New jurisdiction case: act committed where server based

This fresh UK High Court case on the EC Database Directive explains that actions take place where servers are based - not where companies are located. See Football Dataco Limited and others v Sportradar GmbH and another [2010] EWHC 2911: "online infringement of database rights occurs where the server which contains the data is based and not where the website user is located. On that basis, the Court stated that it did not have jurisdiction to hear the claim relating to database rights."

Lecture 2nd December postponed to 7th December 12-2pm

Due to the lovely skiing weather and the fact I'm in Cambridge looking at maps of the road problems, we're postponing today's lecture until Tuesday 12-2pm. Please let me know if that time is a major problem.

It means you have 2 lectures that day - I'll keep them down to 90min each so you don't get punchy.

Reading on jurisdiction is already posted on the blog.

Jurisdiction: Hague Convention on Private International law choice of courts

The status of the 2005 Convention is here, signed but not ratified. Note the EU has chosen to be bound without ratifying.

Theft of digital objects in Japan

Japanese police have arrested two people suspected of stealing virtual goods from players of online game Lineage II. The pair tricked victims via a booby-trapped program that claimed to help people play the game. Instead of boosting a character's abilities the program stole account names and passwords. About 100 people are thought to have fallen victim, netting the pair about 1m yen (£7,630).The money was made by selling off the virtual items, such as swords, shields and armour, that players were using on their characters. Yu Nishimura and Kaori Tanaka are believed to have met via Lineage II. The scam revolved around a website supposedly giving away an add-on program that boosted a character's fighting prowess. The pair have been accused under Japanese laws governing unauthorised access to computers. If found guilty they could face fines up to 500,000 yen (£3,800) or a maximum of a year in jail. NC Japan, which operates Lineage II in the country, is also believed to be considering suing the pair for compensation. It claims to have spent more than 100m yen to secure the game against malicious hackers or those using add-ons and other tools to boost in-game abilities.

E-Commerce directive: ensure freedom of expression and due process of law

EDRi has responded to the public consultation of the European Commission on Electronic Commerce Directive (2000/31/EC). This consultation, closed on 5 November 2010, aimed at assessing the implementation of the Directive in Member States, and at identifying limitations with the current text.
EDRi focuses its answer on the liability regime of the technical intermediaries set by Articles 12 to 15 of the Directive. This scheme applies to intermediaries providing access to the Internet as well as content distribution and hosting. From the users' perspective, this regime has a major impact on the level of freedom of expression, freedom of information, right to privacy and personal data protection on the Internet, as well as on the due process of law. From the technical intermediaries' perspective, it must ensure the needed legal certainty to run their activities.
EDRi's response stresses that the lack of clarity and precision of this regime does not currently allow adequate protection of human rights and the rule of law, nor does it ensure legal certainty for intermediaries. In support of this assertion, EDRi provides examples of concrete situations having occurred in different countries following the transposition of the Directive into national laws.
In order for the EU to respect its current obligations with regard to its own Charter of Fundamental Rights and its upcoming obligations under the European Convention on Human Rights, EDRi underlines the need to revise the current intermediaries liability regime as follows:
- Where an intermediary is not hosting the content (acting as a mere conduit, an access provider or a search engine), it should have no liability for this content, nor should it have any obligations with regards to the
removal or filtering of this content;
- Where an intermediary acts as a hosting provider, its liability with respect to the content hosted should be restricted to its lack of compliance with a court order to take down this content;
- Intermediaries should have no obligation to monitor content;
- Services and activities currently not addressed by the Directive (search engines, web2.0 services, hypertext links) should also benefit from the same limited liability regime.

E-money Directive and implementation proposals

See the 2009 Directive, the UK proposed implementation and some suggestions for improvement.

Euro-Commissioner on cookies and new Art.5(3) of 2002/58/EC

See her speech here - on the issue of how cookies can be made compatible with European privacy law via co-regulation:

But it will need to be one clearly based on the applicable EU legislation. Such a solution can go a long way towards facilitating compliance and avoiding divergence among the Member States. To get to such a solution, the self-regulatory framework would – in my view - have to include at least the following four elements.

1. weffective transparency. This means that users should be provided with clear notice about any targeting activity that is taking place.
2. consent, i.e. an appropriate form of affirmation on the part of the user that he or she accepts to be subject to targeting.
3. user-friendly solution, possibly based on browser (or another application) settings. Obviously we want to avoid solutions which would have a negative impact on the user experience. On that basis it would be prudent to avoid options such as recurring pop-up windows. On the other hand, it will not be sufficient to bury the necessary information deep in a website’s privacy policies. We need to find a middle way. On a related note, I would expect from you a clear condemnation of illegal practices which are unfortunately still taking place, such as ‘re-spawning’ of standard HTTP cookies against the explicit wishes of users.
4. effective enforcement. It is essential that any self-regulation system includes clear and simple complaint handling, reliable third-party compliance auditing and effective sanctioning mechanisms. If there is no way to detect breaches and enforce sanctions against those who break the rules, then self-regulation will not only be a fiction, it will be a failure. Besides, a system of reliable third party compliance auditing should be in place.

