments allow for an individual to have a ―fraud alert‖ notice put in a credit file that a consumer reporting agency maintains about him or her. If a business conducts a credit check on that individual and discovers a fraud alert in his or her file, the business shall not proceed with the transaction without taking reasonable steps to verify the identity of the person involved in the transaction.
2009 Most significant legal e-commerce issues anticipated to receiving it and also unless the message complies with specified formalities (such as providing for an easy opt out/unsubscribe mechanism). Prohibit the installation in the course of the commercial activity of a computer programme that causes electronic messages to be sent from that computer without the express (informed) consent of the owner/authorised user of the computer (anti-spyware). Institute a right of private action under PIPEDA for a privacy violation or under the Competition Act (misleading advertising). Repeal the ―do not call‖ list provisions of the telecommunications legislation. Provide for maximum penalties of up to CAD$1million for an individual or up to CAD$10million for any other person.
Economic Community of West Africa (ECOWAS) and Republic of Ghana
E-Commerce Legal Framework Draft guidelines on Electronic Commerce in ECOWAS were produced in July 2007. It is the first, and to date the only, legal framework put in place at regional level for the promotion of e-commerce in West Africa. Its stated objective is to furnish the necessary security and legal framework for the emergence of reliable economic commerce in the sub-region. It also aims to provide member nations with a template of internationally acceptable rules to remove legal obstacles and create a more secure legal environment for electronic commerce. The legal framework comprises of five titles: the terminologies; the scope of application of electronic commerce; electronic advertising; electronic contract obligations; and ensuring the security of electronic transactions.
Jurisdiction/Applicable Law the Electronic Transactions Bill provides that, notwithstanding any provision of an agreement to the contrary, the supply of goods pursuant to any contract to consumers in Ghana shall be governed by the provisions of the Bill. Given the increasing use of ecommerce for regional integration and business expansion among citizens within the region, this provision could create conflict among contracting parties in the region should other nations follow Ghana‘s example in their ecommerce legislation. This could inhibit e-commerce development in the region, thus making a mess of the concerted regional economic integration efforts via ecommerce.
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred E-Commerce Legal Framework – Ghana Electronic Transactions Bill was produced in 2006 and introduced to the parliament in August 2008. It aims to provide for and facilitate electronic communications and related transactions in the public interest, by removing and preventing barriers to electronic communications and transactions and also by promoting legal certainty and confidence in electronic communications and transactions in the country. The bill applies to almost all forms of online activity and the use of electronic communications to the extent that they may have legal implications. Amongst other things, the bill provides for the legal recognition of: data messages and records; electronic signatures and "advanced" electronic signatures (bearing higher evidential value) as a secure form of electronic signing; and electronic data, subject to certain conditions. The bill also provides for extensive consumer protection in electronic transactions. For instance, it is provided in section 57 that any provision in any agreement which excludes any consumer rights provided for in the bill shall be void. It also provides for the establishment of a certifying agency to, amongst other things, license and monitor the conduct, systems and operations of encryption and authentication service providers to ensure compliance with conditions of the license and regulations made by the Minister and the provisions of the bill and regulations made thereunder. E-Commerce Legal Framework Ghana National Information Technology Agency Bill was produced in 2006 and introduced into the parliament in August 2008. This bill establishes an agency to regulate the provision of information communications technology under the Electronic Technology Act in Ghana and to provide for incidental and connected matters. Specifically, the bill empowers the agency to:
2009 Most significant legal e-commerce issues anticipated Electronic oath - the conflicting provisions on ‗electronic oath‘ in the Electronic Transactions Bill could lead to legal and regulatory confusion within the country and the ECOWAS community. For example, while Section 5(i) exclude the Swearing of Affidavits or Statutory Declarations before a Commissioner of Oaths or Notary Public from the scope of the Bill, section 18 (1) stipulates that where a law requires a signature, statement or document to be notarized, acknowledged, verified or made under oath, that requirement shall be deemed to be satisfied if the electronic signature of the person authorized to perform those acts is affixed to an electronic record. Electronic Signature definition the conflicting definitions of electronic signature in the bill could create practical and legal impediments to its uptake in the country. This could also create legal uncertainty to other parties that may have wished to do business in Ghana in electronic format, since they won‘t know which definition will be upheld by the courts. In one instance, " electronic signature" is defined as an electronic signature which results from a process which has been accredited by the Agency under this Act. In another instance, "electronic signature" is defined as data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred establish or monitor the implementation of national information communications technology policy; implement and enforce the provisions of the Electronic Transactions Act and regulations made thereunder; be responsible for the regulation of licensees issued under the provisions of the Electronic Transaction Act for ensuring fair competition among license holders; resolve all matters involving domain names between the domain name registrar under the Electronic Technology Act in accordance with the provisions of the Act; investigate and resolve any dispute between license holders under the Electronic Technology Act referred to it by License holders; investigate complaints by users of their failure to obtain redress from licensed holder under the Electronic Technology Act; ensure the systematic implementation of national information communications technology policy throughout Ghana; and issue such guidelines and standards as it deems necessary, from time to time.
2009 Most significant legal e-commerce issues anticipated
Finland
Consumer Rights: Proposal for a Directive of the European Parliament and of the Council on Consumer Rights - The proposal‘s objective is to contribute to the better functioning of the business-toconsumer internal market by enhancing consumer confidence in the internal market and reducing business reluctance to trade crossborder. The proposal aims at revising four Directives: Directive 85/577/EEC on contracts negotiated away from
None - except for the Proposal for Act on Strong Electronic Identification and Electronic Signatures and the Proposal for a Directive of the European Parliament and of the Council on Consumer Rights
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred business premises, Directive 93/13/EEC on unfair terms in consumer contracts, Directive 97/7/EC on distance contracts, Directive 1999/44/EC on consumer sales and guarantees. They contain minimum harmonisation clauses meaning that Member States may maintain or adopt stricter consumer protection rules. Member States have made extensive use of this possibility and the outcome is a fragmented regulatory framework across the Community which causes significant compliance costs for businesses wishing to trade cross-border. If the proposal is approved in the European Parliament this will mean a significant abatement for the Finnish consumers. Electronic Identification and Electronic Signatures: Proposal for Act on Strong Electronic Identification and Electronic Signatures - The new Act when approved will replace the current Act on Electronic Signatures. The main purpose of this proposal is to clarify the legislation and to establish ground rules for the electronic services in the Finnish market. It will also create better opportunities to develop electronic identification services and widen the consumer‘s possibility to use electronic services. Strong electronic identification is based, unlike electronic signature, on ―trust network‖ created by the electronic service providers and will be focused on the identification of private individuals. The proposed provisions regarding the electronic identification are quite unique and have no equivalent in the European Union level. Instead, the provisions regarding the electronic signature remain in general terms the same. The Act is intended to come into force on September 2009. Consumer Protection Law – The marketing chapter in the Consumer Protection Law has been changed on 1 October 2008. The principles of the new provisions correspond to the principles of the old ones. However, the new provisions are more detailed.
