Law of Electronic Commerce and the Internet - Assignment Example

Questions Ans It would be difficult for Barry to get back the 1000$ that have been paid because the nature of the electronic contract he has entered into a click-wrap agreement where he has been forced to see the terms of sale before entering into the agreement. A contract is created when an offer is accepted and this acceptance is communicated. From a legal perspective therefore, clicking the “I accept” button constitutes an acceptance of the terms of the contract, which is communicated to the seller instantaneously, since this is an acceptance being communicated through the electronic medium1. Hence it will be assumed that Barry and Mezeon were of the same mind about the terms of the contract regarding the intimation within two weeks if the goods are not received. The fact that Barry did not take the time to carefully read the contractual provisions and its terms and conditions before communicating his acceptance will not be held to be the fault of the merchandiser but of Barry himself, because he had the obligation to peruse the terms to acquaint himself with the terms that he was binding himself to. For instance, according to the terms of the Uniform Computer Information Transactions Act (UCITA), click wrap agreements that allow a user to indicate his agreement to the terms before clicking on “I accept” it will be legally enforceable, so long as the user had a chance to review the terms of the agreement before signing2. Therefore, the chances of Barry recovering the money do not appear to be good, since he reviewed the contractual term about the delivery of the product and assented; also because a contract is already in place for the sale of the HiFI Stereo. However, there is a possibility that the law may be applied to force Mazeon to trace and recover the merchandise that was sent. The Trade Practices Act of 1974 in Australia is mainly geared towards the protection of the interests of consumers. This Act ensures that a corporation engaging in trade or commerce does not mislead or deceive customers3. This Act in particular restricts unfair practices, such as advertising a product that is not reasonably available. In this case, allowing such a short period of two weeks for delivery of a product and disclaiming all liability and refunds thereafter is in the nature of an exclusion clause that may be held to be unreasonable and an advertising of a product not reasonably available. Since Mazeon would have had to use the services of a mailing agent to dispatch the goods, it would not be unreasonable to expect the Company to be able to locate the shipment and have it delivered to Barry; hence the Courts may not absolve the merchandiser of all responsibility, while also allowing him to retain the 1000$ Barry has paid for a product never received. Ans 2: The right to privacy is regarded as a fundamental human right; however there was no privacy law as such under common law provisions4 in Australia until 1998. A set of data protection laws now exists, which regulates the collection and use of personal information from individuals and also regulate the disclosure of such materials. However, this pertains specifically to personal information collected from individuals for certain transactions such as financial transactions and does not protect individual privacy in a broader sense. The Commonwealth Privacy Act of 19885 applied to all Government entities and credit reporting organizations up to 2001, however its provisions have also been extended to private sector organizations under the provisions of the Privacy Amendment (Private Sector) Act 2000. This Act contains ten National Privacy Principles6, which state that personal information must be collected only if absolutely necessary, must not be disclosed to other parties without the prior knowledge and consent of the person concerned although access to such information must be provided to the person whose information it is and the organization collecting the data must protect such personal data from unauthorized access. Lastly, individuals must also be provided with the option of not identifying themselves when entering into a transaction with an organization. An organization cannot collect sensitive information about an individual unless it is necessary to prevent or lessen a serious, imminent threat to another individual and such information cannot be transmitted outside Australia unless a law mandates it or the individual himself/herself consents to such a transfer of information. Individuals who find organizations not respecting the privacy principles, as contained in the Privacy Amendment (Private Sector) Act 2000 or who suspect that their personal information is being misused, also have the option to register a complaint with the Federal Privacy Commissioner, who is empowered to investigate such complaints to determine if there has been a breach of the law, in which case the matter can proceed to the Courts for adjudication. Ans 3: A trademark is a registered sign that is used to distinguish the goods and services provided by a particular trader and the registration of that trademark. The entity that owns the distinctive trademark gains the exclusive, legal right to use that particular trademark in connection with the particular good for a period of ten years. Hence if any other party makes use of the trademark in connection with similar or other designated products which are listed in the trademark application, then an infringement of trademark takes place. Section 120 of the Trade Marks Act of Australia defines three categories of conduct that will amount to the infringement of a trademark, which were also spelt out by the Court in the case of Coco Cola Company v All Fect Distributors Ltd7. The first category covers the use of a trademark similar to the registered one, by another party, for goods or services that are identical or similar to the designated goods and services in the trademark agreement. The second category covers the use of the registered trademark itself for goods and services which are similar to the designated goods or services. A third category also covers the use of trademarks that provide for the effect of an international trademark.8 Infringement of copyright in an intellectual property or the infringement of a patent means that an unauthorized user seeks to benefit economically from the product in question by using it in part or in its entirety without acquiring a license or paying for the privilege of doing so. In this respect it is similar to trademark infringement because an infringer of a trademark also seeks to benefit economically from its