Electronic and Mobile Commerce Law extract
Table of Contents
Section 1: Electronic Commerce
1. Contractual Aspects of Electronic Commerce Stuart Weinstein
2. Commercial Conflict of Laws Charles Wild
3. Domain Names, Trade Marks and Passing Off Stuart Weinstein
4. Copyright, Patents and the Internet Stuart Weinstein
5. e-Marketing and Libel Over the Internet Stuart Weinstein
6. Cloud Computing Karen McCullagh
7. Virtual Worlds Marina Hamilton
Section 2: e-Finance
8. Key Principles of e-Finance Charles Wild
9. Payment Cards and the Internet Charles Wild
10. Electronic Cash and Smart Cards Charles Wild
11. Online Gambling Marina Hamilton
Section 3: Cybercrime
12. Cybercrime Neil MacEwan
13. Cyber Warfare Case Study: Sun Tzu’s The Art of War and the Dilemma of Anonymity Stuart Weinstein, Pauline Reich, Charles Wild and Allan Cabanlong
Section 4: Infrastructure: Regulation and Access
14. The Regulatory Framework Directive 2002/21/EC Neal Geach
15. Conditions of Network and Service Provision: The Authorisation Directive 2002/20/EC Neal Geach
16. Commercial Access: Access and Interconnection Directive 2002/19/EC Neal Geach
17. Consumer Access and Rights: The Universal Service Directive 2002/22/EC Neal Geach
Section 5: Spectrum and m-Commerce
18. Spectrum Neal Geach
19. The Evolution of m-Commerce: Nokia Case Study Charles Wild
20. Regulating Audiovisual Media Services: The Audiovisual Media Services Directive 2010/13/EU Neal Geach
Extract from Electronic and Mobile Commerce Law
Taken from the Foreword by Professor Pauline C. Reich
...This work also comes at a critical juncture in the public debate about the policy and legal implications raised by our dependence on the Internet for commercial, government, education, health, energy, aviation, military and other functions in developed and developing countries worldwide. Just recently, the Economist, in an editorial of 1 July 2010 called for the need for greater international co-operation in preventing attacks on computer networks:
'The threat is complex, multifaceted and potentially very dangerous. Modern societies are ever more reliant on computer systems linked to the internet, giving enemies more avenues of attack. If power stations, refineries, banks and air-traffic-control systems were brought down, people would lose their lives. Yet there are few, if any, rules in cyberspace of the kind that govern behaviour, even warfare, in other domains. As with nuclear- and conventional-arms control, big countries should start talking about how to reduce the threat from cyberwar, the aim being to restrict attacks before it is too late.'5
The current state of play in ‘cyberwarfare’6 in relation to national security concerns worldwide is explored in a contribution by Stuart Weinstein, Charles Wild, Allan Cabanlong and myself. A broader examination of the cybercrime environment is provided by Neil MacEwan, who takes the opportunity to explore such evolving issues as Internet child pornography, cyber-stalking and online harassment as well as the concept of cyber-bullying. Not only do these issues challenge traditional legal concepts and thinking, but they also raise the problems of Internet accountability, anonymity in situations involving individuals seeking economic gain, those with criminal motivations, and state and non-state actors with agendas affecting national security.7
Accountability for acts against individuals is currently the subject of one high profile discussion on an international level, with respect to the case of Carla Franklin and the implications of her action against Google.8 Ms Franklin took Google to court to force the company to reveal the name of the person who had posted YouTube videos of her, and cast aspersions, to the point of labelling her a ‘whore’.9 Libel over the Internet can have a far reaching effect on individuals and, as such, those who defame others over the Internet must not be able to cloak themselves in anonymity in order to avoid liability. However, whilst the innocent must be protected, there is always an argument to be made for a correct balance to be found between free speech and Internet regulation and accountability.10 The need for one form of delicate balancing act results when avoidance of ‘cyber-bullying’ can quickly evolve into an environment of censorship and restriction.11
The impact of media on people’s lives should not be underestimated. According to a new report from Ofcom12, people in the UK spend nearly half of their waking lives watching television, texting one another, surfing the Internet, or generally making use of the wide variety of media and communications technology available to them. The high proportion of time spent by young people on social networking sites, such as Facebook, has surprised a number of people. However, their utilisation of computers and mobile phones goes beyond mere communication in the traditional sense. It also involves an incredible amount of creativity ranging from the production and uploading of videos to YouTube, through participation in online fora or simply ‘poking’ friends on Facebook. This is the future, as evidenced by Natalie Tran from Australia.