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred What is new is that it now also covers the trader's conduct in a customer relationship after the agreement has been made, for example, the duration of the process of the customer service or the complaints filed by the client. Also, more details are required from the companies regarding the marketing information on products and customer relations. The changes also define in more detail than before all the procedures that are improper from the point of view of the consumer and against Consumer Protection Law. France General- during 2008, e-commerce transactions have grown by 29% to reach a total of €20.1 billion, thus confirming the dynamism of this sector in spite of the economic slowdown. A consumer survey at the end of 2008 shows a satisfaction level of 97% for e-commerce. This may be related to new French legislation enacted during the course of 2008 to increase the protection of consumers. Consumer Protection / Unfair Competition: Chatel Act (Loi Châtel) – this has been in effect since June 1st 2008, ―for the development of competition for the benefit of consumers‖ includes five provisions that specifically cover consumer protection in e-commerce transactions in France; In particular this new Act requires that: before the conclusion of an ecommerce transaction, the professional seller must mention the maximum date by which the product will be delivered or the service will be provided to the consumer, regardless of the value of such product or service; a telephone number must now be systematically provided by the professional seller to the consumers to allow a purchaser to be effectively in contact with the seller and the telephone communications must be charged at normal cost when they are in
2009 Most significant legal e-commerce issues anticipated
General- The French e-commerce industry foresees reaching €30 billion in transactions by 2010 in spite of the economic context. The French government is becoming increasingly sensitive to the importance and economic impact of e-commerce and it is to be expected that the legislative efforts initiated in 2008 will continue in order to increase the protection of consumers, in particular with respect to the protection of personal data in the e-commerce context and also with respect to e-commerce fraud (financial fraud, IP infringement, unfair competition) that impacts both consumers and e-commerce sites. Proposal for a new consumer protection Directive- this would primarily consolidate and improve four existing directives including the EU Directive on distant selling contract of 1997 in order to better harmonize the EU consumers rights. This may eventually have an impact on the existing ecommerce regulations in France. Mobile On line contractingcontracting through a (third generation) mobile phone should increase in 2009 and in the next few years. Therefore, it is probable that French courts will have to address the issue of the validity and proof of the consent
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred relation to the performance and delivery of an order, to the right for the consumer to withdraw the order and to any warranty claim in relation to the product delivered (no extra charge for hotlines and waiting time); the professional seller must also mention specifically whether the right for the consumer to withdraw the order (the statutory right of withdrawal applies within 7 days from the date of the order and can of course be extended by the professional seller) applies to the transaction and what limitations and conditions apply to such right, as applicable. in the event the consumer makes a legitimate use of the right to withdraw the order, the professional seller must reimburse the total cost of the transaction to the consumer, including shipping costs, within 30 days following notification by the consumer of the withdrawal – statutory penalties will apply in case of delay beyond 30 days.
2009 Most significant legal e-commerce issues anticipated (or of a payment) given through the means of mobile phone technology.
Consumer Protection / Unfair Competition: Law on the Modernization of the French Economy ("Loi pour la Modernisation de l'Economie" or LME) - this provides that consumers must be protected against contractual provisions that are either misleading or unfair (abusive). A decree shall soon list these clauses more specifically. There will be a black list for the unfair clauses that are deemed illegal and void and a grey list for the unfair clauses for which the defendant will have the possibility to try to prove that the clause at stake is not unfair. It is an important change with respect to the former legal regime of "unfair clauses" as French courts can now rule directly on the illegal nature of unfair clauses even in the absence of a specific claim from the consumer. Online advertising- the LME Law prohibits unsolicited and repeated
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred commercial solicitations by advertisers as unfair commercial practices. More generally the French government agency Internet Rights Forum, has initiated a consultation effort with respect to Online Behavioural Advertising primarily focused on the protection of the consumers personal data. French case law - this has continued to clarify both the application to ecommerce of existing regulations for the distribution of products and services and the conditions for fair competition between the actors of traditional commerce and ecommerce. For instance, a first-level civil court (TGI Paris January 8, 2008, Anpaa vs. Heineken) held that websites cannot publish any advertisement for alcohol in a strict interpretation of the Evin Law and implementation decrees that regulate alcohol advertising in France. Consumer Protection/Amendment of the German Law against Unfair Competition (“UWG”) - at the end of 2008, some of the provisions of the German Law against Unfair Competition (―UWG‖) were changed by a new act. This act incorporates the provisions of the Directive for the Protection from Unfair Business Practices (EU Directive 2005/29/EG). The new UWG will have a schedule added to it containing thirty misleading and aggressive commercial activities which are forbidden in all circumstances – ―per se bans‖. This list includes thirty precise circumstances, which are always anti-competitive. Furthermore, and of particular interest to businesses, the scope of application of the UWG is being significantly extended both in respect to time and facts. Until now, purely competitive activities (i.e. all activities promoting sales) which are carried out in the run-up to the conclusion of a contract or similar were included in the Act. In future, to differentiate from the established term ―competitive activity‖, every ―commercial activity‖
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Germany
Social Networks and personalized advertising - the legal obligations that arise out of the use of social networks such as Facebook, MySpace or the German StudiVZ, both for the user and the sites themselves, will also be one of the most significant legal e-commerce issues. The law in this area is still relatively unsettled, but some recent developments have created intriguing precedent, and legislation in motion promises to keep things interesting for the foreseeable future. In particular, with regard to personalized advertising based on member profiles, it seems safe to expect ongoing controversial discussions. Liability and User generated Content -the liability of user generated content platforms such as YouTube or Flickr for infringement of third party intellectual property rights is also going to be one of the major legal e-commerce issues. Exhaustion of copyright -
2008 COUNTRY Most significant legal e-commerce developments and that have occurred will trigger a test under the UWG. In addition, it will not only be commercial activities in the run-up to the conclusion of a contract that must be checked under competition law, but also activities during the performance of the contract as well as activities which arise out of it. Furthermore, the draft Act codifies the requirement for businesses to provide consumers with all the material information which they need in order to conclude the contract. This means that the information requirements will increase considerably. These changes will also have a huge impact on the future of online advertising and its compliance with these strict rules. Keyword advertising - recently, the German Bundesgerichtshof had to judge if ―Google Adword Advertising‖ could be considered a trade mark infringement, it found no trade mark infringement in one particular case that concerned a company name. In another case that concerned a registered trade mark, the court referred the main adword question to the European Court of Justice (ECJ). At least with regard to company names of competitors it seems that their use as an ―adword‖ does not constitute a trade mark infringement under German law. Model instruction for the consumer’s right of revocation according to German law and based on the Directive 97/7/EC on the protection of consumers in respect of distance contracts, consumers have a right of revocation when contracting with an entrepreneur. Section 355 BGB (German Civil Code) stipulates a two-week period within which the consumer may revoke a contract. The entrepreneur is obliged to instruct the consumer about such right of revocation. The consequence of a late instruction is the extension of the two-week period up to a one month period. The right of revocation will not extinguish at all if the consumer has not been properly instructed on his right of revocation.
2009 Most significant legal e-commerce issues anticipated decision of the Federal Supreme Court on the application of the principle of exhaustion of copyright in case of resale of ―used‖ software bought online. Online Citizen Portal (Bürgerportal) certified by the government for secure Internet transactions. For 2009 the German Ministry of Justice plans to strengthen the legal nature of the model instruction for the right of revocation by raising it to the level of formal law and to apply further changes of the law. Keyword Advertising - German Federal Supreme Court has asked European Court of Justice to give a Preliminarily Ruling concerning the Permissibility of Google AdWord Advertising- The German Federal Supreme Court has been appealed on questions of law in order to decide whether the use of trademark of a competitor as a keyword for Google AdWords will be considered a trademark infringement. For this decision it is essential whether the use of such keyword will be regarded as the use of a trademark ―as such‖ pursuant to former judgments of the European Court of Justice. Whereas some German courts dismissed actions for trademark infringement because it is clear to the user that Google AdWords are paid advertisement so that there is no likelihood of confusion, other German courts, in particular the District Court and Court of Appeal Braunschweig, affirmed a trademark infringement. The Federal Supreme Court has asked the European Court of Justice to give a Preliminarily Ruling concerning the permissibility of Google AdWord advertising.
