interactive Activity

Identify one issue from the weekly reading and create a Legal Issue Brief.

Title (Issue in 2-5 words)

Student Name

Issue (1-3 sentences)

Facts (3-4 sentences)

Student position (2-4 sentences)

Rationale: (5-7 sentences)

Privacy and Data Protection
in Cyberspace
LAW 402: LAW OF E-COMMERCE
UPON COMPLETION OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
•Identify and explain several ways antitrust laws
have been applied to online activities.
•Describe laws that protect privacy in
cyberspace.
•Interpret and summarize common security
issues that arise in an e-commerce transaction.
PRIVACY
•Privacy means different things to different individuals and in
different contexts.
•Its importance varies from individual to individual, community to
community, organization to organization and government to
government.
•Technology combined with social, economic and political factors has
raised concerns for those concerned with government, enterprise
and personal freedom.
INFORMATION FREEDOM
•Freedom of expression and communication of ideas has
been deemed a universal human right.
•The right to privacy and the confidentiality of
communications in addition to protection of honor must
also be protected.
•Electronic communication and storage of data have greatly
impacted these rights.
DIGITAL DATA STORAGE
•Gone are the days of paper data storage and
consideration of practicality issues regarding the
amount of room needed to store data.
•Digital Age: data can be stored in operating systems.
•Ease of storage allows public and private bodies to
collect and store a larger amount of data (and
personal information) than ever before.
TWO TYPES OF PRIVACY:
1. Information privacy: refers to the ways in which information is
gathered, recorded, accessed and released.
• The multitude of recording and storage options has become
a serious issue for regulation and control
2. Personal privacy: refers to privacy of the person
• Can be invaded by those seeking to photograph, film and
record in public and private places
ELECTRONIC RECORDING AND PRIVACY
REGULATION
•OECD guidelines noted that the increase in international data
transmission has made it necessary to address privacy in relation to
personal data.
• require that personal information cannot be collected unless the
person concerned consents or is informed of why it is being
collected, who will use it, and in what way it will be used.
DATA PROTECTION
Australian Telecommunications Act 1997 prohibits carriers,
carriage service providers and others of disclosing
information obtained as a result of normal business
activities yet requires carriers to have wiretapping
capabilities in place for ‘lawful’ surveillance.
PRIVACY ABUSE
An increase in the amount of data collected and
stored also leads to an increase in mistakes.
•There have been numerous incidents where privacy
has been invaded and wrongful information made
public at the expense of the individual’s integrity. To
name a few incidents resulting from privacy abuse,
it has caused wrongful lawsuits, loss of
employment, false allegations against reputation.
COOKIES
A process where information from personal computers is
sent to the hosts of websites visited.
• a small text file placed on the user’s hard drive, often
without the user’s knowledge, acting like an
identification card but cannot be executed as code or
transmit viruses.
WEB BUGS
Objects embedded in web pages or email used to
monitor use.
•Provide the IP address of the computer that
procured the web bug, the URL of the web page
with the web bug, the URL of the web bug image
and the date the web bug was viewed in addition
to the type and version of the browser and any
cookie information related to the website where
the bug was located.
As cyberspace grows at a
prodigious rate, so does the
potential for privacy abuse.
Minimization of future privacy abuse entails
monitoring changes occurring in national and
international legal environments.
REGULATIONS IN CYBERSPACE
Should progress in a way that includes national
governance with respect to fundamental human
rights. They should also respect human diversity
with respect to global values.
Jurisdiction and Defamation in
Cyberspace
LAW 402: LAW OF E-COMMERCE
UPON COMPLETION OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
•Describe the issues of choice of law and jurisdiction in
relation to contracts formed over the Internet.
•Critique the limited nature of regulated jurisdiction and the
legality of its control over the unlimited nature of Internet
communications.
•Explain the necessity of applicable jurisdiction rules for
Internet transactions.
JURISDICTION
Legal term for a court’s limitation on determining a dispute.
Issue: The Internet is not owned by anyone but it is regulated by
several.
Internet activities can have consequences, so how is the
jurisdiction determined?
JURISDICTION IN CYBERSPACE
Choice of Law: determining which set of laws apply to
