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  • 1.
    • Internet and some
    • legal issues
    David Billard [email_address] CEENet Workshop on Network Technology Budapest, Hungary, August 18-28, 2000
  • 2. Outline
    • Introductory remarks
    • The design of your web site
    • Protection of the vendor
    • Protection of the client
    • A dispute arises in the Internet
    • Which court decides, which law applies?
    • (online) Alternative Dispute Resolution protocols
    • Conclusion
    • References
  • 3. Who I am
    • I am not a lawyer
    • I am not a judge
    • I am not a criminal (yet)
    NOT Who I am
    • I hold a Ph. D. in Computer Science (OS & DB)
    • I am working at the University of Geneva (formerly Telecom and OS research group, now heading computer developments)
  • 4. Why am I talking about legal issues?
    • I see the Internet as a kind of human society
    • I feel I belong to this society
    • Therefore I want to know which are its rules
    • Or the rules that will (perhaps) come
    • I’m interested in the behavior of people
    • I am a CS expert to the French courts
    • The Online Alternative Dispute Resolution protocols generate interesting CS problems
  • 5. History of law & Internet
    • Three periods:
      • Internet, and electronic transactions, is a revolutionary and entirely new system, requiring the creation of a whole set of new laws
      • The lawyers begun to understand the Internet technology and said that the existing laws were sufficient , with little change required
      • Now: even though a large number a laws can adapt to the IT, some new ad hoc laws must be created
  • 6. Outline
    • Introductory remarks
    • The design of your web site
    • Protection of the vendor
    • Protection of the client
    • A dispute arises in the Internet
    • Which court decides, which law applies?
    • (online) Alternative Dispute Resolution protocols
    • Conclusion
    • References
  • 7. Is your web site « legally » correct?
    • A (web) site offers a product or a service (paying or free)
    • When will the user be deemed to have given his or her consent?
    • Or, more simply said: when has the user agreed with the terms and conditions of the vendor?
    • To agree, the user must have been given the possibility to consult the general terms of the « contract ».
  • 8. The consent of the user
    • The vendor has « rights » on the client:
      • the client will pay the product or service
      • the client will comply with the rules for the usage of the product/service
      • ...
    • The client has « rights » on the vendor:
      • the vendor will deliver the product
      • the product will be conform to the description
      • the delays will no be longer than stated
      • ...
  • 9. The consent - Study of some sites (1)
    • Sites with no consent needed
    • Example: your son or daughter accesses by error a web site with pornographic contents
    Here imagine a nude woman Here imagine a lot of nude women
  • 10. The consent - Study of some sites (2)
    • Sites with no consent needed:
      • the client download the page content
      • the client is not supposed to know a priori what he will download
      • the client may download « illegal » contents
    • The design of the vendor’s site has failed to protect the client (perhaps with intend)
  • 11. The consent - Study of some sites (3)
    • The consent, as a disclaimer.
    • It is useless
  • 12. The consent - Study of some sites (4)
    • Consent by presentation of the general terms and conditions before getting access to the product
  • 13. The consent - Study of some sites (5)
    • The consent as a non-obligatory link
    General terms and conditions Commitment of the purchase
  • 14. Consent - Commitment (1)
    • Processing of an Electronic Commerce order:
    Browsing of the web site Choice of product(s) Giving payment information Downloading product time Consent = I agree with the general terms and conditions Commitment = I agree to purchase the product Consent Consent Consent Commitment
  • 15. Consent - Commitment (2)
    • The consent must precede the commitment
    • The commitment is an atomic action
    • Atomic?
    • If a failure arises before the commit point:
      • The system (when recovering) must undo (forget) what has been done
    • If a failure arises after the commit point:
      • The system (when recovering) must ensure that the order will be fulfilled
  • 16. Consent - Commitment (3)
    • How to implement atomic actions?
    • By using transaction processing systems
    • Transactions are ACID:
      • Atomicity
      • Consistency
      • Isolation
      • Durability
      • proof of the transaction’s commitment
      • proof of the messages exchanged
      • non-repudiation
  • 17. Consent - Commitment (4)
    • The web site must lead the user to go through the « consent » area before finalizing the purchase
    • Or at least the web site must offer the opportunity
    • The back-end system must implement transaction processing, mostly found in advanced database systems (Oracle, DB2, PostgreSQL, …)
  • 18. Data protection
    • Very hot topic:
    • What a vendor will do with your data (name, address, telephone number, color of pants, …)?
