Legal Framework about Cyber Law and Online Trading - Assignment Example

Advice to client Name: Institution: Course Title: Tutor: Date: Advice to the client Introduction Business forms an important avenue for wealth creation and generation. Apart from the above, business contributes towards goods and service provision. Setting up a business is not a simple process as per see. It is an involving engagement that requires proper planning for it to succeed. It even gets more complex when it involves online trading and also human drugs. This is because in dealing with human drugs one should not subject people to experimental designs and thus, the need to clearly label and instruct the end user of the drug administration. In addition, he requires certification from relevant authorities that regulate pharmaceutical products. Information technology has offered a new platform for conducting business that offers easier global reach without the need for physical distribution channels. However, this might be easier said than done since there are numerous challenges that might arise. This paper aims at providing advice to a client who wishes to establish an online trading company. The advice is based on numerous cyber laws that are in existence in Australia. These laws govern the aspect of information and communication technology in terms of ethics, privacy, data handling and fulfilment of contractual obligations. Apart from the above, laws that govern normal platform of doing business are explored especially due to the dealing in human drugs. Brief overview of legal framework in relation to cyber law and online trading There are numerous legislations that deal with Cyber Laws. These pieces of legislation can be found both at commonwealth government level and territorial authorities. Most of these legislations revolve around intellectual property rights in the information technology sector, electronic transactions, competition rules, privacy concerns, drafting and negotiating of the contracts and computer crimes (Clark, Cho and Hoyle, 2010). The specific acts that touch on Brian’s paradigm are covered in legislations such as cybercrime Act of 2001 that address concerns of computer offences. The next legislation is the electronic transaction Act of 1999 that aims at facilitating electronic transactions. The others are privacy Act of 1988 that is directed towards ensuring privacy of individuals. Closely related to this is the voluntary disclosure of information and exchange of information. This aspect is dealt with in the information disclosure Act of 1999 (University of Canberra). Legal issues to consider in relation to the name of business From the initial observation, Brian wishes to engage in a partnership business that trades online with his wife by adopting a business name called BJ Organic Herbs, whereby “B” Stands for Brian and “J” for Joan. He even wishes to engrave this in the business logo/emblem. On the other hand, the main legislation that governs any form of business in terms of naming is the trademark law. Trademarks usually allow customers to identify a given company goods and services. In Australia, there is the commonwealth consolidated acts that govern issues of trade mark. The act is called trade marks act of 1995. This act covers aspects like registration and opposition to registration, corporate colours, phrase, design, combination of words and symbols (Commonwealth Government of Australia, Trade Marks Act, 1995). The first prudent step that should be taken by Brian is to conduct a search at the registrar of companies. Then if successful, he should make sure that e registers the name according to part 4 of the trade marks act of 1995. This would ensure no infringement on his trademark label (Doern, 1999, p.76 and 77; Sutherland, 2010). Thus, the naming of the company should comply with the act so as to avoid any court battles. Difficulties associated with doing business with international customers While dealing with international clients there are numerous challenges to be encountered. The challenges can be front themselves in terms of legal barriers, local market practices, political trends and power structures, currency regulations, and culture and customs, language and communication norms barrier. These might cause friction between the seller and the buyer if not well addressed (Adams, 2004). The part of the solution to these lies in understanding customers. This entails investigating the various kinds of customers who shop online and who might visit the site (Holden, 2007, p.32). The potential litigation may arise in form of jurisdiction, contract formation, contract validity, authentication and integrity. The aspect or possibility of bringing the litigation back into Australia is a complicated matter. This is because even the international treaties have failed in terms of enforcement of judgements across borders. This is worsened by the fact that a judgment obtained in one country might be infeasible to enforce in another country (Kilgour and Eden, 2010, p.426). How to set up website when considering the possibility of entering online contract When building a web site while putting consideration into entering online contract, the designer should put into focus risks that might arise in engaging in online commerce and contract formation. These concerns relates to lack of valid offer, offer not being properly accepted and not communicating the acceptance of the offer properly. The basic principle that the website should be built to address is the fact that there are basic rules which cut across board whether one is dealing with internet contracts or paper based contracts. The website should address elements of a valid contract. These elements are availability of offer and acceptance, having parties capable of entering in to contract, certainty of terms, valuable consideration, and intention to create legal relations. However, the unique observation is that Australian law at a point may not govern contract entered into by Australian e-commerce merchant (pacelegal.com.au). The website should be designed in a perspective that terms of offer are very clear. These terms should include price, terms of delivery, postage charges, health and safety warnings, conditions of relating to returns, exchanges, cancellations and refunds, warranty and after sales provisions. The terms of offer can be sent in an email or in a website where the client can click accept or decline button. The user should be given time to read the terms and condition by ensuring there is a time delay before clicking a acceptance or rejection button. In addition, geographical reach should be stipulated. This relates to global reach or a restricted global reach. Before finalizing agreement, e-website can offer a platform for counter offer. This means that there are terms placed back by the offeree to offeror (pacelegal.com.au). The issue of shrinkwrap contract that Joan heard of is an agreement that is attached to the products. This kind of agreement raises controversy since the purchaser can only read terms of agreement after payment and acceptance of the