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred To avoid these results and also legal actions of competitors, the entrepreneur has to provide proper written instructions of the right of revocation. For that reason, German law provided an official model instruction to inform and instruct consumers. However, this model instruction has been disputed and was overruled by some courts. For this reason in 2008 a new model instruction was published as an annex to the Civil Code Regulation on Duties to Inform (BGB-InformationspflichtenVerordnung). The new model instruction now follows the current legal situation. The advantage for the entrepreneur is that he can now avoid a legal action of competitors by using the exact wording of the template. Liability of Admin-C - the owner of a domain containing infringing content may be domiciled in a country where it may be difficult to assert or execute claims for infringement. The Higher Regional Court of Cologne decided that in specific circumstances also the Admin-C can be liable for the content hosted by him. The Admin-C can be held liable for the violation of rights from when the website is registered in the name of the Admin-C. In addition, to be held liable the Admin-C has to have knowledge of the infringement. However, the Admin-C is not obliged to control the content of every website he is hosting. This has the effect that the Admin-C can only be held liable for the content of a website hosted by him from when the Admin-C gets knowledge of the circumstances of the infringement. India Taxation: Amadeus Global Travel Distribution SA Vs. Deputy Commissioner of Income-tax - the Delhi bench of the ITAT (Income Tax Appellate Tribunal) held that a foreign company operating a computerised reservation system (though the server was located outside India) has a taxable presence in India. It was held that though the majority of the
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e-Commerce Legal Framework: Information Technology (Amendment) Bill With the passing of Information Technology Amend-ment Bill, 2008 by both the houses of the parliament, there shall be significant developments in the legal ecommerce field in 2009. Once the amendment bill has been notified
2008 COUNTRY Most significant legal e-commerce developments and that have occurred functions of the foreign company were performed outside India, the profits of the foreign company were attributable to use of the computerised reservation system in India. This has far reaching implications on the taxability of companies which carry on their business by using equipment in India. Mobile Payments in India Operating Guidelines for Banks the Reserve Bank of India, released Operating Guidelines for Banks for mobile payment transactions. It had earlier published its draft operating guidelines for public comments. Until now, this sector was completely unregulated and entities providing these services did so under the risk of challenge from banking regulators. E-Commerce Legal Framework: Information Technology (Amendment) Bill of 2008 to amend the existing Information Technology Act of 2000 this amends the words ―Digital Signatures‖ with the ―Electronic Signatures‖ under the act which has given recognition to all kind of electronic signatures including digital signatures. The definition of electronic signatures has been defined under section 2(a) of the Information Technology (Amendment) Bill, 2008 as authentication of any electronic record by subscriber by means of electronic technique as specified in the second schedule and includes digital signatures. The so-called ―technique‖ is yet to be specified by the government following the notification of the amended bill. However, section 3A states that the subscriber of the electronic signatures may authenticate any electronic record by such electronic signature or electronic authentication technique which: is considered reliable; and may be specified in the Second
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2009 Most significant legal e-commerce issues anticipated by the Government key issues will be: the Government is to notify the rules for the reliability of electronic signatures as required in the Bill; the provisions criminalising the receipt of information from any stolen computer, resource or communications device and empowering inspectors to undertake investigation of cyber crimes creates a necessity for inspectors to be trained; the Government will be empowered to designate ―digital evidence examiners‖ to assist the police in their investigation and handling of digital evidence; Central Government will be empowered to authorise any agency of the Government to monitor and collect traffic data or information through any computer resource for cyber security; electronic validation methods have been made technology neutral; the concept of data protection has been introduced for the first time in India; new changes have been suggested with respect to intermediary liability.
2008 COUNTRY Most significant legal e-commerce developments and that have occurred Schedule. The electronic signatures and or electronic authentication technique shall be considered reliable if: the signatures, creation data or the authentication data are, within the context in which they are used, linked to the signatory or, as the case may be, the authenticator and to any other person; the signatures creation data or the authentication data were, at the time of signing, under the control of the signatory or, as the case may be, the authenticator and of any other person; any alteration to the electronic signatures made after affixing such signatures is detectable; any alteration to the information made after its authenticator by electronic signature is detectable; and it fulfils such other conditions which may be prescribed.
2009 Most significant legal e-commerce issues anticipated
Section 6 A(1) of the amendment act states that the appropriate government may for efficient delivery of services to the public through electronic means authorize, by order, any service provider to set up, maintain and upgrade the computerized facilities and perform such other services as it may be specify, by notification in the official Gazette. The service provider so authorized includes any individual, private agency, private company, partnership firm, sole proprietor firm or any such other body or agency which has been granted permission by the appropriate government to offer services through electronic means in accordance with the policy governing such service sector. The government may also authorize any service provider authorized to collect, retain and appropriate such service charges, as may be
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred prescribed by the appropriate government for the purpose of providing such services, from the person availing such services, even, if there is no express provision in the act, rule, regulation or notification under which the service is provided to collect, retain and appropriate eservices charges by the service provider. The amendment to the Information Technology Act, 2000 also inserted the new section 10 (A) which states that where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by the means of an electronic record, as such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose. The amendment gave legal sanctity to the electronic contracts. However, to prove the contract to be valid, the parties have to lead evidence before the appropriate court/tribunal. Ireland Data Security Breaches – 2008 in Ireland was a year in which there were a number of significant data security breaches reported by both public sector and private sector bodies. In October 2008 the Minister for Justice, Equality and Law Reform announced the establishment of a working group to conduct a review of Irish data protection legislation in the context of data security breaches. Mandatory Data Retention – It was reported in the media in November 2008 that the Irish Garda (police) Commissioner had sent a letter to all Irish mobile broadband providers asking that they retain browsing information on their customers so that this could be used in criminal investigations. It is understood that the intention of the Garda Commissioner was to make the retention of internet data a requirement of all mobile broadband
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File Sharing – In January 2009 an action brought by four record companies (EMI Records (Ireland) Ltd; Sony BMG Music Entertainment (Ireland) Ltd; Universal Music (Ireland) Ltd and Warner Music (Ireland) Ltd) against Ireland‘s largest internet service provider, Eircom, in which they sought orders under the Copyright and Related Rights Act 2000 to restrain Eircom from infringing copyright in sound recordings that were owned by, or exclusively licensed to, the record companies by making available copies of those recordings to the public (through Eircom‘s internet service facilities) without their consent, was settled. The terms of the settlement agreement have not been made public. It is reported that Eircom has agreed to co-operate with the