    • Under European law, the customer is protected: Access rights to data, communication of what a vendor stores in your record, etc.
    • Under common law (US, UK, …): the customer just count on the good will of the vendor
  • 19. Outline
    • Introductory remarks
    • The design of your web site
    • Protection of the vendor
    • Protection of the client
    • A dispute arises in the Internet
    • Which court decides, which law applies?
    • (online) Alternative Dispute Resolution protocols
    • Conclusion
    • References
  • 20. A dispute arises
    • You are the vendor and your client did not pay (credit card refused)
      • Which court decides?
      • Which law applies?
      • How the judgement is enforced?
    • You are the client and the vendor did not sent the product, or the product has problems
      • Which court decides?
      • Which law applies?
      • How the judgement is enforced?
  • 21. Back to the general terms and conditions (1)
    • The information about court and applicable law should be found in the web site and be part of the consent area .
    • Most EC sites do not have any mention at all
    • In that case, it is more than unclear what you (as a vendor or a client) can do in case of dispute.
  • 22. Back to the general terms and conditions (2)
    • Some EC sites deliberately restrict themselves to a geographical area
      • For example DELL has a web site for each country into which it has an official existence.
      • Even though in Europe all the calls are transmitted at the headquarter in Ireland
    • Other sites refer to terms about the use of the site
      • For example Intellectual property rights or
      • liability of the information one can find on the site
  • 23.
    • The content of choice of law and choice of court clauses
      • Only choice of law clauses
      • «  Orders are subject to approval by West in Eagan, MN and will be governed by Minnesota law.  »
      • Both choice of law and court provision (always in favor of the law and courts of the vendor)
    Back to the general terms and conditions (3) Applicable law, jurisdiction: this domain name policy shall be governed by and construed according to Swiss law . The courts of Zürich shall have exclusive jurisdiction to settle any disputes that may arise out of or in connection with this domain name policy.
  • 24. Admissibility / Enforceability (1)
    • Is a choice of law and court clauses admissible or enforceable (as a matter of principle)?
    • Business to consumer transactions
      • Under European law, exclusive pre-dispute choice of court clauses are unenforceable
      • pre-dispute choice of law clause is enforceable only if the consumer is not deprived of its country ’s protection
      • Principle of the consumer protection
      • BUT only the consumer who contracts at home is protected (geographical limitation)
  • 25. Admissibility / Enforceability (2)
    • Business to business transactions
      • Principle of « party autonomy » : the choice of law and court clauses is admissible and enforceable
      • Deny of justice for SMEs?
        • SMEs are not entitled to consumer protection
        • A SME may not be able to go to the court if it is too far away
  • 26.
    • Under European law, the choice of court clauses must be in writing (a pen and a paper)
      • Any communication by electronic means which provides a durable record of the agreement shall be equivalent to « writing ».
      • [a choice of court] agreement […] shall be valid as to form, if it was entered into or confirmed
        • a. […];
        • b. by any other means of communication which renders information accessible so as to be usable for subsequent reference;
    Functional equivalence (1)
  • 27. Functional equivalence (2)
    • To really achieve a functional equivalence:
      • Confidentiality of data (Privacy) by means of e.g. encryption (e.g. Secure Socket Layer - SSL)
      • Authentication of user by means of e.g. authentication certificates delivered by a "Thrustee »
      • Non-Repudiation schemas, based on the authentication of user.
      • Recovery procedures, based on time-outs and logging.
    • National PKI must exist and be recognized
  • 28. Dispute resolution
    • Reproaches to traditional courts:
      • long delay in processing a case
      • difficulty to address international disputes
      • heavy cost (long delay)
    • Alternative Dispute Resolution Protocols (ADR) have been proposed
    • The traditional courts are always there if the ADR fails
  • 29. Benefits of ADR protocols
    • Rapid processing of a case
    • Particularly well adapted to small claims
    • Several protocols:
      • negotiation
      • mediation
      • arbitration
    • Possibility of Online processing
    • The ADR are not limited to disputes in the Internet
  • 30. Example of ADR: ICANN UDRP
    • Uniform domain-name Dispute Resolution Policy
      • the policies are the terms and conditions in connection with a dispute
      • The rules (more than 100!) are made by ICANN to administrate the UDRP
      • The supplementary rules are the private rules of each dispute resolution service provider
        • CPR Institute for Dispute Resolution [CPR]
        • Consortium [DeC]
        • The National Arbitration Forum [NAF]
        • World Intellectual Property Organization [WIPO]
  • 31. ICANN UDRP List of proceedings
  • 32. ICANN UDRP not online
    • At best the dispute resolution service provider offers to fill online the form to file a complaint
    • At worse it just gives a HTML page that the user is requested to print, fill and send by postal service
    • The processing of the complaint is done by ordinary means (phone, fax, etc.)