Examples of terms and conditions in e-commerce: ADR for eBay

Squaretrade: About Us: Overview.

Squaretrade: Standards of Practice for Online Dispute Resolution

Stiener, D. (2005) Are eBay users getting a fair deal from Squaretrade?

Reading for next Thursday: consumer contracts

1. Chapter 3 Edwards and Waelde 'Law and the Internet' esp. consumer contracts pp94-95, 107-118.
2. Distance Selling Directive 97/7/EC esp. Articles 1-7
3. Messner (2009) ECJ case (links here)

Paypal merchant services Ts & Cs

For 2 weeks' time - worth investigating.

Exercise for Friday 12th 12-2pm

You will now have formed your groups of 4 students - and assigned an article to each. You must have realized that's NOT all you had to do.
You MUST post 500-word summaries of the articles to this blog - via my email. So send me the draft once complete. That way we can all share the knowledge.

E-Commerce takes off - news item from March 1996....

Compuserve offers new web hosting service for e-commerce providers - explains that EDI will be overtaken in 1997. This is when Sacher researched his report, and OECD countries began to reconsider their legal frameworks.

Excellent summary of contract rules in e-commerce

This article is by a colleague of mine on the Society for Computers and Law Media Board - we are arranging for free access to SCL articles by academics, and this piece shows how useful it will be.

Reading for next Wednesday 4-6pm

Lecture theatre to be allocated - you will receive an email.
Required reading:
Edwards and Waelde pp.101-119.
RTS Flexible Systems v. Molkeroi Alois Muller GMBH [2010] UKSC 14 (summary) and report.
Optional reading:
Reed and Angel eds. (2007) Computer Law pp.199-214 esp. pp.199-208.

UK E-commerce/Internet sector worth £100billion?

Booz Allen Hamilton survey for Google - but how can the Internet economy be bigger than construction when its measuring e-commerce, NOT the actual products and services that bought?

How public key encryption works

Clever little video shows you how.

Jurisdiction - recent UK cases: Google/Wikipedia

Article explaining jurisdictional issues involving Norwich Pharmacal orders to require details of third party offenders to be passed on: New Law Journal  Vol 160, Issue 7404

THE LAW OF ELECTRONIC COMMERCE: Alan Davidson

Good review of a recent book that might be useful to those of you intending later to specialize in e-commerce law - I have ordered 3 more for the library: Cambridge: CUP, 2009, 399 pp, £30, ISBN-978-0-521-67865-0 (pbk)

Changes to teaching 28 October, 3 November, 12 November

As we now have a much larger class, we will try to find a more suitable room - ideally a lecture theatre.
This week, there will be an extra class on Thursday afternoon 28th October for those who missed the first lecture - details to follow.
We will also have some date changes in the following two weeks, when the class moves to Wednesday 3rd November and then to Friday 12th November.
Thereafter, its Thursdays right through to the end of term.
This changes are unavoidable - and much better for the class!

Da Cunha Virginia c/Yahoo de Argentina SRL

Da Cunha Virginia c/Yahoo de Argentina SRL, Argentinian Court of Appeals (2010 overturning 2008) – note Yahoo! Press release:

On August 13, 2010, an Argentine Appellate Court overturned a 2008 ruling of a lower court that had found Yahoo! de Argentina SRL and Google Argentina  liable for defamation in the case of an Argentine entertainer, Virginia Da Cunha. Da Cunha is one of several Argentine celebrities who have been seeking money damages in relation to the companies’ alleged failure to block all third-party owned and controlled sexually-oriented Web sites that contain their name or images. In issuing the 2-1 decision in favor of the companies, the Appellate Court concluded that the companies could be held liable for damages based on a defamation claim only if they were made aware of clearly illegal content and were negligent in removing it. The Appellate Court stated: 

“…this Court finds no liability can be held against Defendants (search engines) for injurious search results that appeared on the Internet before Defendants have received notice requesting the exclusion of said search results. The mere possibility that a (defendant) search engine produces search results from third party sites that yield offensive and scandalous information about an individual, which may cause injury or damage to that person’s image or reputation, does not by itself mean that said individual has a right to seek damages directly against the search engines.”

Reading for 28 October class: 'Online contracts'

Directive 1999/93/EC 13 December 1999 on a Community framework for electronic signatures: OJ L 13, 19.1.2000, p. 12.
ECD Article 9 and Recitals 34-35.
Report on the Operation of Directive 1999/93/EC.
Angel, J. (1999) Why use digital signatures for electronic commerce? JILT 2.
Background: Part II of Waelde and Edwards (2009) Law and the Internet. This is the required textbook for the course.

100,000 websites blocked in Thailand - ISPs' role

Interesting report on web censorship in south-east Asia.

SABAM v. Scarlet (Tiscali)

Referred to ECJ in 2010 - from Belgium.

In re Facebook PPC Advertising Litigation, C 09-3043 JF (HRL) (N.D. Cal. April 22, 2010)

Facebook has won a decision against third party firms contending that its non-liability for fraudulent click-throughs on adverts posted on its side should be struck out.

