Global E-commerce And Internet Liability (620085M6)
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Summary Global E-commerce & Internet Liability – DO NOT DISTRIBUTE
Global E-commerce & Internet Liability
Overview Lectures:
• Lecture 1: General Introduction – 28-01
• Lecture 2: Tiffany vs EBay – 29-01
• Lecture 3: Online Defamation – 04-02
• Lecture 4: ISP Liability – 06-02
• Lecture 5: ISP Liability: Grokster – 13-02
• Lecture 6: E-commerce Legal Framework – 17-02
• Lecture 7: EU Signatures
• Lecture 8: Liability for Digital Assets - 2-03
• Lecture 9: Liability for Digital Assets - 06-03
• Lecture 10: E-commerce part II – AI – 09-03
Learning objectives
- The student can analyze the influence the three characteristics of the Internet (internationalization
(including issues regarding jurisdiction), dematerialization and technological turbulence) have in a
given case.
- The student can analyze the role of Internet intermediaries (such as Internet Service Providers (ISPs),
evaluate the liability regime applicable to those intermediaries and draw conclusions for
improvements.
- The student is able to analyze and evaluate a case both from a multidisciplinary (taking into account
different scientific disciplines) and comparative perspective (online vs. offline as well as different
legal systems).
o Economic, political, social, legal
- The student can make sense of the fragmented EU regulatory framework in the field of law and
electronic commerce and is able to explain and analyze what causes this fragmentation and the
problems deriving from it.
o B2C B2B
- The student is able to reflect upon the problems that arise because of different applicable legal
frameworks with different scopes of application.
- The student can distinguish the different phases of electronic contracting and can apply the
legislation applicable to electronic contracting.
- The student can explain the different forms of electronic signatures and their status in the EU legal
framework.
, Summary Global E-commerce & Internet Liability – DO NOT DISTRIBUTE
Lecture 1: Liability and the Internet – Colette Cuijpers – 28-01-20
The first lecture will discuss the characteristics of the Internet and how the Internet changes the commercial
landscape and challenges pre-existing regulations in private law. Liability law is used as an example. On the
basis of Lessig’s modalities of regulation it will be explained how “multidisciplinary” factors influence the use
and governance of the Internet. Their effect and interplay with the law needs to be taken into account when
assessing legal disputes. Moreover, new online situations can raise new ethical questions, which any regulator
should consider.
Mandatory literature:
(1) Bert-Jaap Koops, Corien Prins, Internationalization and ICT law: the position of the UK, Germany, France
and the United States.
Internationalization and ICT law: the position of the UK, Germany, France and the US
- Law still nationally based, however information society challenges this
- Q: How should governments regulate ICT and the Internet, given the fundamental influence if
internationalization?
- This paper takes different national legal systems, and focused on general principles of private and
criminal law.
- It builds on a research by the Dutch parliament, with the outcome being: if ICT law wants to grow up,
governments should structurally incorporate the perspective of internationalization and jurisdiction in
all policy-making in the area of ICT law.
1. Introduction: Topics and Relevant Documents
The research included the general themes and issues of “Self-Regulation”, the statement “what holds offline
should also hold online” and enforcement. Plus, four specific subjects were covered: Judicial co-operation in
criminal matters, requirement of double criminality for context dependent offences, Civil liability of ISPs, and
which law applies to online agreements?
2. General themes
Unlike the Dutch, few legal policies analyzing ICT law have been made. Only France has made an effort: Policy
paper on the adaption of the legal framework to the info society.
- Generally treatment of the ICT law is the same
What holds offline: Basic starting point in Dutch policy and explicit in UK. However, can be indirectly derived
from the other countries. However, since there are increasing issues that ask for different treatment than the
offline world, such as: consumer protection, legal certainty, stimulation of E-commerce etcetera, there can be
pressure on the statement.
- What holds offline: useful in the early ICT days à now: levels of protection should be the same but
not the rules
- Not just transpose rules online, think about WHY these rules have been made à there is an
interactive relationship between the offline and online rules
- Can be reversed: what holds online, should also hold online
Then the topic of Self-Regulation comes along. Dutch government has shown support for this self-regulating
system to solve legal uncertainty of cross-border electronic communications.
- This will provide flexibility in a turbulent time concerning ICT
- Self-Regulation is not bound by borders
- However, still national government regulation as a starting point for the fundamental values of the
rule of law (e.g. civil rights, applicable law, state security etc.)
- Multiple systems show some broad support for Self-Regulation, however when it comes to these
cornerstones of the law there is a preference for government regulation
- Co-regulation, is a frequently used term currently. Government as a guiding entity, rules shaped not
by them.
o This term however does mean different things depending on different legal values and
traditions
, Summary Global E-commerce & Internet Liability – DO NOT DISTRIBUTE
- 2 questions for government intervention: 1)Practical: can I use a digital signature to make a
transaction? 2) Influencing behavior: Don’t use encryption that hampers law enforcement à second is
not favored.
Enforcement is crucial when considering which online rules should apply and what level of regulation can
shape these rules. Enforcement is especially problematic in an international context.