Ms Tran represents the new type of entrepreneur who has emerged as a result of sites such as YouTube. According to TubeMogul, an analytics and advertising company partnered with Microsoft, Ms Tran made $110,00013 from the online advertisements associated with her ‘look-at-me’ videos, making her one of 10 global independent YouTube stars. Her YouTube page has over 740,000 subscribers14, and her clip entitled ‘How to fake a six-pack’ has currently received over 28 million views. Notwithstanding, Ms Tran’s ‘fifteen minutes of fame’, several major Hollywood movies are in the making chronicling the growth of social media. These productions include The Social Network which documents the early days of Facebook mogul Mark Zuckerberg, with a second movie planned to explore the Google story and its co-founders Sergey Brin and Larry Page.15
Unfortunately, such social media may also be said to have a darker, albeit unintentional, side. The unfortunate death of Michael Jackson was watched live, via a wide range of media, on an international scale. Privacy and a respect for the private lives of celebrities is certainly something which will be at the forefront of discussion for many years to come. Another aspect of this loss of privacy arises when YouTube and other forms of social media become enforcement tools for authorities.16 The recent case of a video clip of Shakira dancing with her fans in the fountain by Pla de Palau (Barcelona), which was subsequently posted on YouTube has been used by the Spanish Police to fine the pop singer for unauthorised behaviour. While this is hardly liberty threatening, it does nevertheless highlight the way in which media (and information) that is innocently posted, but publicly available, may result in unforeseen consequences. As such, it is worth posing the question as to whether one’s expectation of privacy is lost when one posts something on the Internet.17 It also appears that this is starting to extend beyond the world of ‘celebrity’.18
Of course, any discussion of YouTube also raises the important point concerning another delicate balance between making content available online and that of copyright infringement.19 YouTube is based on the concept that by being a forum on which individuals post content, revenue will be generated through advertising. While YouTube prohibits the uploading of any copyrighted material, it does not, however, pro-actively enforce this position. If a piece of material that has been uploaded is reported to be copyrighted, YouTube will remove it. However, what is the balance between freely available clips and protecting the intellectual property rights of those who produce such content? This is not an easy question to answer, but one into which Stuart Weinstein seeks to provide some insight in his chapters. Certainly, the issue of copyright infringement in this context is one that the courts will have to continue to consider and address more thoroughly in the near future.
There is also the associated debate regarding virtual worlds and the growth of alternate realities. Who owns the rights to the characters and merchandise within these various environments? Who polices these territories? Who regulates the currency within these worlds?20 These questions are explored by both Marina Hamilton and Charles Wild within the sections dealing with virtual property and electronic finance.
Finally, we come to the way new technologies are changing, forever, the way in which we access the Internet and use it in our daily lives. One need only consider the incredibly high levels of media interest that occurs when Steve Jobs and Apple® role out the latest version of the iPhone® to appreciate the way in which technology has become a permanent part of people’s lives. Perhaps unlike any other product currently on the international stage, the iPhone® demonstrates the fact that, in the age of m-commerce, the question of where to draw the line between what is content and what is the medium used to deliver the content is irrevocably raised. The contributions by Neal Geach on spectrum, media services and network access provide an excellent insight into this increasingly important aspect of our lives.