2008 COUNTRY Most significant legal e-commerce developments and that have occurred providers. The request for real-time web-browsing information, in other words the content of the web address (URL) of every web page browsed by users of mobile hand sets, palm top devices or 3G modems, goes beyond the EU Data Retention Directive which was due to be implemented by 15 September 2007, but has still not been implemented. The Deputy Data Protection Commissioner expressed his concern over the Garda Commissioner‘s request. Screen Scraping – The Irish ―low fares‖ airline, Ryanair, initiated legal proceedings in several jurisdictions against a number of travel websites which it alleged were engaged in illegal ―screen scraping‖. The action by Ryanair led to an investigation by the Directorate-General for Energy and Transport of the European Commission to assess the compatibility of Ryanair‘s actions with EC Regulation 261/2004 on the rights of air passengers (this Regulation establishes community wide rules on compensation and assistance to passengers in the event that they are prevented from boarding aircraft, and in the event of flight cancellations or long flight delays). The Directorate – General ended its inquiry without taking any action against Ryanair – it had not received any actual complaints from passengers, but reiterated its warning to Ryanair that if a passenger was denied boarding, that the EC Regulation would apply, and that the passenger would be entitled to reimbursement and assistance. E-conveyancing – e- conveyancing envisages a paperless process for property transactions, and will place the entire conveyancing system in Ireland on an electronic platform. The process has involved a major review by the Law Reform Commission and a significant report carried out by the international consultants, Bearing Point. In addition, the legislation governing conveyancing in Ireland is currently
2009 Most significant legal e-commerce issues anticipated record industry to clamp down on illegal file sharing. Record companies will engage third parties to monitor on-line activity and provide details of ISPs linked to its service which appear to be engaged in illegal file sharing activity to Eircom. Eircom will then adopt a graduated response approach of contacting suspected infringers, presenting them with an opportunity to cease the illegal activity, and should they fail to do so, reducing and then ultimately terminating their service. The settlement has given rise to discontent among industry observers. The fact that the case was settled meant that we still do not have in Ireland any judicial indication as to whether an Irish court is likely to be sympathetic to ISPs in these circumstances, nor how the Irish courts will interpret the applicability of the ―mere conduit‖ defence in these circumstances. The record companies have issued letters to other Irish ISPs setting out the basis of their claim, and requesting that they also adopt a graduated response to this type of infringement. If this cooperation is not forthcoming, the record companies have indicated that legal proceedings will be instituted against them. Therefore it seems that the battle between the record industry and ISPs has some way to go yet. Court Rules and Electronic Discovery – New rules of court governing the procedures in the Irish High Court and Supreme Court making specific provision for the discovery of electronically stored information are expected. It is understood that where a party to a litigation action requires to discover or see the content of electronically stored information, he or she will have to indicate whether they require the information in searchable form or
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred under reform. The Land and Conveyancing Law Bill 2006 aims to modernise, streamline and improve the existing process for property transactions in preparation for a changeover to e-conveyancing. At the time of writing (January 2009), the Bill is at an advanced stage towards enactment by the Oireachtas (Irish Parliament). The introduction of econveyancing will greatly assist the efficient processing of commercial property transactions and act as an incentive for foreign companies establishing operations in Ireland. E-Stamping Initiative – 2008 - the Irish Revenue Commissioners, the governmental body responsible for the collection of taxes and duties in Ireland, is currently engaged in a major strategic development which will establish a self service e-stamping system in Ireland. The ―e-stamping‖ system will allow a full 24/7 self service online process whereby the user can file, pay and receive an instant stamp without the Revenue Commissioners requiring an examination of the deed in up to 90% of cases. The Revenue Commissioners hope to deliver the system in the second quarter of 2009. Consumer Protection Act 2007 While not specific to e-commerce, the impact of the Consumer Protection Act, 2007 (―Act‖), which implements the Unfair Commercial Practices Directive (―UCPD‖) in Ireland, began to be felt in 2008 as online business awareness of not engaging in misleading commercial practices (as defined by that legislation) increased. A notable development under the Act is its classification of computer software as ―goods‖. This matter had previously been unresolved for some time. This could potentially have a future effect in relation to the interpretation by the Irish courts of goods and services under other Irish legislation.
2009 Most significant legal e-commerce issues anticipated otherwise. If the material is required in searchable form, it must also be indicated whether the requestor needs inspection and searching facilities, or the use of any information or communications technologies system operated by the owner of the information. Data Security Breaches – In light of the establishment by the Minister for Justice, Equality and Law Reform of the working group to examine if changes in data protection law are necessary to deal with data breaches and the subsequent interim guidance issued by the Irish Data Protection Commissioner, it is anticipated that data security breaches will continue to dominate the legal scene in 2009. Draft Consumer Rights Directive 2008 - it is anticipated that the Directive, as proposed by the European Commission on 8 October 2008, will have significant benefits for retailers based in Ireland conducting sales to consumers in other Member States when implemented in Ireland. The Directive replaces four existing consumer protection directives (Directive on Sale of Consumer Goods and Guarantees, the Unfair Contract Terms Regulations, the Distance Selling Directive, and the Doorstep Selling Directive). The Directive is a ―maximum harmonisation‖ directive which means that Member States will not be able to introduce national laws diverging from the standards set out in the Directive (including more or less stringent provisions). On implementation of the Directive, there will be one set of terms required for sales across Member States, which will mean that the same contract can be used by a retailer in all Member States. This is expected to reduce costs for retailers and
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred
2009 Most significant legal e-commerce issues anticipated stimulate growth in cross-border and online trading within the single retail internal market. These changes may not, however, take place in 2009, as the Directive is still at the proposal stage, and has yet to be submitted to the European Parliament and Council for debate. It is thus difficult to predict when, and in what form, the proposal will become law. Cloud Computing - this is expected to be important in 2009 as customers and providers grapple with the legal and technical questions around providing online services from remote locations.
Italy
Online contracting and consumer protection issues – the ECJ decision of October 16th, 2008, delivered by the Fourth Chamber in case C-298/07 (Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eV vs. deutsche internet versicherung AG) will have significant impact throughout Europe and therefore also in Italy. E-commerce advertising issues the Institute of Advertising SelfRegulation – IAP (administering the local industry advertising selfregulation code) approved a revisited and updated version of its rules and re-branded them as the "Code of Marketing Communication" ("Codice della Comunicazione Commerciale"), with the patent aim of extending its focus from ―advertising‖ to ―marketing and commercial communication‖ and of properly considering the impact of the ―new media‖ on the specific business sector.
Consumer protection issues - in order to comply with the key principles and the exact interpretation indicated by case C298/07 with respect to correct and timely communication requirements (as laid down in Section 5 (1) (c) of the EUDirective 2000/31/EC) to be observed in the context of B-C relations, the Italian provisions implementing the Directive (Legislative Decree no. 70 of April 9th, 2003) may need some integrating specifications. Section (7) (1) (c) of it currently states that providers are held to indicate proper contact details necessary to grant ―rapid‖ contact ―through direct and efficient communications means (including an e-mail address)‖. The domestic legislator may feel it proper to offer additional indications on: a time frame suitable to meet the requirement of ―rapid‖ communication (in the case dealt with by the ECJ, a reaction time of between 30 and 60 minutes was apparently considered as acceptable); and
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2009 Most significant legal e-commerce issues anticipated ―communication‖ means to grant ―direct and effective‖ contact both by electronic communication as well as by alternative means (for exceptional circumstances, when online access is not available).