- There aren’t any ideas about integral approaches to enforcement yet à they look on a case to case
basis what will be the best approach
- Possible difficulties of enforcement on international level: Tax law, privacy law, cryptography
- Smart to start with small domains at first. All countries have an interest in these areas and their
enforcement.
- Constructions of national contact points seem to be most promising short-term to enforce
3. Specific Issues à 2 of criminal law and 2 of private law
- Double criminality: usually required for mutual assistance in criminal matters
o Dutch government suggested that this principle could sometimes be dropped, in order to
follow a digital trace (other countries do not share this thought)
o Highly unlikely all laws will be synced, so judicial co-operation seems more likely
- Judicial cooperation: judgments of one countries can be recognized and enforced in another
o Dutch view: there must be effective and efficient rules in order to regulate investigation
powers aimed at foreign Internet providers.
- Applicable law in online contracts
o Hague Convention on private international law
- Civil Liability of Internet providers
o In Dutch law, tort is sufficiently technology-independent for the government to be able to
leave it to the courts to develop this issue.
4. Distinctions and Trade-offs
• Offline – Online
o Early days, not applicable anymore
o Still relevant: underlying principles and levels of protection, governments should however
focus on the specificity of online problems
• Government – Self Regulation
o Co-regulation
o Since, government input is crucial to safeguard interests and legal certainty
o Differs per country: choice of voluntary and obligatory enforcement
• Overall Principles – Specific Solutions
o Broad guidelines are hard to make on a global level
o Broadness does injustice to the specific problems online
o Can have broad stances, however systems need to be open-minded
• Answering – Steering
o Regulations that answer practically (for legal certainty) or steer (influence behavior)
o The balance of this regulatory side, affects the likelihood of compliance.
• Top-Down – Bottom-Up
o Internet provider liability and electronic signatures are national issues, which can be
addressed nationally. However, considering internalization, national regulations must be
somewhat in sync. This happens on the international level.
o E.g. applicable law discussions only happen on international level, this could risk national
governments of not publishing their opinions and not triggering national debates.
Conclusions
- Desire for a uniform approach of the various problems, yet need to be aware of the specific dynamics
of each individual issue
- Variety in unity
- In some areas, international agreements can be problematic (enforcement)
- Thinking of ICT still happens largely on a national level, needs to be international
, Summary Global E-commerce & Internet Liability – DO NOT DISTRIBUTE
- In order to facilitate the international discussions in which it takes part, governments can formulate
rules of thumb that support their positioning, but these can be no more than starting points for
discussion.
- Even more so than with traditional law subjects, the Government should be flexible and have an open
attitude toward all the nuances of ICT law.
- Governments should incorporate the international dimension more emphatically in the national and
international policy-making in the field of ICT law. ICT law has by now outgrown the infancy stage of
general starting points and national interim solutions. A grown-up ICT law calls for structurally
incorporating the perspective of internationalization and jurisdiction.
(2) Raab, Charles D. and De Hert, Paul, The Regulation of Technology: Policy Tools and Policy Actors
(November 1, 2007). TILT Law & Technology Working Paper Series No. 003/2007; Tilburg University Legal
Studies Working Paper No. 004/2007. Available at SSRN:
https://ssrn.com/abstract=1030263 or http://dx.doi.org/10.2139/ssrn.1030263
The Regulation of Technology: Policy Tools and Policy Actors
Subjects of this paper
- Tools for governmental regulatory policy with regard to controlling the invasive effects of technology
on human values.
- E.g. Privacy enhancing
- Policy actors and their relationships
- Tool formulations of Lawrence Lessig
1. Introduction
Tools with which governing effects are brought about are up for discussion. ICTs provide a wide field of study:
IP, domain names, internet content etc. ICTs provide not only cases of regulatory policy, for important
dimensions of (re)distributive social policy are also involved. This paper is about shedding light on the
regulation of information practices.
2 Q’s need to be addressed
1. What tools pertain to what practices, and according to what criteria can these instruments be compared and
contrasted?
2. Are the instruments substitutable for each other, or are they complementary; and if complementary, how do
they combine (and how might they combine better)?
2. The taxonomic quality of contemporary regulatory analysis
- Focus on regulatory tools for (e.g.) privacy online and offline
- Lessig and others have made a major contribution to the discussion of instruments that bears upon
privacy protection and much else, within the particular domain of information policy
- Lessig: 4 main tools à “modalities”
o Law, social norms, markets and architecture
- SWAMI: Technological, Socio-economic, legal & regulatory
o This concludes that: we should be able to observe changes in safeguards as they respond to
changes in threats, at least if the system in question were self-equilibrating.
Governance of ICT and the mapping of policy actors
- Main concern with contemporary “tools” of regulation: possible ideological side effects
- Not immune to power play
- The people decide how the tools are being used, so societal and political context needs to be taken
into account
- The tools approach only is a bit disembodied, compared to the policy actor incorporation
- Understanding tools and their abilities can only be done when a broader perspective is taken
- Shift from government to governance à political science view
- Governance: The ‘new governance’ models insist on the non-coercive processes based on the will of the
participants to agree, by way of collective deliberation, on procedural norms, modes of regulation and
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