ECommerce

Question 1

Web-wrap agreements

Answer 1

• A web site document setting out contractual terms, the acceptance of which is indicated by “clicking” on the appropriate icon
• Terms of the agreement must be clear to any potential customer
• Internet contract = SFC – need for onerous terms to be brought to the attention of the customer

Question 2

Things that Matter in Online Transactions

Answer 2

• Jurisdiction
• Timing of acceptance – where does acceptance occur?
• International transactions
• Proper law of the contract
• Need to address issues in the web-wrap agreement

Question 3

Formal Requirements and Problems

Answer 3

Formal Requirements:

• Statute of Frauds still applies
  
  • Electronic signatures are valid
  • Electronic document = “writing”
  Problems arising:
  • Intention to be bound by the contract
  • Validity of “clicking” icon to complete deal – is this a signature?

Question 4

Problems with eCommerce

Answer 4

1. Computer Malfunction - Negligence
2. Defamation
   
   • To “publish” on the internet
   • Locating parties
3. Intellectual Property Infringements
   
   • Copyright
   • Trade-mark

Question 5

Intellectual Property Rights (Copyright)

Answer 5

• Abstract property rights owned by persons who have the sole right to license the use of the property

Copyright

- Right to “copy” a literary or artistic work (including computer programs)
- Lasts for the life of the author + 50 years
- Publishing work on the internet does not make the work “public domain”
- “Fair Dealing” – reproduction for the purpose of criticism or private study – need to cite authorize

Question 6

Trademark

Answer 6

• A word (or words), a design, or a combination of these, used to identify the goods or services of one person or organization
• Registration of a trade-mark – good for 15 years and renewable every 15 years
• “Passing off” on the internet becomes an issue (infringement is using a trade mark)
• Location of business is less of a factor – on the internet, a business is everywhere
• Domain names (.com) – Cybersquatting

Question 7

Cybersquatting

Answer 7

Cybersquatting: where a person registers a domain name that includes a well-known trademark or brand name, and then offers to sell the domain name to the owner of the mark for a high price. If sued, the infringer will have to relinquish the domain name and to pay court costs
- usually just ends with the person buying it off of them because it is cheaper

Question 8

Jurisdiction Issues

Answer 8

Need for the internet retailer to comply with the laws in multiple jurisdictions

• Courts will set jurisdiction where the defendant resides, or where there is a “real and substantial connection” to the jurisdiction
  
  • On the internet, where is the defendant located?
  • How do you locate the assets of the defendant?
  • How do you enforce a judgment against a defendant?
  • Defamation – sue in the place where the tort was committed; what geographic location would that be in the case of defamation published on the internet

Question 9

Regulation

Answer 9

• Canadian Radio-television and Telecommunications Commission
  
  • Power to regulate internet
  • In 1999, opted not to regulate internet – promotion of competition
  • Periodically reviews policies regarding the internet to be sure that objectives are being met

Question 10

Privacy

Answer 10

• Anti-Spam Legislation: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commissions Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act