a dispute between parties conducting business across
borders.
• Laws vary from country to country and sometimes
even between regions within a single country.
•Parties may choose to delineate which set of laws
will be in effect as a term of their agreement.
RULES OF PRIVATE INTERNATIONAL LAW
•In a contract, parties can identify the law which applies to the
contract and identify which country’s courts have jurisdiction to hear
the dispute arising from the contract.
•Parties may include an “express choice of law clause”
WHAT IF THERE IS NO “CHOICE OF LAW”
CLAUSE?
•When there is no choice of law clause, courts attempt to
find an implication of choice from the language in the
document.
•When there is not an implication, the contract will be
governed by the law of the jurisdiction most closely
connected.
DETERMINING THE MOST CLOSELY
CONNECTED JURISDICTION
•depends upon the subject matter, nationality or
residence of the parties, the place of performance
and other factors.
•After the proper law is determined, the rules of that
system are applied to the contract.
FORUM NON CONVENIENS
Issue: choice of forum- which court to hear an action.
• Each nation state determines its own laws and procedures- lex
fori- or the law of the forum.
• Each nation’s court system has to determine when and how it
should accept jurisdiction
• It takes into account factors: residence and nationality of the
parties, place or places of business, and the subject matter
DEFAMATION IN CYBERSPACE
Issue: A common view that the Internet is a place for
exercising “freedom of speech” has led far too many
individuals to believe that anything on the Internet should
be immune censorship. Yet, courts have disagreed with this
view, especially when it comes to defamation.
DEFAMATION IN CYBERSPACE
The Problem: there is not a universal definition of
defamation and there is not a set of elements that
define defamation for judiciary concerns.
UN International Covenant on Civil and
Political Rights (ICCPR)
Purpose: provides for freedom of expression
and the right to hold opinions.
•Balances the rights and freedoms with a
respect of “unlawful interference, privacy and
the protection of honor and reputation.”
DEFAMATION REFORM
Purpose: to systematize the legislative answer
to the case law across all state and territory
jurisdictions
ELECTRONIC PUBLICATION DEFAMATION
ACTIONS
Increases the scope of defamation actions because it
can:
•Create an additional mode of communication
•Make online publication of material, even that
intended to be private, further reaching
•Affect the amount of damage due to the broader
reach of material
LEGESLATIVE CONSIDERATIONS OF
DEFIMATION:
•Statute of limitations
•Single Publication Rule
•Single Controversy Principle
•Single Cause Rule
ONLINE DEFIMATION LAWS
•Still in early days of development and interpretation
•General principles have emerged
Concluding Consensus: When it comes to mitigating risk, it
is wise for forum providers not to provide editorial control. It
is also wise for the providers to advertise this aspect widely.
EMPLOYER ADVISEMENT
Preventative Measures: ensure that there are systems in
place to prevent employees from putting the firm at risk.
Include staff training, an Internet Code of Conduct, and
guiding principles on the responsibilities and expectations
of every employee who is exposed to the internet.
UNIFORM DOMAIN NAME DISPUTES
AND RESOLUTION POLICY
LAW402: LAW OF E-COMMERCE
AFTER COMPLETION OF THIS WEEK’S
ASSIGNMENTS, YOU WILL BE ABLE TO:
•Define WIPO and the process associated with report filing and
submission.
•Define UDRP and identify the UDRP process and its legal advantages.
•Identify the bases for resolution of conflicting claims.
•Summarize the role of domain names and cybersquatting in relation
to trademark disputes in cyberspace.
ICANN issued its Uniform Dispute
Resolution Policy (UDRP) 1999
Uniform Dispute Resolution Policy (UDRP): an alternative to legal proceedings
before courts.
• international standard for resolving domain name disputes
Complaint Requirements:
•demonstrate that the disputed domain name is identical (or confusingly similar)
•registrant does not have a right or legitimate interest in the domain name
•registrant has registered and used the domain name in bad faith.
DOMAIN NAME DISPUTES
• Domain name disputes must: be resolved by agreement, court action, or
arbitration before a registrar will cancel, suspend, or transfer a domain name.
•UDRP has been adopted by all ICANN-accredited registrars in
gTLDs.aero,.biz,.cat,.com,.coop,.info,.jobs,.mobi,.museum,.name,.net,.org, .pro,
.tel and .travel.
•It does not extend to any domain name ending with a country code-these are
separately administered.
•A large number of domain name administrators have issued their own Dispute
Resolution Policies that largely reproduce the ICANN policy.
FIRST COME, FIRST SERVED PRINCIPLE
Most domain name registration authorities have recognized
the “first come, first served” principle. Meaning whoever
was first to register a domain name was granted exclusive
rights to it.
•The rule is easy to understand and the first to register a
name is easily identifiable.
•By one measure it is the fairest way to determine
ownership.
CYBERSQUATTER ABUSE
•Some companies were slow to register their domain name which
proved problematic when applying the “first come, first served” rule.
•Cybersquatters recognized the potential value of desirable domain
names and took advantage of the “first come, first served” nature of
domain name registration.
•Preemptively registered domain names they did not really intend to
use with the intent to sell the domain names at a profit to those
companies who had been slow to react.
WIPO INTERNET DOMAIN NAME
REPORTS
World Intellectual Property Organization (WIPO) : a forum for the development
and implementation of intellectual property policies internationally
Purpose: promotes the protection, distribution and use of intellectual property
throughout the world for economic, cultural and social development.
Founded: 183 member state treaty
Process: 17 consultation meetings in 15 cities and written submissions from 334
governments, intergovernmental organizations, professional associations,
corporation and individuals.
WIPO INVESTIGATION
Included: detailed review of the Administrative Procedure Concerning Abusive
Domain Name Registrations.
Final Report Recommendation: ICANN adopt a dispute resolution policy with a
uniform procedure for domain name disputes in all gTLDs.
Procedure: intended to be quick, efficient, cost-effective and a large extent
conducted on-line
Remedies: limited to orders for the cancellation or transfer of domain name
registrations and the allocation of the costs of the procedure against the losing
party.
UDRP RULES
Purpose: to create global uniformity, reduce the costs for resolving
domain name disputes/ enable the laws of nation states to continue
in operation.
•Adopted by ICANN accredited registrars in all gTLDs
•Dispute proceedings may be initiated by parties claiming trade mark
or service mark rights.
APPLYING FOR ICANN OPEN DOMAIN
NAME
Registrant must:
• represent and warrant that the statements made in the application are
complete and accurate.
• declare that the domain name will not be used for an unlawful purpose and
that the domain name will not Knowingly be in violation of any applicable
laws or regulations.
•Registrant does not have to make a determination about whether the applicant
may be in breach.
•Registrars often rely on turnover of domain names for income- restricting
registration would be an additional cost and against their own interests
MANDATORY ADMINISTRATIVE PROCEEDING
WHEN A THIRD PARTY MAKES A COMPLAINT
Applicable Provider states that:
•Domain name is identical or confusingly similar to a trademark or
service
mark in which the complainant has rights
•Have no rights or legitimate interests in respect of the domain name
•Domain name has been registered and is being used in bad faith.
IDENTICAL OR CONFUSINGLY SIMILAR
•Meant to be separate concepts
•Confusing similarity is limited to a comparison between the
domain name identifier and the mark alone.
•Common law trademark rights are usually confined to the
jurisdiction where the mark is used.
REGISTRANT HAS NO RIGHTS OR
LEGITIMATE INTERESTS
•Complainant must show that the registrant has no rights or legitimate interests
in the domain name.
•The assertion in and of itself does not constitute proof-panel is
free to make reasonable inferences.
•There are specific circumstances to help the registrant demonstrate legitimate
rights
or legitimate interests in the domain name.
•Circumstances are inclusive and beneficial when considering the issue.
REGISTRATION AND USE IN BAD FAITH
•UDRP rules provide an explanation of ‘Registration and Use in Bad Faith’
•Circumstances include how to deal with cybersquatting and the attempted extortion
from trade mark and service mark owners.
UDRP PROCESS
• There are no appeals.
• Decisions are typically made in a timely manner-average time to
resolve disputes 37–45
days.
•NAF permits additional written submissions within five calendar
days of the respondent’s response.72
RULES FOR UDRP
•Stipulate that a respondent has 20 days to file a response.
•Critics argue this is not sufficient time to:
• consider a course of action,
• obtain expert opinion
• research precedents and procedures
• draw up and file a response
Result: approximately half of the number of total applications go unanswered
leading to a considerable amount of abuse by registrants
PRACTICAL RAMIFICATIONS
•Aggrieved party may choose a dispute resolution
process available from the domain name
administrators or pursue legal proceedings before a
court.
•Actions are not mutually exclusive, a party may fail in
one action but succeed in the other.
•The decision of which process is best for the
situation is up to the aggrieved party.