Rodney D. Ryder [email_address] Issues in Electronic Commerce: Jurisdiction

Introduction - Structure Part 1 – Jurisdiction: fundamental concepts International Issues Basic concerns Law and practice in India Part 2 – Jurisdiction and the World Wide Web The Legal Structure Case Notes on Best Practice

Part 1 – Jurisdiction: fundamental concepts

International Issues

Basic concerns

Law and practice in India

Part 2 – Jurisdiction and the World Wide Web

The Legal Structure

Case Notes on Best Practice

Jurisdiction: Law and Practice in India Concepts and Practice in India

A prologue on the structure: the forum The issue of forum: ‘ Juris’ [law] ‘diction’ [to speak] Which courts will hear the dispute; Equitable resolution; Enforcing contractual terms Enforcement against foreign parties in a global economy

The Rise [and fall?] of Cyberspace <Cyberspace> as introduced by William Gibson [A place governed by its own laws] “ Law and Borders”: the ‘independent’ theory of cyberspace law [David Post and David Johnson, Stanford Law Review] “ a consensual hallucination” [William Gibson, Neuromancer] <Cyberspace> as derived from <cyberkinetics> [the science of communications and control theory] Greek <kybernetes> means ‘steersman’ of a ship

<Cyberspace> as introduced by William Gibson [A place governed by its own laws]

“ Law and Borders”: the ‘independent’ theory of cyberspace law [David Post and David Johnson, Stanford Law Review]

“ a consensual hallucination” [William Gibson, Neuromancer]

<Cyberspace> as derived from <cyberkinetics> [the science of communications and control theory]

Greek <kybernetes> means ‘steersman’ of a ship

The Basic Jurisdictional Problem The simplistic view: is Cyberspace a place? Direct interaction or through an agent [bot]? The arcane exercise: where to sue? Blurring vision: product or service The basic paradigm: the absoluteness of boundaries The relevance of physical location [‘lex situs’] Targeting

The simplistic view: is Cyberspace a place?

Direct interaction or through an agent [bot]?

The arcane exercise: where to sue?

Blurring vision: product or service

The basic paradigm: the absoluteness of boundaries

The relevance of physical location [‘lex situs’]

Targeting

Jurisdiction: the power parameters The ‘balance’ between buyer and seller The expansion of choice Cyber-robots or ‘bots’ The ‘CyberMarket’: a seller’s view Targeting and ‘Contractual Choice’ Intermediary liability: the Digital Millennium Copyright Act, 1998

The ‘balance’ between buyer and seller

The expansion of choice

Cyber-robots or ‘bots’

The ‘CyberMarket’: a seller’s view

Targeting and ‘Contractual Choice’

Intermediary liability: the Digital Millennium Copyright Act, 1998

The Internet and Territorial Analysis The ‘tie’ [link] with Geographical location Tort Law: the lex loci delecti [the place in which the injury occurred as the proper forum] Physical location of contract formation ‘ Unintentional’ contact The United States: the requirement for long arm statutes

The ‘tie’ [link] with Geographical location

Tort Law: the lex loci delecti [the place in which the injury occurred as the proper forum]

Physical location of contract formation

‘ Unintentional’ contact

The United States: the requirement for long arm statutes

Legal Systems under the ‘Raj’: the issue of jurisdiction The meaning of ‘applicable forum’: a reflection of Victorian drafting Civil Procedure Code, 1908 [the ‘Code’]: Section 9 [Courts to try all suits unless barred] Statutes barring legislation [Legislation pertaining to Muncipalities/Panchayats] ‘ the authority to decide a case at all’

The meaning of ‘applicable forum’: a reflection of Victorian drafting

Civil Procedure Code, 1908 [the ‘Code’]: Section 9 [Courts to try all suits unless barred]

Statutes barring legislation [Legislation pertaining to Muncipalities/Panchayats]

‘ the authority to decide a case at all’

Jurisdiction in the United Kingdom: the present The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matter 1968 The Convention governs all civil and commercial matters The Convention applies to “Contracting States”: members of the European Union Implemented into UK law by the Civil Jurisdiction and Judgments Act 1982

The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matter 1968

The Convention governs all civil and commercial matters

The Convention applies to “Contracting States”: members of the European Union

Implemented into UK law by the Civil Jurisdiction and Judgments Act 1982

Jurisdiction: domicile determination Persons: domicile is defined under Sections 41-46 of the Civil Jurisdiction and Judgements Acts 1982 Corporations: For Corporations, the seat of the Corporation is defined as its domicile.