E-commerce advertising issues implementation of the Audiovisual Media Services Directive (Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities) is due, this will involve relevant effects for online advertising. Online and electronic contracting - the backbone of Italy's economic structure is represented by small and medium enterprises (SMEs). While international comparative research shows that Italy is currently behind other European countries in terms of internet access/use, these studies also reveal a steadily increasing trend, which forecasts that the country during the years to come will be able to live up to the (at least) average figures which are common on the European level. In addition, there are geographic areas where infrastructures for online business are still in the process of being properly developed and will, once completed, offer appealing business opportunities. So, in the future an increasing number of players may decide to change their business model from a mere ―web presence‖ to an ―active online role‖. Unfair commercial practices - a projected law n° 5881 aims to
Luxembourg
Electronic signatures - a new law of 20 May 2008 has created a national
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred regulatory body. The ILNAS is in charge, inter alia, of: regulatory normalisation activities; accreditation and surveillance of ecertificate delivering entities; product security surveillance; and electronic authorisation management.
2009 Most significant legal e-commerce issues anticipated modify the current regulations notably on : deceitful and advertising ; comparative
consumer distant contracting; and provision of distant financial services.
Unified administrative platform the Luxembourg government has launched, on 17 November 2008, a new internet portal (www.guichet.lu), that aims to offer an electronic access to its services- Security of information and user identification is guaranteed through the use of electronic signatures. Other more complex administrative tasks and services, such as online income tax declaration (to be launched in 2009) are planned to enrich this first version of this platform.
The project also modifies the definitions of "consumer" and "professional". The project was first presented in parliament on 30 December 2008 and a second discussion was engaged on 12 February 2009. E-filing with the trade and companies register reform - a projected law n°5716 modifying the law of 10 August 1915 on companies and associations is still being discussed in parliament. The modifying law aims to: allow e-filing of publications with the trade and companies registry in implantation of the EU directive 68/151/CEE; provide for the e-storing of all documents filed with the registry from 1 January 2007; provide for on demand estoring of documents filed with the registry from 1 January 1997; allow users of public services to obtain a copy of electronically stored documents; and provide for the certification of e-copies through means of an advanced electronic signature as provided for by the EU directive 1999/903/CE.
Interception of Electronic Communications: Regulation 08/134/ILR of 1 December 2008 on technical specifications for the interception of electronic communications the national regulatory authority on telecommunications (ILR) has provided directives for service providers to adapt their infrastructure in order to allow the judicial authority to monitor upon specific demand the electronic communications. Service providers must provide access and support to authorities regarding the electronic communications including in cases where these communications are encrypted. Service providers must keep a record of activities in connection with interception measures and ensure of their confidentiality. Services providers will have 12 months from this regulation to ensure that their infrastructure is compliant with its provisions body (ILNAS).
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred e-Commerce Legal Framework: Law 51 - this regulates e-documents, e-signatures, and technological storage of documents‘ services, esignature certificates and was enacted in July 2008. It derogated the previous e-Commerce Law 43, July 2001 and modified the Trade Code, Civil Code and Judiciary Code. Law 51 made substantial changes compared to the previous law, these changes are detailed as follows: Registry of Providers of commercial services through the internet. Domestic or foreign companies that provide commercial services through the Internet from or to Panama may register free before the Ecommerce General Office (in Spanish DGCE). This voluntary registry does not allow companies to avoid their compulsory compliance of minimum requirements determined by the technical regulations that DGCE shall issue in order to grant integrity and juridical security over transactions and commercial activities done from and to the country through the internet. Registry of Providers of Technological Storage of Documents. Any individual or company, domestic or foreign who wishes to provide the technological storage of documents in the Republic of Panama must register before the DGCE and will be subject to dispositions and regulations issued by this entity based in the contents of Law 51, 2008 and other regulations. Behaviour Regulations. It is with the aim of providing the users and consumers a mechanism to raise their trust in e-commerce and the reliance of the citizenship in the use of e-documents and esignatures as well as transactions through the internet, the DGCE together with public and private
2009 Most significant legal e-commerce issues anticipated Law 51 - the regulatory aspects of Law 51, 2008, regarding the following aspects will cease: E-Signature Certificates Services; Technological Storage of Documents; and E- Commerce
Panama
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred entities will create a system of recognition based upon the compliance of Behaviour Regulations that will determine higher technical standards and procedures to guarantee privacy and security of transactions done through commercial web sites. Territory Criteria. To the extent of this law, it is assumed that a company that sells goods or services through the internet is established in the territory of the Republic of Panama when its residence or enterprise address is on the domestic territory and maintains centralized the administrative management, its business, and/or when the company or any of its branches sells goods or services in the domestic territory, had obtained a commercial or industry license or had obtained the Operations Permit from the Industry and Commerce Ministry.
2009 Most significant legal e-commerce issues anticipated
Poland
E-Commerce Legal Framework: Amendments to Act on Provision of e-Services - The amendments to the act which implemented the EU eCommerce Directive were enacted on November 7, 2008, and relate to, inter alia, cooperation between the administrative units of the UE/EFTA member states concerning the certain protection and information rights of the customers and service providers, possible limitations of freedom of providing of e-services and rules concerning the law applicable to the services provided by the entities having their seat in the territory of UE/EFTA. The amendments also contain some changes to the rules of liability of the internet service providers.
Spam One of the most important changes planned by the Ministry is a whole new chapter concerning customers‘ protection against SPAM. The proposed amendments not only provide the definition of SPAM (which would be much broader then existing definition of the unsolicited or undesired electronic messages) but also formation of a new antiSPAM administrative body subordinated to the Office of Electronic Communications.
