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Lesson#45
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GLOBAL LEGAL ISSUES OF E-COMMERCE-1
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A patent is an exclusive right granted by law to make, use and
sell an invention. In order to be
patentable, the invention must be unique, genuine, and useful
according to the prevalent technological
standards. Patenting software programs is not considered a
popular option these days. Firms, which
had developed software programs for web sites, have experienced
that obtaining a software patent is
expensive and quite time consuming. Therefore, copyright
registration of software programs is
considered a more feasible option. It may, however, be
interesting to talk about ‘business process
patents’ which have value for e-commerce companies. These
patents are granted on ‘methods of doing
business’, and protect a specific set of procedures for doing a
certain business activity. For instance, a
famous online business has conceived a unique 1-click purchasing
method. Another e-business has a
peculiar price tendering system (‘name your own price’ system).
Similarly, an online business uses a
specific approach of aggregating information from different web
sites. The aforesaid businesses have
found their respective business process patents to be quite
useful. However, in the opinion of some
experts the grant of such business process patents can cause
unfair monopoly of the recipients. The
courts have yet to decide complicated issues involving business
process patents.
Trade mark and domain name conflicts
A trade mark is that sign/symbol that associates the
manufacturer or service provider with the
manufactured goods or services, respectively. For instance,
where the letter ‘u’ is written in a particular
style (say in a circle) on the product packaging, it can be
termed as a trade mark. A trade name is that
name or brand under which a business carries on its business
activity to become recognizable. Often, a
trade name can be used as a part of the trade mark. A domain
name is the user friendly name used to
access a web site, such as ‘vu.edu’. Domain names are unique and
global in nature which means that
there cannot be two similar domain names. On the other hand,
trade marks/trade names can be
multiple and localized. Thus, same trade mark/trade name can be
used in relation to the same
product/service in different countries or geographical areas.
Similarly, same trade mark/trade name can
be used in relation to different products/services within the
same geographical area. Based upon this
distinction between trade marks/trade names and the domain
names, the experts have identified four
areas of conflict as follows:
Cyber squatting
The act of intentionally registering domain names containing
trademarks/trade names of prominent
companies to later blackmail or demand ransom from those
companies is called cyber squatting. It is
regarded as an offence in most countries. Assume there is a firm
‘Glory Enterprise’ and it wants to have
its web site. It also wants to have the word ‘glory’ as a part
of its domain name because for years it has
been recognized in the physical world through this word.
However, at the time of registration of its
domain name it finds that a person Mr. ‘A’ who has nothing to do
with the business of the firm or the
word ‘glory’ has already registered a domain name containing
this word as a part of it. Since there
cannot be two similar domain names, the firm is forced to
request Mr. ‘A’ to transfer that domain name
to it. In response, if Mr. ‘A’ blackmails or claims ransom from
the said firm, he would be said to have
committed cyber squatting.
Concurrent use
This problem arises when two organizations have apparently
legitimate claim to use the same domain
name but cannot do so due to the uniqueness of domain names.
Suppose, there is a company
manufacturing electronic goods and another company selling
French fries. Under the traditional trade
mark law both these companies can have the same trade mark/trade
name such as ‘frys’. The problem
arises when both apply for the registration of a domain name
containing the word ‘frys’. Here, both are
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legitimate claimants of this domain name but due to the element
of uniqueness of domain names only
one of them can be assigned the desired domain name.
Parasites
Parasite domain names are variants on famous domain names, and
are confusingly similar to them to
gain business advantage. For instance, a software company may
intentionally register a domain name as
‘macrosoft.com’ (a variant of domain name of the famous company
‘Microsoft’) to take advantage of
the reputation of ‘Microsoft’. The idea is that someone
intending to reach the web site of ