Analysis of Electronic Commerce Regulations - Coursework Example

Table of Contents Table of Contents i Analysis of Directive 2000/31/EC (the e-commerce directive) 1 What Website needs to include 1 Analysis of Electronic Commerce (EC Directive) Regulations 2002 2 What Website needs to include 2 Analysis of Directive 95/46/EC (the data protection directive) 3 What Website needs to include 3 Analysis of Data Protection Act 1998 3 What Website needs to include 4 How to legally enforce an agreement with the customer 5 A discussion between Clickwraps and Browsewraps 6 Case Laws 8 Conclusion 10 Bibliography 11 Analysis of Directive 2000/31/EC (the e-commerce directive) Directive 2000/31/EC (the e-commerce directive) states that if there are any trades which cannot be determined about the territory of the trade then it should be governed in line with case laws of the Court of justice of the European Communities. It further states that general interest of the community as a whole should be protected and special care should be taken to protect the interest of the minors and human dignity, consumer protection and protection of health should also be taken care of while making a website for ecommerce purposes. CITATION 1SO09 \l 1033 What Website needs to include Further it is stated that public health is the essential part which should be taken care of. In line with this directive it should be noted that the product of yours i.e. Chateau Luton deluxe white wine is perceived to be non compliance with following analysis along with the measures that should be taken care of so these non compliance should be cut off: 1. The website does not state anything about saving the community therefore it is advisable to make a note on the website that minors should not purchase this product. 2. Further the website does not mention a warning which is necessary that over drinking may result in accidents which should be avoided in any case. 3. The website can also restrict people involve in driving not to drink more than the required amount that is permitted. Analysis of Electronic Commerce (EC Directive) Regulations 2002 Electronic Commerce (EC Directive) Regulations 2002 CITATION 1SO09 \l 1033 requires following information to be provided by the service providers: a) name; b) geographic address of establishment c) email addresses and other details d) information about registered trade mark; e) the particulars of the supervisory authority, if any; f) Information about the VAT; g) Prices should clearly mention that either they are inclusive of taxes and delivery cost; The Directive further states as follows: a) Steps for conclude the contract; b) Will the contract which is concluded is accessible and filed or not? c) Technical information for correction of input information; and d) Languages in which it can be offered to conclude the contract. What Website needs to include In the case of your website you are missing following from the requirements as mentioned above: 1. Whether the prices are inclusive of VAT or not; 2. Whether the prices include the delivery cost or not; 3. Email address cannot be found on the website; 4. There is no information about the registered trade mark; 5. Information about the supervisory authority this is governing the site; 6. Further information regarding availability of the contract needs to be disclosed which is not mentioned on the website; and 7. The languages options is also missing on the website as it tends to operate in EU Countries then it the contract should be offered in the other languages as well. Based on the discussion it should be concluded that the website should include further information as required above. Analysis of Directive 95/46/EC (the data protection directive) Directive 95/46/EC (the data protection directive) CITATION 1SO09 \l 1033 states that the flow of personal data from one border to other is being necessitated and facilitated with the introduction of internet transactions and there is no offence. It further states that in order to remove the hurdles involved in the flow of personal data it is advisable that all the states of the commission gets together on a point about the flow of the personal information. Cross border flow of personal data are regulated in a consistent manner community action is required to facilitate these laws. What Website needs to include In order to meet the requirements of this directive the website should mention in its contract that: 1. Data will be stored in Luton whether it is obtained from anywhere. 2. Further it should also mention that how the data will be handled in case of cross border transactions in order to avoid any disputes. Analysis of Data Protection Act 1998 In accordance with the Schedule 1 of Data protection act 1998 CITATION 1SO09 \l 1033 , personal information can be possessed in the one of the following scenario; 1. Information can be obtained for lawful purposes only. 2. Only relevant data may be obtained. 3. Necessary actions are required to ensure that accurate data is obtained 4. Data is not kept for period in excess of required period. 5. Processed in accordance with the right of data as mentioned in the Act. 6. Actions to be taken against unlawful possession of data. 7. Data not to be transferred outside European countries. 2nd Schedule states following criteria for processing of personal data 1. Subject has given permission for possession of data. 2. Data processing is necessary for the purposes of completion of transaction. 3. Processing is necessary to protect the vital interest of the subject. 4. Processing is necessary in order to comply with legal obligations. 