Spain
Law 56/2007*,relating to Information Society Implementation Measures - the obligation for companies belonging to certain sectors (telecommunications, facilities, travel agencies, banks, insurance, etc.) of implementing
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Electronic integration of the public sector – the first steps towards the full electronic integration of the public sector will be taken during 2009. This will include the implementation of electronic registers, the
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred electronic access in order to offer consumers the option of developing any contractual procedures via such access (e.g. entering into an agreement, terminating an agreement, gaining access to data and information, sending a complaint, requesting information, exercising rights etc). This legislation which modifies Spanish legislation dealing with e-commerce and electronic signatures is primarily aimed at revising and eliminating excessive and unnecessary obligations that existed under the previous law, as well as loosening obligations dealing with commercial communications and e-commerce, and in order to facilitate the use of mobile devices. Law 11/2007*, relating to the electronic access to Public Services by citizens - this regulates citizens´ rights to enter into relations electronically with public bodies. Royal Decree 231/2008, relating to the Consumer Arbitration System this regulation includes the arbitration procedure to be developed electronically. Law 30/2007*, relating to Public Sector Contracts - this regulates several concerns relating to the use of Information Technology regarding contractual relationships with Public Bodies. Regulation of Premium SMS and MMS services (OM ITC/308/2008) this regulation includes some consumer rights related to the previous information about the services, the costs, number of messages to be sent, as well as the procedure to terminate the services. Electronic billing with Public Bodies - is intended to implement the obligation of using electronic billing when entering into contracts with Public Bodies. * Although these laws were passed in 2007, the Effective Date occurred during the year 2008. Jurisdiction to sue for breach of
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2009 Most significant legal e-commerce issues anticipated development of electronic communications and procedures and the launch of official electronic publications. Electronic Signatures - the definitive take-off of the use of electronic signatures, with the corresponding development of electronic billing and electronic ID. Electronic Access - The private sector (private companies) will need to implement electronic access in order to offer consumers the option of developing contractual procedures via such channels. Screen Scraping: Ryanair cases – In 2008 Ryanair brought proceedings against several online travel agencies that, without Ryanair‘s consent, take information about Ryanair flights, such as flight details and price, from Ryanair‘s website, and provide the information to users of the travel agencies‘ websites when they initiate a flight search on those websites. Ryanair‘s claims were based on: a contractual breach of its website‘s terms of use, infringement of its copyright and sui generis rights over its database and associated software, and unfair competition. In January 2009, a decision was issued in one of these cases by a commercial court (first instance) of Barcelona, and the decisions in the other proceedings will be issued in 2009, with any appeals to be lodged in 2009 as well. The only decision to date held that the travel agency is not bound by the website‘s terms of use and flight purchase conditions because the airline‘s customer is the end user, not the travel agency. The court also held that Spanish law does not grant website owners the right to prevent screen scraping, and that the travel agencies‘ behaviour cannot be deemed to be unfair competition. Finally, the court rejected the claim that the screen
2008 COUNTRY Most significant legal e-commerce developments and that have occurred online consumer agreement - a case highlighted the different criteria adopted by two commercial courts (first instance) in the Basque Country, Spain, one sitting in San Sebastian and the other sitting in Bilbao. This was in connection with a claim for breach of contract filed by a consumer. The consumer had purchased a flight over the internet and, owing to a dispute with the airline, the consumer filed a claim with the courts of his residence, i.e. San Sebastian. The airline does not have an office in San Sebastian, but in Bilbao, so the commercial court of San Sebastian held it did not have jurisdiction to deal with this claim, and submitted the case to the commercial court of Bilbao. The commercial court of Bilbao issued a decision in September 2008 in which it also held that it did not have jurisdiction, hence ending a former practice of admitting claims submitted to it by the commercial court of San Sebastian in order to avoid harming the consumer‘s interests. In this case, however, the commercial court of Bilbao held that, according to article 29 of the Spanish E-commerce Act, online agreements entered into with consumers are deemed to be concluded at the consumer's habitual place of residence. Consequently, the commercial court of Bilbao understands that, by having a website that is freely accessible all over the world via the internet, the airline is opening a "universal establishment", which, in the case at hand, includes the possibility of being sued in San Sebastian. It now lies with the High Court of the Basque Country to determine which of the two commercial courts is competent. The issue of liability of internet service providers was considered in a number of cases. Data Security: Regulation on Electronical Communication Security - this regulation sets forth the main threats in respect of electronic communications security
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2009 Most significant legal e-commerce issues anticipated scraping activities performed by the travel agency infringe any sui generis right of Ryanair over the flight details database, because substantial investment was not required to create it (as the database is a direct result of Ryanair‘s airline business, and was not created as a result of a separate, specific effort), and the travel agency qualifies as a ―lawful user‖ for the purposes of copyright law protecting databases. No e-commerce new legal developments or legislation have been announced for 2009 by the Spanish Government, and none are in preparation by the Parliament. Notwithstanding the financial crisis, the Spanish Government is planning on boosting the information society. The Ministry of Industry has extended the Progress Plan originally for the period 2005 to 2009 up until 2012, with a focus on broadband extension; penetration of PCs; internet and mobile security of transactions on the internet; consumer protection; electronic ID; e-invoicing and innovation in the ICT sector and education on line.
Turkey
Ban on use of certain computer game in public places - Play and use of a worldwide famous computer game was banned by the Turkish Ministry of Internal
2008 COUNTRY Most significant legal e-commerce developments and that have occurred and the measures to be taken in order to avoid such threats as well as the sanctions to be imposed on those who are in breach. The liability of the enterprises and managers has been regulated in the regulation in respect of physical area, personnel, data and hardware/software security. The enactment of the regulation was a significant development in order to sustain the data protection and electronic communication in Turkey.
2009 Most significant legal e-commerce issues anticipated Affairs in places such as in internet cafes etc. due to the fact that the referred online game is not subject to any taxation within the territory of Turkey. This drew the attention of the Ministry of Finance and triggered it to take steps on the issue. With the support of the Turkish Telecommunications Institution, the Ministry of Finance is examining whether taxes can be generated from these online games. Should the Ministry of Finance decide in favour of legal regulation, it would be of benefit to have a regulation in the area in order to settle any future disputes. Draft Commercial Code - this is expected to be enacted in 2009. The new law brings new rules for the promotional sales and advertisements in respect of unfair commercial practices which are in line with the EU Unfair Commercial Practices Directive. It envisages that every company shall have a domain name registered and owned by the company allow them to conduct their activities online as well. Draft Bill of Personal Data Protection - this Draft Bill sets forth the protection of personal data as a fundamental right and freedom of an individual. It also regulates freedom of information, the principles of personal data transfer and data sharing, both within and outside the country, the rights of an individual on correction, deletion or cancellation of personal data registered on a certain data base of a private or public institution in case of any inaccuracy or inconvenience and also the liabilities of real persons, private and public legal bodies for the personal data protection. The Draft Bill also envisages the incorporation of a special data protection authority called the ―Personal Data Protection Institution‖. The Institution will be the authorized authority for
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred
2009 Most significant legal e-commerce issues anticipated personal data protection in Turkey. Once the Personal Data Protection Law comes into effect, it will be very useful for consumers who enter into e-commerce transactions and submit their personal data online.
United Kingdom
Consumer Protection from Unfair Trading Regulations 2008 - The regulations, which came into force on 26 May 2008, implement the EU Unfair Commercial Practices Directive and set out the prohibition on unfair commercial practices contravening the requirements concerning professional diligence, misleading actions, misleading omissions, aggressive commercial practices and other specified commercial practices. The regulations also impose a prohibition on the promotion of unfair commercial practices by persons responsible for codes of conduct for traders. With limited exceptions, breaches of the prohibition on unfair commercial practices will be criminal offences. There are, however, defences of due diligence and innocent publication of advertisements. While not specific to e-commerce, the regulations apply to online activity as well as offline. Child Internet Safety - Publication in April 2008 of the Byron Review: children, the internet and online games. Proposed creation of UK Council for Child Internet Safety (launched September 2008); particular focus on online games (e.g. age verification). Also the July 2008 publication of the House of Commons Culture Media and Sport Select Committee report on Harmful Content on the internet and in Video Games and the April 2008 "Good practice guidance for the providers of social networking and other user interactive services" (Home Office Task Force). Office of Fair Trading retail Web sweep - this analysed compliance of a sample of UK sites with online selling regulations: 14% failed to provide a physical
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Rome I and Rome II Regulations on the Law Applicable to Contractual and NonContractual Obligations respectively - The Rome II Regulation came into effect on 11 January 2009 and for the first time harmonises conflict of laws rules for non-contractual liability (other than defamation, privacy and other personality rights) throughout Europe. The Rome I Regulation will come into effect on 17 December 2009 and will supersede the existing 1980 Rome Convention. The provisions on consumer contracts differ significantly from the existing Rome Convention. Both instruments will be significant for online activities due to their inherently cross-border nature. Children and age verification – These will continue to be significant policy issues. Audiovisual Media Services Directive – This is due to be implemented by 19 December 2009. Targeted advertising – the continued tension between businesses‘ desire to introduce this and the difficulties in reconciling it with compliance issues, particularly on data protection was the major issue last year and it will roll over to 2009. Having conducted a trial in 2008 of the Phorm software, BT is now rolling out its 'Webwise' system using targeted advertising on a full commercial basis. However, the legality of such products is not entirely settled. The EU Commission has been less keen to bless such targeted
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred address 15% failed to provide information about 7 day cooling off period 31% appeared not to comply with the requirement to refund the full cost of the goods (of these 56% excluded the cost of original delivery from refunds) 40% did not indicate that compulsory additional charges would be added at the ‗checkout‘ stage of the transaction to the price first shown Only 17% of sites fully compliant.
