e-commerce

Source - Electronic Commerce (EC Directive) Regulations 2002 (‘the Regulations’)

How to approach a q:

for distinction points: define the terms
First half of q will be ‘what Regs the S ought to have complied w/’ cf. Regs 6, 9 and 11
Second half of q will be ‘what are consequences of non-compliance’ cf. Regs 13, 14 and 15 and which go w/which

Key defined terms	information society service - r.2(1) “any service normally provided for remuneration, @ a distance, by means of electronic equipment for processing .. And storage of data, and @ the individual request of the recipient of a service” Term includes: services that are commonly provided by ISPs such as provision of access to a communication network, email hosting and transmission and website hosting, selling and even just advertising goods/services online; and providing services via a mobile phone Service provider and recipient - r.2(1) “any person providing an info society service” as that term refers to normally provided for remuneration, it is possibly for a person who provides services for free to qualify as service provider Commercial communication - r.2(1) covers promotional activity in a wide range of communications media such as email, websites, banners and pop-ups.
Part 1 of q	What Regs should SP have complied w/?
Reg 6 - general	Info to be provided by a person providing an info society service: Reg 6(1)(a-g): name of SP Address of SP Deets of SP, including email Details of SP register where apprope See (e) to (f)
Does regulation apply to this electronic contract? Regs 9 and 11	Regs 9 and 11 apply to where provision of an ISS involves the placing of orders by technological means or the conclusion of contracts via electronic matters and impose special obligations on service provider Nb. Essential to recognize Regs dealing w/online contract hs have no effect on the operation of CL contractual principles
Reg 11(1)(a)	A service provider is obliged to acknowledge receipt of a customer’s orders. This does no amount to obligation to “accept” @ CL
Reg 11(1)(b)	Any online ordering system (such as form) must be designed in such a way that it is technically possible for customer to correct any errors before placing an order (ie. Back track) Reg 9(1)(c) requires that the recipient must be able to understand how to achieve this These apply if the order amounts to a contractual offer @ CL Reg 12 Nb. This does not mean that Reg 12 operates to turn all orders placed online into contractual offers @ CL
When does Reg 11(1) not apply?	if the recipient is not a consumer and the parties have agreed to dispense w/the SP’s obligations; or Contract is formed by means of an exchange of emails
Notes to Reg 9	Imposes specific obligations on a service providers to provide certain info “where a contract is to be concluded by electronic means” This doesn’t include situs where a webby plays a role in forming contracts, only when they are concluded online
Reg 9(1)(a)	Provider must explain different technical steps to follow to conclude contract
Reg 9(1)(b)	Whether or not the concluded contract will be filed by service provider and whether it will be accessible
Reg 9(1)(c)	The technical means for identifying and correcting input errors prior to placing of order
Reg 9(1)(d)	Languages offered for conclusion of contract
Reg 9(3)	Where service provider provides t&c’s the SP shall make then available to him a way that allows him to store and reproduce them
Part 2 Consequences of non-compliance w/Regs	Consequences differ depending on regulation breached
Failure to provide technical means for correcting input errors under Reg.11(1)(b)	Consequences is recipient made a contractual offer which he didn’t intent - if offer is accepted, a valid contract is formed. Reg 15 applies only to breach of 11(1)(b) and allows recipient to rescind Reg 11(1)(b) -> Reg 15 rescission
Failure to provide t&cs in a way that allows recipients to store and reproduce them under Reg.9(3)	The consequence will be that, in event of a dispute, recipient can’t consult t&c’s. Reg 14 applies only where the SP has not acted on a request to comply w/Reg.9(3) and the recipient may seek a court order compelling the SP to comply Reg 9(3) -> Reg 14 court order
All other cases of default Reg.13	Allows a recipient to enforce the Regs against an SP in breach and claim damages for breach of stat duty Reg 13 All other defaults -> Reg 13

Websites

Issue	Action
Regulation 4: name, address See reg. 6(1)(a) re general info	make sure this info is w/‘who is’ search providers Adequate ‘contacts’ page on webby
Avoid application of consumer law	Control who uses eg. Passwords and business registration
Jurisdiction and choice of law	Address these expressly in terms and conds of sale
CL: unilateral offer or invitation to treat	Clarify in t&c’s of sale
Regulatory obligation to acknowledge order Reg 11(1)(a)	Use technical means to build into website, best way is to generate email to customer automatically
Input errors by customer Reg.11(1)(b) and 9(3)(c)	Ensure online form allows “back-tracking” and/or to be edited
Provide “store and reproduce”able Reg 3	Send copy of t&c’s of sale automatically via email

5 stage test - do twice, for both host and person who uploaded item

does IPR subsist/is it validly reg’d/who owns it?
Identify infringing act
Relevant comparison - causal connection and access [for C]. Has a substantial part been copied in terms of quality and quantity?
Defences
Remedies

Does Reg 19 apply if a hosting situ?

Ie. Is there a recipient?

If yes - yes

If no - no

Effect of Reg 19?

Providing SP w/some immunity. Scope of immunity?

- against damages - nb. Not protection vs liability

Courses of action

put infringer on notice
Put host service on notice
If have to pursue action, easier vs host

Nb. Difference between

T&c’s of use	Cover a contract under which recipient may access and view the content of a webby
T&c’s of sale	Cover the contract under which (using a website) an SP agrees to provide, and a recipient pay for, goods and/or services

Provision of online access via broadband and or dial up connection and the transmission of electronic content via such connection

Sub category of ISP eg.

youtube
Facebook
twitter

Immunities under E-Commerce (EC Directive) Regulations

Regs provide certain, limited immunities from liab for damages or criminal sanctions which would otherwise arise for intermediary SPs.

Reg 18 [not examinable]

Caching of info eg. Temporary storage for technically purposes. Eg downloading a pdf

Reg 19

Hosting info - permanent storage where business outsources storage of its own website to an ISP rather than purchasing its own server

Nb. Immunity only applies when there is a recipient in the situation

Scope of protection

Protect SPs against liability for damages

Do not shield against an injunction

#8604 - Ecommerce - Commercial and IP

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