Mobile Money Transfer Service - Vodafone

In March 2007, Safaricom, which is part owned by Vodafone and the leading mobile communication provider in Kenya, launched a mobile payment solution developed by Vodafone.^[36] M-PESA is aimed at mobile customers who do not have a bank account, typically because they do not have access to a bank or their income is insufficient to justify a bank account. The M-PESA system allows customers to deposit and withdraw cash via local agents, and transfer money to other mobile phone users via SMS. By February 2008, the M-PESA money transfer system in Kenya had gained 1.6 million customers^[37] and Vodafone announced that it was to extend the service to Afghanistan.^[38] The service here was launched on the Roshan network under the brand M-Paisa with a different focus to the Kenyan service. M-Paisa was targeted as a vehicle for microfinance institutions' (MFI) loan disbursements and repayments, alongside business to business applications such as salary disbursement. Afghanistan launch was followed in April 2008 by the announcement of further a further launch of M-PESA in Tanzania. As an operator of money transmission services, Vodafone became subject to anti-money laundering regulation and in July 2008, it was revealed that it had deployed a sanctions and PEP (Politically Exposed Persons) screening solution fromDatanomic for weekly screening of 2.5 million customers in Tanzania.^[39] The screening service was to be rolled out to Afghanistan, Kenya, India and Datanomic disclosed that the solution might be used to screen all of Vodafone's 300 million customers globally.

EC consultation on E-Commerce Directive closes 5 November

The European Commission wishes to study in detail the various reasons for the limited takeoff of electronic commerce, as stated in the Retail Market Monitoring Report “Towards more efficient and fairer retail services in the internal market for 2020” (COM (2010) 355) and evaluate the implementation of the Directive, in accordance with its Article 21, as announced in the Communication “A Digital Agenda for Europe” (COM (2010) 245). For this purpose, Commission services wish to consult interested parties directly and receive their reaction and experience on a number of subjects:

• The level of development, both national and cross-border, of information society services.
• Issues concerning the application of Article 3(4) by the Member States (administrative cooperation).2
• Contractual restrictions on cross-border on-line sales.
• Cross-border on-line commercial communications, in particular by the regulated professions.
• The development of on-line press services.
• The interpretation of the provisions concerning the liability of intermediary information society service providers.
• The development of on-line pharmacy services
• The resolution of on-line disputes.

1) As defined in Directive 98/48/CE: any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.
2) On-line gambling will be the subject of a consultation scheduled for the second half of 2010.
3) Otherwise known as the “country of origin principle”: each Member State shall ensure that the information society services provided by a service provider established on its territory complies with the national provisions applicable in the Member State in question which fall within the “coordinated field”, even when he provides the service in another Member State.

E-Commerce a decade after E-commerce Directive

Conference in Brussels, Thursday 28 October 2010 - see the programme. The abstract explains clearly what has changed:
"Ten years after the adoption of the Directive of 8 June 2000, this international Congress aims at analyzing main rules or principles it settled, in order to determine if they are still adapted to current features of services provided by the internet. Indeed, with Web2.0, new services, which did not exist as such in 2000, are available (social networks, wiki, etc.). Contracts are not necessary concluded between professionals (B2B) or between a professional and a consumer (B2C): C2C relationships, through eCommerce marketplaces especially dedicated to consumers or online auction websites, become more and more frequent. Several services are also provided by trusted third parties (time-stamping, archiving, registered letters, etc.). New kinds of advertising can be observed (in particular, addressing to minors). Contract relationships can also be concluded and performed by electronic means, for instance in the case of digital contents like music, software or movies. After general speeches dealing with transversal topics related to eCommerce, the following ones will focus on these issues, and analyze “consumer protection”, “legal barriers to electronic contracts” and “intermediaries’ liability”."

European Parliament: new EU contract and consumer law not suitable for digital products

See the report by the MEP in charge of the most important Parliamentary committee, adopted this week: "Amend Recital 12a: The importance of European markets for online digital content is increasing and therefore it should be clear that goods referred to in this Directive also include digital products, such as downloads and software."

Cross-border Internet dispute resolution: Week 10

Excerpt available from Dr Julia Hornle's book from Cambridge University Press - if you intend to specialise in this area, you might consider reading the whole book.

Commissioner Reding on harmonising contract and consumer law across EU

Very interesting speech - plans for a new Directive in 2011 if it is adopted by the Council of Ministers on 10 December - watch this space!

We must fully harmonise these specific rules to allow distance traders and direct sellers to move beyond their national borders. For example, EU rules on the proposed 14-day cooling off period and standard withdrawal forms will give distance traders and direct sellers the legal certainty they need for simplified cross-border trade, while at the same time giving consumers certainty that the cooling off period is the same from wherever they purchase a product in Europe. 

Contract law: As Justice Commissioner in charge of civil and commercial law, I also know that beyond the Consumer Rights Directive, there remains a fundamental discussion about the divergences between national contract laws. That is why just before the summer, the Commission proposed several policy options for a possible European contract law. This important public consultation runs until the end of January 2011. The first priority is cutting red tape. This goes for businesses and consumers. For businesses: It's clear why they are reluctant to trade across borders. There are differences between national contract laws that entail additional transaction costs, fees and further legal uncertainty.