    • From dec. 1999: 1572 complaints concerning 2725 domain names
  • 33. UNCC processing of claims (1)
    • United Nations Compensation Commission (UNCC)
    • Created in 1991 (subsidiary organ of the UN Security Council)
    • Mandate : to process claims and pay compensation for losses and damages suffered as a direct result of Iraq's unlawful invasion and occupation of Kuwait
  • 34. UNCC processing of claims (2)
    • Since 1991, UNCC has received approximately 2.6 million claims amounting to US $300 billion
    • This volume of claims (and the accompanying documentation) requires approximately 3,500 square meters of storage space in various locations
    • Final payments in 2003
  • 35. CRT processing of claims
    • Claims Resolution Tribunal (CRT) in Zürich established to resolve all claims to the published dormant accounts (Word War II) of non-Swiss bank clients
    • Number of dormant accounts: 5,570
    • Claims received by the Tribunal: 9,470 concerning 2,306 accounts
    • Number of Claimants: 8,000
  • 36. Online ADR protocols
    • Requirements:
      • Common workspaces, repositories and collaborative environments
      • Secure processing of cases
      • Authentication of users
      • Workflows
    • Anyway, we need this kind of tools also for other purposes
  • 37. Scholarly Electronic Publishing
    • Repository of papers
    • Repository of authors
    • Repository of reviewers
    • Workflow for the peer reviewing of papers
    • Online submission of papers
    • Authentication of authors, reviewers
  • 38. Outline
    • Introductory remarks
    • The design of your web site
    • Protection of the vendor
    • Protection of the client
    • A dispute arises in the Internet
    • Which court decides, which law applies?
    • (online) Alternative Dispute Resolution protocols
    • Conclusion
    • References
  • 39. Conclusion (1)
    • We need badly a practical (technical) handbook for the building of legally-correct web sites
    • Express wording of the general term (example):
      • ” this order and all aspects of the contractual relationship between the parties are governed by the general terms, which are made part of this contract and can be accessed by clicking here”
  • 40. Conclusion (2)
    • The wording is not a contract, therefore before placing an order, the user should click on a field (example):
      • “ I accept the general terms”
  • 41. Conclusion (3)
    • A user (example):
      • must have the possibility of clicking on a field to scroll through the terms;
      • that field must be well positioned and easy to locate;
      • the presentation of the general terms must be clear and simple (no small illegible print, sufficient space between paragraphs, headings, etc…);
      • the general terms should be drafted in the same language as the site, because the user who fills in blanks is expected to understand that language.
  • 42. Conclusion (4)
    • We need online alternative dispute resolution protocols
    • To whom one can access through a single click
    • Example: Ebay
  • 43. Some references
    • The Geneva round table (September 1999), organized in collaboration with:
    • Catherine Kessedjian
      • Professor of Law at the University of Paris II and
      • Deputy Secretary General at the Hague Conference on Private International Law, The Hague, Netherlands
    • Gabrielle Kaufmann-Kohler
      • Professor, faculty of Law, University of Geneva and
      • Lawyer, Schellenberg Wittmer, Geneva
  • 44. Some references
    • ANDREEVSKA Elena , Director of the International Law Department, Ministry of Foreign Affairs of the R. of Macedonia
    • KOCOT Wojciech , Senior Lecturer, Warsaw University, Law Faculty
    • MIHAI Lucien , Arbitrator, President of the Romanian Constitutional Court
    • GEORGIOU-ANTONIOU Evie , Counsel for the Republic, Law office of the Republic of Cyprus
  • 45. Some references
    • Khatarina Boele-Woelki and Catherine Kessedjian, « Internet, which court decides, which law applies? », Kluwer Law International, 1998.
    • The UNCITRAL Model Law for Ecommerce ( United Nations Commission on International Trade Law