use. In both cases, a deceptively similar use of the property in question will constitute infringement. However, one significant difference between trademark infringement and other kinds is that while copyright or patent infringement may be partial, i.e, a portion or section of the original product may be used, in the case of a patent, the entire trademark must be used in its entirety or in a deceptively similar version or format. Moreover, trademark infringement will only be deemed to occur when it is in connected with the designated Goods and Services spelt out in the trademark application and will not include other products. The effectiveness of trade mark protection depends upon the enforceability of rights and trademark infringement suits are few but very successful for the owners9. Ans 4: A patent is a property right that is granted against any device or process that is original, useful and/or innovative and it allows the investor of the product or process to its exclusive economic exploitation for a specified time period10. The concept behind patenting is to allow the inventor of a product or process to enjoy the right to benefit from it. Patents in Australia are governed by the Patents Act of 1990 and may be of two types. The standard commercial patent is provided to organizations that may have invented or developed original and innovative products which have significant long term commercial application. The registration of a standard patent requires a process of examination11 and the organization applying for the patent must provide a full description of how their patent works so that others can research it further. A standard patent is registered for a duration of 20 years and provides protection against infringement and full control over the commercial exploitation of the product to the patent holder. Another type of patent that is provided is the innovation patent, which can be applied for by any person who develops a new and useful invention that involves an innovative step12. While the concept being patenting of a product is to allow protection to be extended to the developer of the patent, the innovation patent allows protection for small scale developers of innovative products. The innovation patent covers those kinds of products that do not meet the minimum inventive standards that are required for standard patents. As a result, it is applicable in the case of those inventions that are not full blown inventions per se but are more in the range of lower level and incremental inventions that build upon other products and processes. The innovation patent allows the inventor to protect his or her invention at every stage of its development process and is granted within a month, thereby allowing an inventor to gain from the benefit of being the first to enter the market.13 However, such a patent does not mandate an examination process as in the case of a standard patent and the protection accorded to the patent is of a shorter duration. Although an examination is not mandated, unless an innovation patent is examined, the patent owner will not be entitled to legal protect for the patented product or process. A person who seeks an innovation patent must submit an application, which will be subjected to a formalities check for legibility and details, etc. A grant is then issued, unless the would-be patentee also requests an examination which then allows legal protection. Ans 5: Contracts are more prevalent within the online medium of cyberspace, because the “online medium is textual and affirmative steps are already required to surf web sites or to access information.”14 However, it also differs from offline contracts in that there is almost no bargaining or negotiation of any kind where online contracts are concerned. There is no general requirement for online contracts to be in a specific form and the parties conclude contracts on the basis of the buyer taking up the offer as-is by clicking on the “I accept” key, and in the event they choose not to accept the offer, they seek alternative sources on the Internet. Any negotiations or bargaining between the parties in relation to the transaction still takes place offline only.15 Contracts made in cyberspace also give rise to the question of whether a software agent can enter into a contract on behalf of a person, since a party could be contracting with unseen and unknown parties16. The parties must demonstrate the intent to enter into legal relations in an offline contract, however the question is can an electronic agent enter into contracts and will the intent to enter into legal relations be established? Establishing a consensus ad idem between the parties is also more difficult in online contracts and a clear statement of terms is vital in the electronic environment in order to be actionable. The online medium uses digital signatures and the legal problems of authentication and validation of signatures is a problem that is not experienced in offline contracts. Online contracts also differ from offline contracts in that privity of contract may not exist between an original buyer of a service, product or piece of information, and all the successive third parties to whom B may pass on the services contained in the contract. In the case of online contracts where ownership could change hands in quick succession along with contractual obligations.17 Another significant problem in online contracts is how to establish which court will have jurisdiction to adjudicate in the matter in the event a dispute arises between the parties? Once jurisdiction is established, the law of which party is to apply and how is it to be enforced? A litigant may need to file suit in several jurisdictions due to the multiplicity of locations and parties to an online contract.18 Ans 6: One of the most common ways by which hackers manage to gain access to a user’s computer or program is through the use of viruses, which are sent through emails, and are able to gain access to the user’s emails. Therefore a user can protect himself/herself by using some strong virus protection software. Moreover, new versions of viruses are being developed every day, therefore it is vital that virus protection software programs must be up to date so that they can attack the latest viruses and quarantine or destroy them before they cause damage to the computer’s hard disk and/or programs and data. Secondly, a user should avoid divulging sensitive information online over unprotected sites, or over an open network. Financial details and/or personal information should only be provided through secured sites and via a secured mode of access. These sites, such as bank sites for example, transit