S719a

Local e-commerce issues – where ICANN's jurisdiction ends and e-commerce begins Theresa Swinehart Counsel for International Legal Affairs ICANN 19 July 2002

Where does e-commerce begin…
E-commerce, whether indirect or direct, is a layer (or several) above the actual infrastructure. It can consist of any range of activities unique to the needs or demands of specific consumer or user groups.
E.g., On-line business activities
E.g., On-line information sources

Why care about emerging legal and regulatory frameworks?
There is an expression that arose from old western movies – “where the pavement ends and the West begins”
The Internet and emerging e-commerce has created new and emerging business and legal challenges
Dot ‘com’ companies challenged traditional business models
E-commerce, whether direct or indirect challenges legal and regulatory frameworks in which they’re developing
Have seen much activity in Europe, and beginning to see more in other regions of the world.

Why care?….
Local policy and regulatory issues impact operations on the Internet
Each country or distinct economy has unique issues, distinct to respective laws, cultures, perspectives.
Legal frameworks impact current and future use and functionality of the Internet and and the benefits of e-commerce
That is, the laws in tangible world apply on-line, and often new ones for on-line are created.

Interest by industry and legislators
Impact is on all aspects relating to e-commerce, that is conducting some for of business on-line.
Impacts consumers, and operational costs.
Perpetuated by Internet explosion
Social awareness
Consumer demands
Solutions to challenges – some technical, much private sector, and some legislative
National, international, regional.
The recipe to allow continued development and use

Global e-commerce issues – jurisdictional distinctions

Issue areas -- examples
Authentication
Privacy and data protection
liability and responsibility for illegal acts, including content issues
Cybercrime
Others

Authentication
Authentication of users
E.g, signing, certificates
Uses include
verification of source in communication
authentication of data holders for data protection purposes
Issues include:
Mutual recognition and inter-operability
Responsibilities and Liabilities
Varying legal recognitions of online authentication
Opportunity for any business or one national source

Data Protection [Privacy]
Protection of individuals with regard to the processing of personal data and on the free movement of such data.
Personal data ranges from name, address, other.
Collection, use and transmission of personally identifiable data –
Collection on websites, customers, users, employees.
Use for purposes other than intended
Transferred by company, customers, or others to another party our third country.

Data Protection cont.
Transfer of data to a third country
Impact on companies, consumers, users
Marketing
Customer service
Employees
Solutions
Safe harbor areas (abide by mutually approved principles)
Opt-in versus opt-out

International Copyright Protection
International is Copyright protection on-line
WIPO Copyright Treaties
National Implementation
Digital Millennium Copyright Act
EU E-Commerce and Copyright Directives
Responsibilities and Liabilities
Transmitting content
Caching content
Hosting of content

International Copyright Protection cont…
Main criteria in determining responsibilities and liabilities
Threshold of knowledge or control
Where did the content come from
Model – Notice and Takedown
Transmission – merely relay it. Can’t monitor
Hosting – if proven to have knowledge, then take down
Notice
indemnification

Content – transmissions and hosting
Related to the international copyright debate came the discussion of illegal or harmful content.
But problem – what is legal in one jurisdiction, may be illegal in another.
E.g., Yahoo case, Google case
Or advertising -- Lands End in Germany
Attempted solutions:
Companies part of connection – either ISP, registry, often sought to monitor
Introducing a gTLD that is only for one content area, such as .kids – not feasible, what is one parent’s view as appropriate for their child may not be that of another.

Content – transmissions and hosting
Challenge –
enforceability
limited applicability to relevant jurisdiction
cost goes to consumer
Solutions
notice and takedown
watch groups
content rating
It is that content is allowed and encouraged to develop – consumers access sites where there is content, while global, why not have the source local.

Cybercrime
Recent developments seen in Europe, with the Council of Europe, European Commission, United States, Australia, South Africa, etc.
Cybercrime convention seeks to
harmonize domestic criminal substantive law in the area of cyber-crime
provide domestic procedures to investigate and prosecute offences committed by means of a computer system or evidence in relation to electronic form
set up a fast and effective regime of international cooperation.

Cybercrime – cont.
Issues and Impact
Interception
Data Retention
Cost Reimbursement
Corporate Liability
Protection when cooperating with law enforcement
Privacy/Due process

Intellectual Property
Copyright
protection on-line
Trademark
protection in global market
domain name and use of trademarks
Patents

Conclusions...
Industries (current and emerging), Internet, e-commerce, opportunities, and consumers impacted
Main challenges to substantive issues
Avoid patchwork of laws, policies, etc.
self regulatory v. legislative solutions
Technical reality …

Conclusions cont.
These are new and emerging areas in the e-commerce legal field, they have to do with the outcome of using the Internet for all it has to offer.

S719a

by ecommerce

Accessibility

Categories

Upload Details

Usage Rights

Statistics

S719a Presentation Transcript