New Zealand, the legal requirements of publishing were very clear and we managers knew where we stood. Today in
the high tech, ubiquitous world of the information super highway things are not so clear and there are so many new
issues to be dealt with that it is very difficult to keep up with what is lawful and what is not.
Existing law is now being adapted to cater to the new environment, and as legal precedents become more common
the fuzzy lines should become clearer, though issues like jurisdiction, enforcement and liability are still areas to be
clearly defined and will prove challenging for lawmakers.
Cybersquatting
Web pages pose many legal issues, which really cut across all areas of
e-commerce, but the main iss\ues are the
protection of domain names and
trademarks, linking and tagging.
Tagging is the practice of using a competitors trademark names in the
meta tagging of their sites, thus piggy
backing on search engines.
Illegal registering of domain names or cybersquatting for financial
gain is a major problem for corporations,
businesses and personalities.
Internationally, unless a business is operating under that name in a
country, anyone
can register the name under a .com registration and use
it as a URL, unless it is a registered trade name where
special
conditions apply.
However, in Australia under .com.au registration, a relationship to the
company named must be shown on
registration and even then, the
registration can be overturned if a stronger case can be put.(Binning 1999)
In most cases, traditional laws of fair practice and copyright cover
infringements, though some new and
specifically cyberspace issues have
to be addressed in new legislation.
In the United States the Anticybersquatting Infringement Act of 1999
and the Anticybersquatting Consumer
Protection Act (ACPA) targets
unique cyberspace infringements of trademark law and safeguards
business
names and trademarks from cybersquatting. It is interesting to
note that the ACPA only legislates for issues
within USA and makes no
attempt to address issues of jurisdiction. (Kilian, 2000)
Copyright
In general, digital copyright issues are the same as with paper based
systems, using any material produced
by another individual or group
without permission or credit is illegal under the Copyright Act and
international copyright conventions. The problem with the net is that
it is so easy to copy and use images
or text and it is often impossible
to trace where the material originated.
Linking to sites is becoming another area legal of concern. If a
webpage has links to another site there could
be infringement of
copyright or intellectual property, especially if the site is
constructed with frames.
Links within frames display the new page
within the framework of the original site and give the impression
that
the material is part of that site rather than that of the legal owner.
Cases such as the Shetland News injunction illustrate this issue. Where
one newspaper linked to the site of a
rival newspaper the Shetland
Times – the implication being that the news shown was from the Shetland
News.
It is interesting that within the paper-based system no editor
would risk such a breach of copyright.
The uncertainty of this and other cases like it has resulted in many
sites creating secondary link pages notifying
the user that they are
now leaving the site to access another and issuing a disclaimer
regarding content.
Other link related issues are that links within frames do not allow the
browser to bookmark the secondary site
and if a link is to a page deep
within a site the browser does not pass through the sites home page,
which
potentially deprives the site owner of likely revenue.
Internationally existing Copyright Conventions such as the Digital
Millennium Copyright Act (DMCA) in the USA,
and in Australia initially
the Trades Practices Act, and the existing Copyright Act covers issues
of this nature.
Recently the Copyright Amendment (Digital Agenda) Act
2000 has attempted to address issues more relevant
to digital media.
Contracts
As more transactions are processed over the web, it has become more
important to clarify the legality of digital
contracts. Legislation
such as the Consumer Protection (Distance Selling) Regulations 2000
applies to transaction
made by parties who have not had a physical
meeting and new rules apply, including “click through” terms and
conditions such as we are used to in software installation programs,
and cooling off periods which allow clients
to cancel orders and recoup
any amounts paid.
In the USA, The Uniform Computer Information Transactions Act (UCITA)
has been proposed to regulate
transactions through digital media, but
to date there has been no consensus on its contents. (American
Library
Association, 2001).
In 2000, President Clinton introduced the Electronic Signatures in
Global and National Commerce Act, which
promotes the use of digital
signatures and electronic document for use in government, national and
international
transactions. The act also allows for the legal use of
electronic records of transactions. This interim act open the
way for
more efficient e-commerce. (Matticks 2001).