Persons: domicile is defined under Sections 41-46 of the Civil Jurisdiction and Judgements Acts 1982

Corporations: For Corporations, the seat of the Corporation is defined as its domicile.

Brussels Convention: issues in application Jurisdiction greatly simplified. Unless the contract has a jurisdiction clause, jurisdiction will usually lie in the Courts of the Defendant’s domicile.

Jurisdiction greatly simplified.

Unless the contract has a jurisdiction clause, jurisdiction will usually lie in the Courts of the Defendant’s domicile.

Accepted Place of Performance The important exception to the rule of the Defendant’s domicile. A Defendant may be sued in “the place of performance of the obligation in question”. In an e-commerce transaction, failure to perform will often involve failure to pay for the goods or services.

The important exception to the rule of the Defendant’s domicile.

A Defendant may be sued in “the place of performance of the obligation in question”.

In an e-commerce transaction, failure to perform will often involve failure to pay for the goods or services.

Jurisdiction and Consumer Contracts Consumer Contracts: as an exception to the rule of Defendant’s domicile. In UK definition in Unfair Contract Terms Act.

Consumer Contracts: as an exception to the rule of Defendant’s domicile.

In UK definition in Unfair Contract Terms Act.

Regulation of Online Marketing: Distance Selling Henry D. Thoreau: “Trade and Commerce,… made of India rubber…” Advertisement across borders: radio, television and the Internet The ‘International’ presence of the Internet The US Standard: Minimum Contacts Basic assumption: A business has to comply with the laws in any jurisdiction in which it targets customers for its products A perceptible business link: the Yahoo! Case

Henry D. Thoreau: “Trade and Commerce,… made of India rubber…”

Advertisement across borders: radio, television and the Internet

The ‘International’ presence of the Internet

The US Standard: Minimum Contacts

Basic assumption: A business has to comply with the laws in any jurisdiction in which it targets customers for its products

A perceptible business link: the Yahoo! Case

The ‘French’ Yahoo! Case: the Setting Yahoo!, Inc. operates “Yahoo! Auctions” Web Site [http://pages.auctions.yahoo.com] Directed at consumers in the United States For Sale: objects depicting Nazi ideology In France: the act of displaying such objects constitutes crime and is subject to civil liability Suit filed in the Tribunal de Grand Instance de Paris: seeking an injunction and damages The Court Order: “to take all necessary measures…”

Yahoo!, Inc. operates “Yahoo! Auctions” Web Site [http://pages.auctions.yahoo.com]

Directed at consumers in the United States

For Sale: objects depicting Nazi ideology

In France: the act of displaying such objects constitutes crime and is subject to civil liability

Suit filed in the Tribunal de Grand Instance de Paris: seeking an injunction and damages

The Court Order: “to take all necessary measures…”

Online Marketing and Jurisdiction The ‘parameters’ established by Case Law: Yahoo! To Joseph Gutnick Linking and Framing Framing other’s web pages Liability for Trademark Infringement Direct E-mail Marketing: Unsolicited Commercial E-mail [‘Spam’]

The ‘parameters’ established by Case Law:

Yahoo! To Joseph Gutnick

Linking and Framing

Framing other’s web pages

Liability for Trademark Infringement

Direct E-mail Marketing: Unsolicited Commercial E-mail [‘Spam’]

Basic Judicial Requirements: a discussion Jurisdiction over persons: in personam jurisdiction Jurisdiction over property: in rem jurisdiction [‘jurisdiction over the thing’] Jurisdiction over Subject Matter Original and Appellate Jurisdiction On the Internet: Zippo Manufacturing Co. v. Zippo Dot Com, Inc. [1997]

Jurisdiction over persons: in personam jurisdiction

Jurisdiction over property: in rem jurisdiction [‘jurisdiction over the thing’]

Jurisdiction over Subject Matter

Original and Appellate Jurisdiction

On the Internet: Zippo Manufacturing Co. v. Zippo Dot Com, Inc. [1997]

Jurisdiction Clauses: a sample A sample: Each party agrees to submit to the exclusive jurisdiction (of the Indian Courts) as regards in claim or matter arising under this agreement.