2009 Most significant legal e-commerce issues anticipated advertising software and is threatening to take action against the UK Government for a failure to rule such software unlawful and take action in relation to the trials of the Phorm software (which include BT). Encouraging growth of digital commerce - the UK Government recently published its 'Digital Britain' Report which sets out the blueprint for growing the digital economy in the UK for the future. The Report, published earlier this month, is only a interim report and a final report is due later in 2009. The implications of the wideranging Report will be felt across the e-commerce sector. Amongst the proposals are to invest heavily in the digital infrastructure to make broadband universally accessible. Consumer protections laws The UK Government is currently reviewing with the intention of producing a more simplified and centralised framework of laws rather than the patchwork of protection currently in place. Although this is wider than simply e-commerce, protection of consumers online will play a major part of this review. The Government’s response to the consultation on the proposed EU Consumer Directive - in particular as regards the areas where the Directive as it stands would weaken the protection of consumers. For example, under current plans the Directive would remove the current automatic entitlement in the UK to a refund where goods have minor defects. The Online Purchasing of Goods and Services (Age Verification) Bill - this would make it a requirement for online sellers to take ‗reasonable steps‘ to determine that a purchaser meets the relevant age restriction for the goods purchased, has now
Website contact details: The European Court of Justice in case C298/07 issued a judgment on the interpretation of Article 5(1)(c) of the Electronic Commerce Directive (2000/31/EC) concerning the information that must be provided by a service provider to recipients of the service before the conclusion of the contract. The court held that in addition to the electronic mail address, other information which allows the service provider to be contacted rapidly and communicated with in a direct and effective manner must be provided. That information does not necessarily have to be a telephone number, and may be in the form of an electronic inquiry template through which the recipients of the service can contact the service provider via the internet, and to whom the service provider replies by electronic mail. However, in situations where a recipient of the service after contacting the service provider electronically finds himself without access to the electronic network, they may request the service provider to provide access to another nonelectronic means of communication. Behavioural monitoring programmes - there has been controversy surrounding the increasingly prevalent use of these programmes to better target online advertising. With advertising revenues falling, the ability to target advertising and so hopefully
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred generate a better return on investment is becoming increasingly important. In the UK we have seen the launch of such products but it has led to some controversy and some difficult questions for the regulators. Software such as that provided by Phorm enable companies to track a user's browsing habits and provide advertising which fits with that profile. Phorm argues that its software does not process personal data because it only tracks "anonymous" IP addresses and does not have any other details of the users. A number of ISPs, such as BT and Virgin Media, carried out a trial of this software last year. It caused a significant amount of privacy concerns. The matter was considered by both the Information Commissioner's Office in the UK (for Data Protection compliance) and by the Home Office (for compliance with the Regulation of Investigatory Powers Act for communications interception). Both ultimately ruled that the use of such software was legal, although the ICO did suggest that the ISPs should seek "opt in" rather than "opt out" consent. However, the EU Commission has also been reviewing Phorm and has been less keen to endorse its legality. Backlash against Phorm and subsequent disagreement between EU and the UK. It emerged that in 2006 and 2007 the controversial Phorm targeted adware system (which works with ISPs to gauge the online habits of their customers) had apparently been tested on thousands of BT customers without their consent, and the EU had repeatedly asked the UK to explain this. The UK has missed deadlines to respond, and only provided an opinion that the Phorm system is legal on an opt-out basis going forward. Keyword Advertising Developments (Yahoo! Case in UK and the Google Change of Policy in UK/Ireland) – The UK High Court dismissed a legal action brought against Yahoo! UK and its sister company Overture, by the owner of a
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2009 Most significant legal e-commerce issues anticipated received its second reading. Whether or not it becomes law (as a Private Members‘ Bill it is unlikely to be passed without government support) it will draw attention to the current patchy enforcement record in this area. The new gTLD regime brought in by ICANN. Digital Britain Report – The UK Department for Business, Enterprise and Regulatory Reform and the Department for Culture Media and Sport Interim digital Britain Report, and in particular, the implications for internet service providers and consumer organisations, and the potential creation of a Rights Agency to seek to agree how to provide incentives for the legal use of copyright material, and to seek to prevent unlawful use by consumers and enable technical copyright – support solutions. Phorm – There will be much interest in what further action will be taken by the European Commission if it continues to believe that there has been a breach of data protection rules by the UK, and the fact that the Crown Prosecution Service has been reported as gathering evidence on the BT trials in preparation for a possible prosecution under the Anti-Wire Tapping Rules of the Regulation of Investigatory Powers Act.