Taxation and E-commerce
Taxation is a minefield in cyberspace, with areas of jurisdiction
becoming blurred and unenforceable. There has
been great debate in the
USA regarding taxation of e-commerce with calls for simplification,
leading to uniformity
of taxation law between the states. (Thibodeau,
2001)
Taxation is a political hot potato in the USA especially as governments
don’t wish to be seem as hindering the new
economic wonder. Care must
be taken not to give unfair advantage or disadvantage to those trading
online.
Issues such as compensation for tax collection and jurisdiction
are still being hotly debated and are to date
unresolved. (Wilder 2000)
Although the issue of e-commerce taxation is still uncertain, the
Australian Tax Office (ATO) is presently adapting
the existing system
to deal with the requirements of e-commerce, and monitoring
international developments to
enable a more uniform approach to
e-commerce taxation looking carefully at issues of jurisdiction and
double
taxation (in regard to financial transactions between banks).
Defamation
Defamation over the web is considered by law to be the same as through
any other media, therefore traditional
laws apply, though once again
jurisdiction and variance in law from state-to-state and
country-to-country poses
problems. The issue gets a bit messy when
establishing the distributor of the material.
Outside of cyberspace, the publisher or broadcaster of an item is
accountable for any item they publish or broadcast.
Consequently,
strategies are put in place to safeguard the company from liability and
nothing gets published without
being scrutinised thoroughly (well in an
ideal world anyway).
Unfortunately, on the Internet, accountability falls on not only the
author of defamatory item, but also (in the case of
email and bulletin
boards for example) the employer and the Internet Service Provider
(ISP). This poses huge problems
for management who cannot reasonably be
expected to scrutinise every transmission originating on its system.
For ISPs,
the problem is even more problematic as it is impossible to
monitor all data transmitted.
Presidents to date are indicating that there is a huge risk involved in
allowing employees free unmonitored use of
electronic communication
systems. (Loundy,?)
Crime and regulation of content
When we think of cyber crime, we tend to think of hackers getting into
government computers or virus writers.
But computer crime is as varied
as those perpetrated in real space. Including illegal accessing of
computer
programs and files, disruption of internet services and
business activities, theft of identity, pornography, c
opyright
infringements, cyberstalking, sales of illegal goods such as firearms,
child pornography, child selling…
International law enforcement agencies are setting up specialised teams
to combat the problems of cybercrime,
often working together to detect
scams that cross international borders. Large corporations are also
working
closely with law enforcers to overcome problems such as denial
of service and unauthorised access to data.
An International treaty, the Convention on Cybercrime was initially
drafted in 2000 to enable international law
enforcement agencies to
fight computer crime (latest draft March 2001
http://conventions.coe.int/treaty/
EN/cadreprojets.htm). This proposed
legislation cause concerns regarding the infringement of human rights
to privacy and the potential for the Pact to give law enforcement
agencies powers that they would never
be allowed through domestic
legislation. (Perera, 2000)
Security
Security risks come in many forms, email vulnerability, hacking, virus
infection, industrial espionage and
transaction vulnerability.
The resolution of these security issues is essential for further public
confidence in e-commerce, it is estimated
that around 37% of Australian
companies suffered unauthorised access in 1998, with widespread
problems in
the financial and banking sectors. (APC Magazine, 1998)
There has been a great deal of debate regarding the subject of
encryption with government agencies voicing
concerns over the ability
of individuals to encrypt illegal transmissions to avoid detection.
Organisation such
as Electronic Frontier Foundation, on the other hand
have been vocal in their opposition and are reluctant to
allow further
erosion of personal freedoms. (Sudlow, ?)
The Australian Government has enacted the Electronic Transactions Bill 2000 to cover matter such as Public Key Encryption.
E-transactions
E-transaction are any financial transaction make electronically, they
are for instance credit card payments over the net,
internet banking
transaction, electronic cheque and cash payments etc.
Financial transactions in Australia are governed by the Banking Act and
the Payment Systems (Regulation) Act 1998. To
further cover transaction
made electronically the Federal and State governments has adopted the
Electronic Transactions Bill 2000.
Privacy
It is essential the privacy of information transmitted over the net is
protected from abuse. We all know the frustration
of dozens of
unsolicited emails and wondered how on earth the senders got your email
address.
The need for legislation to protect the privacy has been debated
internationally and issues such as the use of cookies,
the collection
of information, selling of private details and privacy statements on
websites are foremost in consideration.