A sample: Each party agrees to submit to the exclusive jurisdiction (of the Indian Courts) as regards in claim or matter arising under this agreement.

Jurisdiction Selection in Litigation: a checklist In which jurisdiction is success most probable? In what other relevant jurisdictions can the judgement from the chosen forum be enforced? Does the forum have procedural rules that will help or hinder the matter? Is the chosen jurisdiction relevant? (Will it accept jurisdiction over the dispute?)

In which jurisdiction is success most probable?

In what other relevant jurisdictions can the judgement from the chosen forum be enforced?

Does the forum have procedural rules that will help or hinder the matter?

Is the chosen jurisdiction relevant? (Will it accept jurisdiction over the dispute?)

Jurisdiction: Scope of Applicable Law Material validity Public Policy Formal validity Capacity Performance Consequences of breach/damages Presumptions of law/burden of proof Illegality

Material validity

Public Policy

Formal validity

Capacity

Performance

Consequences of breach/damages

Presumptions of law/burden of proof

Illegality

Jurisdictional issues and ‘cyber crimes’ Issues from the ‘pragmatic’ [relating to the limitations of the medium] to the ‘metaphysical’ [machines without human intervention’] The relevance of physical location Technology and the elimination of physical contact Indian jurisdiction in cyberspace: a ‘simpler’ reading of section 75 [Indian Information Technology Act, 2000]

Issues from the ‘pragmatic’ [relating to the limitations of the medium] to the ‘metaphysical’ [machines without human intervention’]

The relevance of physical location

Technology and the elimination of physical contact

Indian jurisdiction in cyberspace: a ‘simpler’ reading of section 75 [Indian Information Technology Act, 2000]

The convergence legislation The Indian Communications Convergence Bill, 2000

Convergence: the regulatory structure Licensing as well as spectrum management Infrastructure development Content control issues Establishment of a new regulatory authority

The Convergence Bill: the future of the Regulation of Broadcasting Introduced on August 31, 2001 Will Repeal: The Indian Telegraph Act, 1885 The Indian Wireless Telegraphy Act, 1933 The Telegraph Wires [Unlawful Possession] Act, 1950 The Cable Television Networks [regulation] Act, 1995 The Telecom Regulatory Authority of India Act, 1997 Structured regulatory mechanism for Communications – including Broadcasting, Telecommunications and Multimedia

Introduced on August 31, 2001

Will Repeal:

The Indian Telegraph Act, 1885

The Indian Wireless Telegraphy Act, 1933

The Telegraph Wires [Unlawful Possession] Act, 1950

The Cable Television Networks [regulation] Act, 1995

The Telecom Regulatory Authority of India Act, 1997

Structured regulatory mechanism for Communications – including Broadcasting, Telecommunications and Multimedia

The structure of the ‘Act’: notes from the Preamble to facilitate a national infrastructure for an information based society [to enable access] to provide for choice of services [promoting plurality of news, views and information] to establish a regulatory framework for carriage and content of communication [in the scenario of the ‘convergence’ of media] to establish the powers, procedures and functions of a single regulatory and licensing authority [and of the Appellate Tribunal]

to facilitate a national infrastructure for an information based society [to enable access]

to provide for choice of services [promoting plurality of news, views and information]

to establish a regulatory framework for carriage and content of communication [in the scenario of the ‘convergence’ of media]

to establish the powers, procedures and functions of a single regulatory and licensing authority [and of the Appellate Tribunal]

The anatomy of the Bill The creation of an autonomous body with wide-ranging powers: the Communications Commission of India [‘CCI’] Complaints and dispute resolution Spectrum Management Committee Competition and the prevention of monopolies

The creation of an autonomous body with wide-ranging powers: the Communications Commission of India [‘CCI’]

