Media Law 2015 Electronic Commerce

Transcription

1 Media Law 2015 Electronic Commerce Lydia Lundstedt, L.L.M March 30, 2015 Definition of E-Commerce There is no universally agreed definition of electronic commerce. However, in the WTO Work Programme on Electronic Commerce "electronic commerce" is understood to mean the production, distribution, marketing, sale or delivery of goods and services by electronic means. A commercial transaction can be divided into three main stages: the advertising and searching stage, the ordering and payment stage and the delivery stage. Any or all of these may be carried out electronically and may therefore be covered by the concept of "electronic commerce". WTO Work Programme on Electronic Commerce Definition of E-Commerce Electronic Commerce refers generally to all forms of transactions relating to commercial activities, involving both organisations and individuals, that are based upon the processing and transmission of digitised data, including text, sound and visual images. OECD, Electronic Commerce Opportunities and Challenges for Government Examples of E-Commerce Goods/services bought online for delivery offline: Clothes, Toys, Books, Electronic goods, CD/DVDs Holidays, Concert/festival tickets, Cinema tickets, Travel tickets, Insurance Goods/services bought online for delivery online: On-line information & commercial communications, entertainment services Music/video downloads or streaming, online newspaper Basic intermediary services Internet access, hosting, search and retrieval providers Types of E-Commerce Advantages & Disadvantages According to the object of commerce Goods Services Intangibles According to the parties involved B2B, B2C, C2C Global access Efficient Anonymity Legal uncertainty Dematerialization Anonymity 1

2 E-Commerce International Cooperation Privacy Contract law Market law Private sector governance laissezfaire, practical, efficient, competitive solutions Intellectual Property E-Commerce Taxation Intergovernmental governance backed by political legitimacy Private international law ICANN Internet Corporation for Assigned Names and Numbers Non-profit, private-sector corporation Technical coordination body for the Internet Uniform Domain Name Dispute Resolution Policy UDRP i) domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) registrant has no rights or legitimate interests in respect of the domain name; and (iii) domain name has been registered and is being used in bad faith World Trade Organization WTO International organization that deals with the rules of trade between nations General Agreement on Tariffs and Trade (GATT) General Agreement on Trade Services (GATS) Trade Related Aspects on Intellectual Property Rights (TRIPS) Work programme on electronic commerce UNCITRAL United Nations Commission on International Trade Law Enhancing legal security and commercial predictability for international contracts 2

3 UNCITRAL Instruments 1996 UNCITRAL Model Law on Electronic Commerce 2001 UNCITRAL Model Law on Electronic Signatures 2005 UN Convention on the Use of Electronic Communications in International Contracts 1980 UN Convention on Contracts for the International Sale of Goods (CISG) UNCITRAL Non-discrimination Technological neutrality Functional equivalence WIPO World Intellectual Property Organization 1996 Copyright Treaty WPPT Performances and Phonograms Treaty Joint recommendation on the protection of marks and other signs on the Internet Hague Conference on Private International Law Intergovernmental organization Unify private international law rules 1999 Draft Hague Convention on jurisdiction and the effects of foreign judgements in civil and commercial matters 2005 Hague Choice of Court Convention (Not yet in force) EU Instruments E-Commerce Directive 2000/31/EC Directive on Electronic Signatures 1999/93/EC Consumer Rights Directive 2011/83/EU Infosoc (Copyright) Directive 2001/29/EC Directive on privacy and electronic communications 2002/58/EC Directive on processing of personal data 95/46/EC EU Regulation no No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels recast) EU Regulations on applicable law (Rome I and Rome II) Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market Swedish Act on Electronic Commerce and Information Society Services (2002:562) (SECL) UK The Electronic Commerce (EC Directive) Regulations 2002 German Telemedia Act

4 E-Commerce Directive Aim: free movement of Information Society Services, in particular electronic commerce Approximates national provisions w/ respect to Information requirements Commercial communications Electronic contracts Intermediary liability Definition of Information Society Service Any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, at the individual request of a recipient of a service E-Commerce Directive Does not apply to: Taxation Data protection Cartel law Gambling Covered by definition Marketing/Selling goods or services online internet, social media Offering online information or commercial communications even if not remunerated by those who receive them Tools allowing for search, access and retrieval of data Transmission, access, hosting services Video-on-demand Provision of commercial communications by electronic mail Marketing/selling through texting and interactive TV Marketing/selling of mobile content services Not covered by definition Delivery of goods as such or the provision of services off-line Television and radio broadcasting Near-video on-demand services Telefax/telex services by natural persons acting outside their trade, business or profession even for conclusion of contracts C2C E-Commerce Directive No prior authorization needed art 4.1 Without prejudice to authorization schemes which are not specifically and exclusively targeted at information society services 4.2 4