2008 COUNTRY Most significant legal e-commerce developments and that have occurred London based catering business, and in which the plaintiff claimed that his trade marks were being infringed. The plaintiff claimed that browsers who entered one of the plaintiff‘s trademarks (―Mr Spicy‖) as search terms activated sponsored links for Sainsbury‘s Supermarket and the price comparison site, PriceGrabber.co.uk. This was followed then by the Google change of policy in UK/Ireland in May 2008 when it stopped allowing owners of trade marks held in the UK or Ireland to prevent sponsorship of their marks by a third party, thereby bringing Google‘s policy for trade marks in the UK and Ireland in line with its policy for trade marks held in the US and Canada. Nominet’s Changes to its Dispute Resolution Service Policy – On 29 July 2008 Nominet made changes to the Nominet Dispute Resolutions Service Policy and Procedure. In addition to giving a complainant the option of obtaining a summary decision from an Expert in cases where there is no response at a cost of Stg£200 + VAT, they have also clarified the policy to recognise that rights may exist in descriptive terms that have acquired a secondary meaning; to confirm that certain activities are not in themselves an abusive registration; that the reply stage is purely an opportunity to respond to new matters raised in the respondent‘s response, as well as other clarifications. World financial crisis – the worldwide recession has halted or severely disrupted countless transactions, changed operating norms for virtually every company and resulted in increased attention to breach of contract, business tort and other aspects relating to both B-B and B-C relationships. Weakened state of patent protection, particularly for business methods – court decisions in the United States have removed
2009 Most significant legal e-commerce issues anticipated
USA
Revisiting e-commerce taxation – in a down economy, pressure will no doubt be brought to seek new revenue sources and ecommerce taxation will be a high profile target. New platforms for e-commerce – a number of social networking, music/ video and personal information management platforms are adding e-commerce capabilities and these likely will cause a shift in the legal doctrines
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred significant areas of innovation from the realm of patentable subject matter, the standard of what is considered ―obvious‖ has increased significantly in the wake of a 2007 Supreme Court ruling, and the overburdened U.S. Patent and Trademark Office has become more antagonistic in examining patent applications, both during original prosecution and in ―re-examination‖ proceedings. Recording industry – the Recording Industry Association of America discarded its longstanding policy of mass direct suits against end-users for unauthorized downloading and undertook a policy of working with ISPs to stop the worst offenders; it also allowed popular commercial digital music sites to provide music files without digital rights management limitations. “Software as a Service” Modelsoftware as a Service (SAAS) continued to be an important licensing/delivery model in ecommerce in 2008. Although this model of providing software applications to users as a service over a network has been on the radar of those practicing in this area for a while now, it continues to develop and expand as more and more users become familiar with it and adopt it in favour of the licensing/delivery models of legacy applications. Interesting issues often arise in this area for vendors—in the terms of evolving business standards and the services being provided—and consumers—for example where a large enterprise contemplates migrating many users across a number of business units from a legacy product to a SaaS product. Data Breach Prevention - a number of states in the United States have recently passed or are considering legislation setting specific standards for the handling of personal information and other consumer data. In Massachusetts, a new regulation passed in 2008 and effective January
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2009 Most significant legal e-commerce issues anticipated that relate to their use. Additional government oversight and involvement – The Obama administration is moving toward adding a national Chief Technology Officer. All indications are that the public sector will figure more prominently in commercial activity than it has in recent generations, the financial crisis is being blamed in large part on too little public oversight of commerce and finance, and the clean/green aspects of ecommerce are being increasingly recognized. Network Neutrality - this was an important and controversial issue in the United States in 2008 and it will likely continue to be in 2009. President Obama has indicated that a top priority on his administration‘s technology agenda is to "support the principle of network neutrality to preserve the benefits of open competition on the internet." (http://www.whitehouse.gov/agend a/technology/). The Federal Communications Commission ("FCC") has also stated as a matter of policy that consumers be entitled to: (1) access the lawful internet content of their choice; (2) run applications and use services of their choice, subject to the needs of law enforcement; (3) connect their choice of legal devices that do not harm the network; and (4) have the benefit of competition between and among network providers, application/service providers, and content providers. Policy initiatives in the area of network neutrality will surely influence other developments in ecommerce in 2009 as this issue impacts how nearly all Americans gain access to and interact over the internet. Wider Access to Broadband/ Next-Generation Broadband the Obama administration intends
2008 COUNTRY Most significant legal e-commerce developments and that have occurred 1, 2009 requires all persons or entities storing or maintaining personal information to (1) develop and implement a comprehensive written information security program and (2) meet specific information security requirements. The new rules are more specific than other states‘ data security laws, and compliance will likely require change for many businesses and organizations. Among other requirements, those subject to these regulations must encrypt personal information during transmission across public networks and when stored on laptops or other personal devices. Likewise, a new Nevada regulation prohibits businesses from electronically transferring unencrypted personal customer information outside a company‘s secure system. Further, states such as Michigan and Washington have introduced pending bills requiring encryption of such data while it is stored. These laws signal a trend that states are raising the standards for data protection and in ecommerce transactions. FTC Consent Decree Outlines Information Security Minimums the FTC issued a Consent Decree with online retailer Life is Good for failing to take ―reasonable and appropriate security‖ measures to protect information. In relevant part, Life is Good stored consumer information in clear, readable text files; stored all credit card information on its network indefinitely; failed to address adequately known or foreseeable attacks; and did not use readily available security measures to monitor and control connections to the internet and detect unauthorized access to consumer information. The Consent Decree, which requires Life is Good to develop and maintain a security program that will identify internal and external risks to information security, to establish safeguards, and to ensure retention of service providers capable of adequately protecting consumer information, was issued in response
2009 Most significant legal e-commerce issues anticipated to ―work towards true broadband in every community in America through a combination of reform of the Universal Service Fund, better use of the nation's wireless spectrum, promotion of nextgeneration facilities, technologies and applications, and new tax and loan incentives. America should lead the world in broadband penetration and internet access.‖ (http://www.whitehouse.gov/agend a/technology/). This policy has received immediate attention in the stimulus plan passed by the U.S. House of Representative and Senate in early February 2009 with over $7 billion committed to broadband infrastructure projects in underserved areas of the United States. HITECH Act - the American Recovery and Reinvestment Act of 2009 contains a set of provisions known as the Health Information Technology for Economic and Clinical Health Act (―HITECH Act‖) that advance the use of technology in healthcare, principally by encouraging hospitals and physicians to adopt an electronic health record (―EHR‖) system before the end of 2015 and providing funding for, among other things, an EHR infrastructure and technologies to allow for the electronic flow of information, the support of regional and sub-national efforts toward health information exchange, the promotion of interoperable clinical data repositories performing comparative effectiveness research on how electronic data use impacts healthcare treatments and strategies, and the integration of health IT education in the training of healthcare professionals. The HITECH Act also establishes new responsibilities for the U.S. Department of Health and Human Services (―HHS‖), through the Office of the National Coordinator for Health Information Technology
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2008 COUNTRY Most significant legal e-commerce developments and that have occurred to a hacker accessing the Life is Good network and stealing credit card information from thousands of consumers. The Consent Decree serves as a roadmap for how companies should develop and implement policies regarding the handling of sensitive consumer information when they make representations that they are protecting the confidentiality of consumer information. Consumer Protection Developments - Continuing debate over extent of online behavioural marketing. Ongoing debate over revisions to state consumer fraud statutes to cover e-commerce (particularly collection of buyer data). Debate over scope of website terms – per Facebook episode. Debate over proposed TLD expansion of domain names – most state attorneys general oppose in that will provide greater threat of abuse Taxation of eCommerceCongressional debate over repeal/ revision of tax exemptions for ecommerce. Taxation is particularly sensitive at local levels where governments are running deficits HITECH Act (technically 2009, but was on table in 2008) - Portions incentivizing digitization of medical records for purpose of fostering interoperability (the ―anywhere, anytime‖ approach). Will give patients (i.e., consumers) more control over their health care decisions. Consumer Protection Developments: The main issues here were the continuing debate over the extent of online behavioural marketing; the ongoing debate over revisions to state consumer fraud statutes to cover ecommerce (particularly collection of buyer data); the debate over the scope of website terms (Facebook) and the debate over the proposed TLD expansion of domain names. Taxation: The main issues here were the congressional debate over the repeal/revision of tax exemptions
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2009 Most significant legal e-commerce issues anticipated (the ―National Coordinator‖), to develop and adopt policies and standards, including new privacy standards, for EHRs and other forms of health information technology. The HITECH Act provides monetary incentives in the form of Medicare incentive payments and additional reimbursements to physicians and hospitals who choose to become ―meaningful EHR users‖ in the next few years and to those physicians and hospitals who begin to provide services in areas designated ―health professional shortage areas.‖ Beyond the impact on healthcare professionals, the HITECH Act will affect healthcare consumers by substantially modifying existing HIPAA privacy and security requirements to provide additional privacy and security rights and requirements. In view of these new privacy and security requirements, current business associate agreements between covered entities and business associates will need to be updated. Much work will need to be done in 2009 to interpret the extent of the changes required by the HITECH Act, review existing business associate agreements, and make appropriate changes before the February 17, 2010 effective date of the Act. Taxation of e-Commerce
2008 COUNTRY Most significant legal e-commerce developments and that have occurred for e-commerce.
2009 Most significant legal e-commerce issues anticipated
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