Complaints and dispute resolution

Spectrum Management Committee

Competition and the prevention of monopolies

Convergence: A Critical Analysis

Privacy concerns The dangerous proviso's relate to: surveillance of communications surveillance of computer systems and networks monitoring of employees - internet, phone, drugs testing, genetic testing etc satellite surveillance biometrics and other identification technologies genetic testing Eg in UK: - Human Rights Act 1998 - Telecommunications (Data Protection and Privacy) Regulations 1999 - Regulation of Investigatory Powers Act 2000 - Telecoms Lawful Business Practice Interception of Communication Regs 2000

The dangerous proviso's relate to:

surveillance of communications

surveillance of computer systems and networks

monitoring of employees - internet, phone, drugs testing, genetic testing etc

satellite surveillance

biometrics and other identification technologies

genetic testing

Eg in UK:

- Human Rights Act 1998

- Telecommunications (Data Protection and Privacy) Regulations 1999

- Regulation of Investigatory Powers Act 2000

- Telecoms Lawful Business Practice Interception of Communication Regs 2000

Growth of importance of Privacy Overview - major International and US regulations 1948 UN Universal Declaration of Human Rights 1970 US Fair Credit Reporting Act 1974 US Privacy Act 1976 International Covenant on Civil and Political Rights 1980 OECD Guidelines on Protection of Privacy 1980 US Privacy Protection Act 1995 European Commission Directive on Data Protection 1994 US Communications Assistance to Law Enforcement Act 1996 US Health Insurance Portability and Accountability Act 1998 US Children's Online Privacy Protection Act 1998 European Member States implement Directive 1999 US Financial Services Modernization Act BUSINESS ISSUES HUMAN RIGHTS

Overview - major International and US regulations

1948 UN Universal Declaration of Human Rights

1970 US Fair Credit Reporting Act

1974 US Privacy Act

1976 International Covenant on Civil and Political Rights

1980 OECD Guidelines on Protection of Privacy

1980 US Privacy Protection Act

1995 European Commission Directive on Data Protection

1994 US Communications Assistance to Law Enforcement Act

1996 US Health Insurance Portability and Accountability Act

1998 US Children's Online Privacy Protection Act

1998 European Member States implement Directive

1999 US Financial Services Modernization Act

Current law in India There is no general data protection law in India: Constitution Article 21 Right to life and liberty, interpreted by Supreme Court as including the “right to be let alone” International Covenant on Civil and Political Rights 1966 Article 17: No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Law of privacy (Tort Law) – Action for unlawful invasion of privacy

There is no general data protection law in India:

Constitution Article 21

Right to life and liberty, interpreted by Supreme Court as including the “right to be let alone”

International Covenant on Civil and Political Rights 1966 Article 17:

No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Law of privacy (Tort Law) – Action for unlawful invasion of privacy

Current law in India Information Technology Act 2000 Section 43 (a) Penalty for unauthorised access to a computer system Section 43 (b) - Penalty for unauthorised downloading or copying of data without permission Section 72 - Offence of accessing any electronic record, book, register, correspondence, information, document or other material and, without the consent of the person concerned , disclosing such information to another person

Information Technology Act 2000

Section 43 (a)

Penalty for unauthorised access to a computer system

Section 43 (b) -

Penalty for unauthorised downloading or copying of data without permission

Section 72 -

Offence of accessing any electronic record, book, register, correspondence, information, document or other material and, without the consent of the person concerned , disclosing such information to another person

Current law in India Public Financial Institutions Act of 1993 codifies confidentiality of bank transactions ISPs prohibited from violating privacy rights of subscribers by virtue of the licence to operate granted by the Department of Telecommunications A general data protection law in India? National Task Force on IT and Software Development 1998 Submitted “IT Action Plan” calling for “National Policy on Information Security, Privacy and Data Protection Act for handling of computerised data” but no Act introduced to date

Public Financial Institutions Act of 1993 codifies confidentiality of bank transactions

ISPs prohibited from violating privacy rights of subscribers by virtue of the licence to operate granted by the Department of Telecommunications

A general data protection law in India?

National Task Force on IT and Software Development 1998 Submitted “IT Action Plan” calling for “National Policy on Information Security, Privacy and Data Protection Act for handling of computerised data” but no Act introduced to date

Any questions?

Rodney D. Ryder Anand & Anand email: rodney@preconcept.com Technology, Media and Communications