5 Country of Origin principle Control in member state of establishment for all Community citizens - Art 3(1) ECD, 5 SECL Receiving member state may not restrict - Art 3(2) ECD, 3 SECL Derogations for public policy, public health, public security, protection of consumers - Art 3(4), 3 2 para SECL Before taking measure, request MS at country of origin to intervene Art 3(3), 4 SECL Establishment Pursuit of economic activity Fixed establishment Indefinite period Technical means and technologies do not in themselves constitute establishment Fraude á la loi Coordinated Field art 2(h) Country of origin principle only applies to requirements within coordinated field Taking up of the activity of an ISSP qualifications, authorization, notification Pursuit of the activity of an ISSP E.g. requirements concerning quality or content of service including advertising and contracts or liability of a service provider Coordinated Field art 2(h) NOT the goods themselves safety standards, labeling obligations, or liability for goods NOT the delivery of goods NOT services not provided by electronic means Derogations from the Internal market principle Intellectual property rights Freedom of the parties to choose the law applicable to their contract Contractual obligations concerning consumer contracts the permissibility of unsolicited commercial communications Information requirements - art 5 ECD, 8-9 SECL Name of service provider Geographical address of establishment Contact details including which allow it to be contacted rapidly and communicated with in a direct and effective manner Organization number, VAT registration number Supervisory authority if relevant If prices are given clear and unambiguous indicate whether tax and delivery costs are included 5

6 Commercial Communication art 6 ECD Identifiable as such Natural or legal person on whose behalf made clearly identifiable Promotional offers, competitions and games must be clearly identifiable as such and their conditions easily accessible and presented clearly and unambiguously Unsolicited Commercial Communications - art 7 ECD Identifiable as such Respect for opt-out registers Directive on privacy and electronic communications 2002/58/EC Prior consent required for automatic calling machines, fax or electronic mail to natural persons unless existing customer E-contracts art 9 ECD E-contracts must be possible Requirements must not create obstacles nor result in such contracts being deprived of legal effectiveness and validity Permissible exceptions real estate transfers, suretyship contracts, family law contracts E-contracts: info requirements art 10 ECD, SECL Information to be provided clearly, comprehensibly and unambiguously and prior to the order being placed Technical steps to conclude a contract Whether or not the concluded contract will be filed by the service provider and whether it will be accessible Technical means to identify and correct input errors prior to order Possible contract languages Info on codes of conduct and how accessed electronically B2B may agree otherwise Contracts concluded exclusively by excluded Contract made available in way that it can be stored and reproduced Consumer Rights Directive 2011/83/EU Swedish Act on Distance and Off- Premises Contracts (2005:59) UK The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 German Act on the Implementation of the EU Consumer Rights Directive 2013 Article 6 CRD Information requirements for distance and off-premises contracts trader s telephone number, fax number and address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently 6

7 Article 6 CRD Information requirements for distance and off-premises contracts the total price of the goods or services inclusive of taxes... as well as, where applicable, all additional freight, delivery or postal charges and any other costs... If info not provided seller bears cost Article 8 CRD Formal requirements for distance contracts Information about the right of withdrawal including that consumer must bear cost of returning the goods If info not provided seller bears cost Placing the order art 11 ECD Acknowledge receipt of order without undue delay and by electronic means Order and acknowledgement deemed received when addressed party is able to access Make available effective and accessible technical means to identify and correct input errors, prior to the placing an order B2B may agree otherwise Contracts concluded exclusively by excluded Article 8 CRD Information requirements for distance and off-premises contracts Information about the characteristics, price and duration of the contract have to be given prominently directly before the consumer places her order. Consumer must explicitly confirm that the order implies an obligation to pay by activating a button or similar function If the trader does not comply, the consumer is not bound Placing the order art 11 ECD Contract law neutral Order Offer Acknowledgement Accept Contract formation depends on the applicable contract law Exemptions from Liability for Intermediary service providers Horizontal nature Criminal and civil liability Injunctions possible Stop or prevent infringements Disclose IP addresses 7

8 Intermediary Mere technical, automatic and passive nature No knowledge or control over information Mere conduit art 12, 16 SECL Does not initiate the transmission Does not select the receiver Does not select or modify the information Caching art 13 ECD, 17 SECL Automatic, intermediate and temporary storage Sole purpose: Transmission more efficient Hosting art 14 ECD, SECL Storage of information No knowledge or awareness of illegal activity or information Diligent economic operator standard Acts expeditiously to remove or to disable access upon knowledge or awareness No general obligation to monitor art 15 No general obligation to monitor the information which they transmit or store all the data each of its customers to prevent any future infringement No general obligation to monitor art 15 Fair balance between the protection of IPR and the protection of the fundamental rights of individuals who are affected by such measures ISP ISP s customers 8

9 Jurisdiction: where to sue Member state of domicile Consumer contracts- Consumer may sue in her own domicile or domicile of contracting party Consumer may only be sued in her own domicile Consumer contracts Between a consumer and a professional Purpose of contract outside consumer s trade or profession Professional pursues or directs commercial or professional activities to consumer s MS Contract falls within the scope of such activities Directs such activities Seller targets consumers in the MS Mere accessibility is not enough Interactiveability of website not decisive Directs such activities: factors Mention MS by name on webpage Use of internet referencing service Mention of telephone numbers with int l code Use of a top-level domain name Allows consumer to use different language and currency International nature of the activity or mention of int l clientele Law applicable to consumer contracts Favors the consumer Consumer s law applies Questions? Parties may choose applicable law but may not deprive consumer of mandatory rules in consumer s habitual residence Thank you for listening! Lydia.lundstedt@juridicum.su.se 9