package. This kind of agreement has unclear status in legal corridors (Clark, Cho and Hoyle, 2010, p.169). The nature of contractual obligation that takes place when clients order products from him The issue of contractual obligation is a complex phenomenon. Contract law are normally formulated in order to enforce certain promises. In Australia this is regulated by the common and statutory law. These legalities are stipulated in Competition and consumer Act of 2010 and Australian Consumer Law (Clarke, 2011a). Apart from this, Brian must be aware of the implied and express terms in a contract. Express terms are articulated prior to or at the time of formulating contract while implied terms are imposed by the law irrespective of not being discussed by the parties (Clarke, 2011b). Making an offer in online platform is a function of and subject to technology platform utilized. However, an offer is considered to be made when the purchase order is sent electronically and automatically accepted by the supplier’s web server. Apart from the above, the e-merchant website should clearly differentiate for probable client whether web displays are intended to constitute legal offers or invitations to treat. Acceptance is the making of unqualified assent to the conditions of an offer (pacelegal.com.au). Valid acceptance in a web environment is attained either through clickwrap or browsewrap agreements (Clapperton and Corones, 2007, p.3 and 4). According to electronic transaction act of 1999, contract formed on the internet do not occur at the point which the offer is accepted, but at the point at which the acceptance of the offer is communicated to the offeror (pacelegal.com.au).In event that Brian can not provide the stipulated product he can revoke the order by providing adequate information to the client (pacelegal.com.au). However, good faith concept in contractual agreement requires that one acts honestly and fairly in meeting his contractual obligation (Zeller, 2003, p.4) Intellectual property issues and or consumer law that are to be considered In building his business and also in engaging his clients there are numerous issues to be considered under Australian laws. One of the factors to be considered is the repealed trade practices act of 1974. The repealed act gave birth to Competition and consumer Act of 2010 that became effective from 2011. This act aims at promoting completion and fair trade in the market place to benefit consumers and community. In addition, it addresses issues such as unfair contracts. Thus, this would be relevant in guiding him in formulating the contracts that he wishes to engage with. For instance, the proposal of Joan to have a shrinkwrap contract would be unfair and can be easily challenged in Australian courts (Commonwealth Government of Australia, 2010). In Australia there are numerous legislations that touch on the aspects of intellectual property rights. In trying to avoid infringing other people’s intellectual property rights or in order to protect his rights and patent, Brian should do a thorough search and patent his products. The legislative pieces that he should consult include patent act of 1990, design act of 2003, plant breeder’s rights act of 1994 and trademarks act of 1995 (Parliament of Australia, 2011). Obligation of the proprietor in terms of privacy and adverts using emails Section 14of Australian privacy act of 1988 stipulates how organizations should handle the clients’ information. The act covers both personal and sensitive information. In addition, the law offers an avenue for individuals to know if their personal information is being collected by private organization, what personal information is held about them, how the personal information is being used and who is given the information. This concept would also apply in the case where Brian is to be given an email list by another party without the recipient consents. This can lead to legal battles if the recipients are not adequately informed since it will amount to unethical use of personal information entrusted to another organization. Conclusion Online businesses offer a new paradigm of doing business and enhanced global reach. However, there are numerous legal and ethical considerations that should be put in place. One aspect that this study noted is that a country can not have a single legislation that touches on e-commerce. This is because it involves multi pronged platform. These platforms include people, technology, hardware, software among others. Moreover, the universality of internet makes it difficult to regulate in terms of contractual obligations and cyber crimes. This calls for concerted efforts from all countries. This kind of legal limbo places both the merchant and consumer at limbo. However, in a contract that both two parties are able to apply the concept of good faith most worries and challenges can be addressed and thus, enhancement of online trading. References Adams, M. 2004, Strategic planning: fresh information for international success, Viewed on 3rd February 2012 from: http://trekconsulting.com/Publications/Newsletter/Issue8/Issue8.html Clapperton, D. & Corones, S. 2007, Unfair terms in “clickwrap” and other electronic contracts, Viewed on 4th February 2012 from: http://eprints.qut.edu.au/7650/1/7650.pdf Clark, E., Cho, G. & Hoyle, A. 2010, Cyber law in Australia. AH Alphen aan den rijn, Netherlands: Kluwer Law International Clarke, J. 2011a, Australian contract and consumer law. Viewed on 4th February 2012 from: http://www.australiancontractlaw.com/ Clarke, J. 2011b, Terms of contract, Viewed on 4th February 2012 from: http://www.australiancontractlaw.com/law/scope-terms.html Commonwealth Government of Australia 1988, Commonwealth Consolidated Acts-Privacy Act 1988, Viewed on 3rd February 2012 from: http://www.austlii.edu.au/au/legis/cth/consol_act/pa1988108/ Commonwealth Government of Australia 1995, Commonwealth Consolidated Acts-Trade Marks Act 1995, Viewed on 3rd February 2012 from: http://www.austlii.edu.au/au/legis/cth/consol_act/tma1995121/ Commonwealth Government of Australia 2010, The Australian consumer law, Viewed on 4th February 2012 from: http://www.consumerlaw.gov.au/content/Content.aspx?doc=the_acl.htm Doern, G. B. 1999, Global change and intellectual property agencies: an institutional perspective. London, Cromwell Press Holden, G. 2007, Starting an online business for dummies. Hoboken, New Jersey: Wiley Publishing Inc Kilgour, M. D. And Eden, C. Ed. 2010, Handbook of group decision and negotiation. London: Springer Parliament of Australia. 2011, Intellectual property law. viewed on 4th February 2012 from: http://www.aph.gov.au/library/intguide/law/Intelectuallaw.htm Sutherland, J. 2010, Trade Mark Law. Viewed on 3rd February 2012 from: http://www.jsip.com.au/trade-mark-law University of Canberra. 2010, CyberLaw. viewed on 3rd February 2011 from: http://www.weblaw.edu.au/display_page.phtml?WebLaw_Page=Cyberlaw Zeller, B. 2003, "Good Faith - Is it a Contractual Obligation?," Bond Law Review: Vol. 15: Iss. 2, Article 13. Available at: http://epublications.bond.edu.au/blr/vol15/iss2/13 Read More