5. ‘The Threat from the Internet – Cyberwar’, Economist, 1 July 2010, available at: http://www.economist.com/node/16481504?story_id=16481504&source=features_box1.
6. Cyberwarfare has been defined by Richard A. Clarke, in his book Cyber War (New York, 2010), as ‘actions by a nation-state to penetrate another nation’s computers or networks for the purposes of causing damage or disruption’. For additional definitions, see Pauline C. Reich, ‘To Define or Not to Define: Law and Policy Conundrums for the Cybercrime, National Security, International Law and Military Law Communities’, in Reich and Gelbstein, Law, Policy and Technology.
7. See S. Brenner, Cyberthreats: The Emerging Fault Lines of the Nation State (Oxford, 2009).
8. J. Scott, ‘Columbia Business Grad Files Lawsuit Over YouTube Comment’, Reelseo, 18 August 2010, available at: http://www.reelseo.com/columbia-business-school-grad-files-lawsuit-youtube-comment/.
9. Calgary Herald, ‘Opinion: Internet accountability needed in Carla Franklin case’, 21 August 2010, available at: http://www.calgaryherald.com/Internet+accountability+needed/3426044/story.html#ixzz0xMddC5VA.
10. See, e.g. Daniel J. Solove, ‘Free Speech, Anonymity and Accountability’, in The Future of Reputation: Gossip, Rumor and Privacy on the Internet (London, 2007), http://docs.law.gwu.edu/facweb/dsolove/Future-of- Reputation/text/futureofreputation-ch6.pdf.
11. ‘Censorship in Australia – The Internet’, http://en.wikipedia.org/wiki/Censorship_in_Australia#The_Internet; W.H. Dutton and M. Peltu, ‘The Emerging Internet Governance Mosaic: Connecting the Pieces’, 14 July 2005, Provisional Draft, available at: http://www.wgig.org/docs/OII-BerkmanJULY.pdf.
12. Ofcom, The Communications Market 2010 (August), available at: http://stakeholders.ofcom.org.uk/market-dataresearch/ market-data/communications-market-reports/cmr10/.
13. C. Howard, ‘Natalie Tran Makes Top 10 YouTube TubeMoguls’, Forbes, 20 August 2010, available at: http://blogs.forbes.com/carolinehoward/2010/08/20/natalie-tran-makes-top-10-youtubetubemoguls/? boxes=financechannelforbes.
14. Ibid.
15. I. Salha, ‘Google movies follows Facebook and Youtube Films’, Metro, 22 August 2010, available at: http://www.metro.co.uk/film/838638-google-movie-follows-facebook-and-youtube-films.
16. Pauline C. Reich, ‘Social Networking – the Other Side: Cybercrime, Cybersecurity and Privacy Considerations’, American Bar Association, Annual Meeting, Section of Real Property, Trusts and Estates Law, San Francisco, 8 June 2010, to be forthcoming on http://www.abanet.org/rpte/cle/.
17. Ibid.
18. Kurt Opsahl, ‘Facebook’s Eroding Privacy Policy: A Timeline’, http://www.eff.org/deeplinks/2010/04/face-booktimeline.
19. See the ongoing Google Books litigation in the US, Authors Guild et al. v. Google, Inc., 05CV8136, www.groklaw.net/pdf/Google_Complaint.pdf; Google Book Search Settlement Agreement, http://en.wikipedia.org/wiki/Google_Book_Search_Settlement_Agreement; The Author’s Guild et al. v. Google (docket entries), http://dockets.justia.com/docket-newyork/nysdce/1:2005cv0813/6/273913/.
20. See Martha Neil, ‘Attorney Avatars Create Virtual Bar, Virtual Law and Virtual CLE Courses’, ABA Journal, 1 August 2008, http://www.abajournal.com/magazine/article/fantasy_life_real_law/; Second Life Bar Association, http://slbarassn.ning.com.