the information in an encrypted format, hence there is less danger of this information being hacked. Moreover, a user can also use only such sites where the identity of a user is authenticated through electronic handshakes or through the use of multiple points of access and password provision. Care must be taken not to divulge any personal information to unauthorized parties or sites that a user is not familiar with. In so far as possible, such information should only be provided when there is adequate justification provided for the requirement of such information in the first place. Thirdly, since most sites where confidential information is to be divulged or the use of email requires the use of passwords, users must be careful to select the kinds of passwords that cannot easily be identified or tracked. Using data such as one’s personal birth date or personal information as passwords must be strictly avoided and passwords combining both numeric and alphabetical characters in a unique combination are to be recommended. Moreover, such passwords must be stored in a safe place so that others do not have access to it. If a user is using a public computer, the automatic provision whereby the computer offers to remember passwords should be rejected to prevent unauthorized access.19 Lastly, there are also specific kinds of virus protection software and other software programs available that ensure higher levels of protection. Installing firewalls into computers prevents access by unauthorized users20. Use of SSL sockets allows information in the computer to be encrypted, and storing sensitive information on an offline format like disks may provide higher levels of safety. Computer users should not open emails which are not from familiar and trusted sources, especially those emails which have attachments, because these could be the source of viruses. Ans 7: The Internet is a cheap and cost effective medium that has a world wide outreach, also providing a forum of instantaneous access and these are the very qualities that have accelerated crime over the Internet. One of the most frequent crimes that exists over the Internet is that of pornography, listed as one of the most heinous online crimes by Americans21, whereby sexually explicit, objectionable material is transmitted over the web. This has also led to the abuse and exploitation of children through picturizing them in obscene acts to be transmitted to paedophiles and other pornographic voyeurs. Such pornographic may also be accessed by children and may cause irreparable harm to their innocence, because it is difficult to control access to the Internet and such materials may be freely available. Another common crime that occurs is the unauthorized use of confidential financial information. Customers who purchase materials over the Internet or use the Net for their banking transactions may need to provide personal information and user codes and passwords, which can be hacked into by criminal entities and used to transfer funds out of the accounts of the person whose information has been hacked. Credit card information, social security numbers and bank pin codes and passwords are some of the sensitive types of information that may be stolen in order to engage in transactions misappropriating funds and credit of customers. A third crime that occurs over the Internet which is also very common is online piracy of copyrighted material. It is difficult to enforce copyright protection over the Net where literary, artistic or dramatic works are concerned because material can be copied online without leaving a footprint.22 Technology such as Bit Torrent for example, allows users to download entire movies to their computer without paying to view it as would normally be the case. This is also the case with music which is downloaded using Napster. As a result, the copyright is exploited without payment and the infringer cannot be easily tracked. Lastly, the online medium may also be used by criminal elements such as terrorists to spread their propaganda among a wide audience and also to hack into Government sites or implant viruses there, where they may be able to cause an untold amount of damage by compromising or destroying sensitive and confidential Government information. Bibliography * Ali, Izaz, 2004. “Contract law in relation to contracts online”, Retrieved December 8, 2007 from: http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/Contract%20Law%20in%20relation%20to%20e.htm * Bain, Malcolm and Subirana, Brian, 2003. “Legalising autonomous shopping agent processes”, Computer Law and Security Report, 19(5): 375-387 * Bosland, Jason, Weatherall, Kimberlee and Jensen, Paul, 2006. “Trademark and counterfeit litigation in Australia”, Intellectual Property Quarterly, No: 4. retrieved December 8, 2007 from: http://melbourneinstitute.com/people/pjensen/pdf/IPQ_article.pdf * Buono, Francis M and Friedman, Jonathan A, 1999. “Maximizing the enforceability of click wrap agreements”, Journal of technology, law and Policy, 4(3). December 15, 2007 * Coco Cola Company v All Fect Distributors Ltd (1999) 96 FCR 107 * Credit cards and identity theft: online fraud. December 14, 2007 * Fear of online Crime. December 14, 2007 * Forder J and Quirk, Patrick. “Electronic Commerce and the Law”, Wiley at Chapter 3. * Innovation patent System December 14, 2007 * The innovation patent. Retrieved December 9, 2007 from: http://www.ipaustralia.gov.au/patents/what_innovation.shtml * Jackson, M, 1997. “Data Protection regulation in Australia after 1988”, International Journal of Law, Information and Technology, 5: 158-191 * Lessig, Lawrence, 1990. “Code and other laws of cyberspace”, New York: Basic Books * Merges, R.P, 1997. “The end of friction? Property Rights and contracts in the Newtonian world of online commerce”, 12 Berkeley Technology Law Journal, Available online at http://www.law.berkeley.edu/journals/btlj/articles/vol12/Merges/html/text.html * National Privacy Principles. Retrieved December 9, 2007 from: http://www.privacy.gov.au/publications/npps01.html * Privacy Act of 1998, Retrieved December 8, 2007 from: http://scaleplus.law.gov.au/html/pasteact/0/157/top.htm * Section 120 of the Trade Marks Act of 1995. retrieved December 9, 2007 from: http://www.austlii.edu.au/au/legis/cth/consol_act/tma1995121/s120.html * Section 52 of the Trade Practices Act of 1974. December 12, 2007 http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/s52.html * The examination process. Retrieved December 8, 2007 from: http://www.ipaustralia.gov.au/patents/process_examination.shtml * What is a patent? December 14, 2007 www.ipaustralia.gov.au/patents/what_index.shtml Read More