5. Legislatively processing is necessary 6. Legitimate interest is fulfilled if the data is processed. 3rd Schedule states following criteria for processing of sensitive personal data: 1. Explicit consent is provided by the subject. 2. Processing is necessary for complying with lawful obligations. What Website needs to include Based on all the three schedules and directive if we analyzed the website under review we may come to following points which are in non compliance: 1. The website should mention in its terms and conditions that information provided by the individual may be processed in order to finalize the contract. 2. The website should further mention that only relevant data is obtained even though there is no irrelevant data on the website but being on the safe side this should also be mentioned. 3. Further the website should mention the period till which data will be possessed and the purpose and lawful obligation for which the data is possessed. 4. Further the website should mention that the data would be kept within Europe and will not be transferred outside Europe for any purpose. 5. The website should also obtain Email address in order to send the confirmation of the order and the receipt through email. Based on the coverage above the website should improve its terms and conditions to get these works done. How to legally enforce an agreement with the customer The website under review does not have any button or check box which states that “On clicking the button I Agree to the terms and conditions as laid down by the Website”. If this sort of button is inserted on the website then the website owner is on the safe side of giving the owner and a bit of legal protection in the following paragraphs we will discuss about this. The main point of any contract to be legal is that both the parties agree to abide by the rules of the contract including the visitor who must abide by the rules and conditions as laid down by the website. CITATION 1SO09 \l 1033 There are two types of agreements that are provided by the website owners: 1. Clickwraps. 2. Browsewraps. A discussion between Clickwraps and Browsewraps CITATION 1SO09 \l 1033 CITATION 1SO09 \l 1033 Clickwraps are the agreements that are easily visible to the user when purchasing or doing some actions and it is necessary for the user to abide by these terms and conditions in order to continue. CITATION 1SO09 \l 1033 By Browsewraps it means that the user browsing website is considered as agreeing to the terms of the website and the terms and conditions are not that much visible to users. If we talk about legal contracts then Clickwraps are legally enforceable by law whereas browsewraps are not. Therefore if we are selling products like these in our website we should give arrangements to be done for inserting Clickwraps on the website currently the website does not have any clickwraps it is in the category of browsewraps. We will discuss more about Clickwraps in order to get an idea what should be done on our website so that a legal contract can be made and the users are forced to enter in a legal contract. CITATION 1SO09 \l 1033 The clickwrap does not mean that a checkbox is provided in the end that I agree to the terms as laid down by the website it also means that the webmaster will have to place a link to terms and conditions then and only then the click wrap will be acceptable by the court as the creation of legal contract between the seller and the buyer. CITATION 1SO09 \l 1033 In legal cases, the courts does not need to know that you have actually read the agreement / terms and conditions or not they think that you have been given a fair opportunity if the link of terms and conditions is placed near the I agree check box on a prominent place. CITATION 1SO09 \l 1033 We can say like this that merely checking the I agree button does not create the contract it also includes the opportunity to the user to read terms and conditions of the website, for this to be done a reasonable notice and opportunity to read the terms and conditions is required i.e. the user can read them without much effort on his part. 1 of the most popular idea which makes it necessary for the user to review the terms and conditions is to insert a java script which does not enable the submit button until the terms are scrolled till the end. In this way it’s sure that the user has reviewed it once or we may say that the matter has gone through the sight of the user at least once. Further courts also requires the website to place on some visible place a notice for the users that they should read and abide by the terms and conditions of the website with the link. The best practice related to this type of agreements that is clickwrap agreements there are best practices related to the mechanism. When a mechanism follows the following then it is considered as following the best practices: 1. The user is shown terms and conditions on a place which is most visible before the user is told to enter in a contract or make a payment. 2. The terms and condition page should be made in normal fonts which are easily readable and utmost care should be taken that no scroll box is presented on the terms and conditions page. 3. The user should be provided with an options to either print the document or / and save / download the copy of the said terms and condition. 4. The option of disagreeing should also be prominently provided and the placement, the font of this button should be same as that of I Agree button. 