This year the 107th American
Congress has set privacy as a top issue on its agenda and bills were
put forward to regulate
the use of personal information and to prohibit
email spam.
Australia has amended its Privacy Act and is committed to review the legislation regularly to keep abreast of developments.
Stepping into the realms of fantasy, it is now possible for marketing
companies to place software on your computer,
which will track your
movements when online, without your knowledge. This information can
also be glean through the
use of cookies and although the president for
prosecution for this practice has now been set with the Double Click
case. (Sherman, 2000)
As a result of mounting pressure for effective privacy, legislation
internet lawyers are advising their clients to constantly
review
privacy laws and to inform user of the purpose of the information
gathering. A recent survey of Australia’s top
100 websites found that
almost of third collected personal information without informing users.
Out of 72% who collected
information, only 50% had a privacy policy.
Is it enough?
As governing bodies struggle to walk the line between allowing
self-regulation or legislating every effort is being made to
avoid
putting a strangle hold on e-commerce. In the early days of e-commerce,
the law was hopelessly out of step, but
with growing president and new
legislation, the gap is narrowing.
Organisations such as the International Chamber of Commerce (ICC) are
encouraging commerce to embrace the legal issues
of e-commerce in order
to avoid imposition of legislation. They are also working in
conjunction with legislators to clarify
issues and make recommendations.
With constant vigilance and unilateral effort to adapt quickly to
change the present systems can meet the challenges posed
by e-commerce.
Bibliography
Patrick Thibodeau, (2001), Online retailers call for simpler tax rules, Computerworld Inc http://web3.infotrac.galegroup.com/itw/infomark/689/31/37636008w3/purl=rc1_EIM_0_A72092280&dyn=13!ar_fmt?sw_aep=latrobe
Binning, David (1999), The Wild Wild Web, Australian PC World Nov p24 http://web3.infotrac.galegroup.com/itw/infomark/743/496/37604177w3/purl=rc1_EIM_0_A61233657&dyn=13!ar_fmt?sw_aep=latrobe
Brennan.
L, Glenn A. Barber .Why Software Professionals Should Support The
Uniform Computer Information Transactions Act
(And What Will Happen If
They Don’t) http://www.2bguide.com/docs/proucita4.doc
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Matticks, K, (2001), The electronic Signatures Act: What you need to know, Advisor Publications, Inc. http://web3.infotrac.galegroup.com/itw/infomark/689/31/37636008w3/purl=rc1_EIM_0_A69290944&dyn=13!ar_fmt?sw_aep=latrobe
Hardesty. D.,(2000) Australia's Second Report on Tax and the Internet http://www.ato.gov.au/content.asp?doc=/content/Businesses/ecommerce_Tati2.htm
Australian Banking and Finance (2000), E-commerce tax policy likely to mirror international models. First Charlton Communications Pty Ltd http://web3.infotrac.galegroup.com/itw/infomark/486/241/37636440w3/purl=rc1_EIM_0_A68678913&dyn=49!xrn_1_0_A68678913?sw_aep=latrobe
Perera. R, (2000), Human rights groups slam cyber crime pact. (Industry Trend or Event) Network World, Inc http://web3.infotrac.galegroup.com/itw/infomark/486/241/37636440w3/purl=rc1_EIM_0_A68678913&dyn=49!xrn_1_0_A68678913?sw_aep=latrobe
Digital signature Law survey, http://rechten.kub.nl/simone/ds-lawsu.htm
Loundy, D, Computer information systems law and system operator liability. Murdoch University
http://www.murdoch.edu.au/elaw.v1n3/loundy.txt
APC Magazine, (1998) Computer Crime Boom, http://www.infosecure.com.au/news2.html
Sudlow, R, Encryption Technology and National Security: Walls, Fortresses and Borders Forming in Cyberspace http://gsulaw.gsu.edu/lawand/papers/su95/suds.html
Sherman, Erik, (2000), Tinker Taylor, Software, Spy: Technology is creating ever more subtle ways for e-commerce firms to know you. How about ‘Web bugs’, on-screen dots that act as a tiny transmitter Newsweek, Inc http://web3.infotrac.galegroup.com/itw/infomark/689/31/37636008w3/purl=rc1_EIM_0_A66007286&dyn=13!ar_fmt?sw_aep=latrobe
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