5. After the user has agreed to the terms and conditions, these are located on website at such a place where user can easily access them. As per conclusion we may say that the website should implement a clickwrap instead of browsewrap due to the following: 1. Courts do not permit browsewraps as legally enforceable. 2. Browsewraps are hidden so it is unfair for the users of the website and cannot be counted as fair practice. 3. Clickwraps are easy to be implemented on the product sales pages. Case Laws 1. This case law is related to Data Protection Act, 1998. In this particular case there is an instance that the Data was obtained without the permission of the subject which Court resolves clearly as break of the Data Protection Act, 1998. In case of our website we should also be careful regarding obtaining any information which is not known to the user. We should provide user an opportunity about being informed after that the data may be obtained to be in line with Data Protection Act. CITATION 1SO09 \l 1033 2. This is a case regarding acceptance of terms and conditions on the website. The case is that the plaintiff claims that the defendants has made ‘screen-scrapping’ from its website which is against the terms of the website. Whereas the defendants claim that there is no legal contract between the website owner and the defendants. The court decided that the terms of the website are binding on the plaintiff therefore the plaintiff claim was accepted. CITATION 1SO09 \l 1033 3. In the case of Giuseppe Manfredi and Regione Puglia the court rules as “For the years 1991 and 1992, Article 6(1) of Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organisation of the market in wine, as amended by Council Regulation (EEC) No 1325/90 of 14 May 1990, prohibited new plantations of vines intended for the production of table grapes.” CITATION 1SO09 \l 1033 As we are growing vine in London but we should be careful for future expansion based on the points mentioned above. 4. In the case of SOVIO WINES LIMITED Claimant and THE FOOD STANDARDS AGENCY (Wine Standards Branch) 1st Defendant And RICHARD PERKINS 2nd Defendant CITATION Giu98 \l 1033 the court held as that the bottles of wine were wrongly labeled as they do not fall under the definition of Wine as accepted in EU and UK. We should be careful regarding the product being sold on the internet as it did not do the non compliance of the legislation as mentioned above. Conclusion Based on the discussion above Mr. Bill should have to follow the rules of Directive 2000/31/EC (the e-commerce directive) with regard to mentioning on the website about saving the community, some social warnings and restrictions. If these are followed then the website will get in compliance with said directive. Website also needs to include information by taking into account Electronic Commerce (EC Directive) Regulations 2002 particular information which is missing is about VAT pricing whether VAT is included or not, delivery cost, email addresses for contact, trademark information, information about supervisory authority, information about contract availability and translation of contract in other languages. There is a need for the website owner to study about distance selling regulations which is not covered in this report which will be covered by another expert. That person is an expert in distance selling regulations. So the directives related to Distant selling of UK and EU is not covered in this report. Further the website will need to cover the aspects of epayment and payment gateway which will also be considered in other report. Website is also needs to follow Directive 95/46/EC (the data protection directive) which needs amendments in the website like places where data will be stored, handling of data in cross border transaction. If the website is complied with the requirements as laid down in Directive 95/46/EC mentioned above then the website will be fit to be launched. Website is also subject to Data Protection Act 1998 which raises issues like processing of data on website, no irrelevant data is obtained, time period for possession of data, places to be keep data, email address for sending confirmation. A part from these legislative we further conclude that the website should include Clickwraps to be accepted by the users at a prominent place as Clickwraps are more acceptable form of user agreements. The Clickwraps are more accepted by Courts as well. If care is taken for these items then the website will be in compliance with legislative requirements. Bibliography CITATION Eco \l 1033 : , (Ecommerce Directive), CITATION Ele \l 1033 : , (Electronic Commerce (EC Directive) Regulations 2002), CITATION Dir \l 1033 : , (Directive 95/46/EC (the data protection directive)), CITATION aaa \l 1033 : , (Data Protection Act 1998), CITATION How \l 1033 : , (How to Create a Legally Binding Contract Online), CITATION Are \l 1033 : , (Are Click Wrap Agreements Enforceable and What in the World Are They?), CITATION End \l 1033 : , (End user license agreements: New Developments in Shrink-Wraps, Click-Wraps and Browse-Wraps), CITATION Def \l 1033 : , (Definition of Clickwraps), CITATION Fra \l 1033 : , (Friedman), CITATION Spe01 \l 1033 : , (Specht v. Netscape Communications Corp. and America Online, Inc., 2001), CITATION Wha \l 1033 : , (What is browsewrap agreements?), CITATION Dat \l 1033 : , (Data Controller breaches data protection law in regard to use of covert CCTV footage), CITATION Rya10 \l 1033 : , (Ryanair Ltd -v- Billigfluege.de GMBH, 2010), CITATION Giu98 \l 1033 : , (Giuseppe Manfredi and Regione Puglia, 1998), CITATION 1SO09 \l 1033 : , (SOVIO WINES LIMITED Claimant and THE FOOD STANDARDS AGENCY (Wine Standards Branch) 1st Defendant And RICHARD PERKINS 2nd Defendant, 2009), Read More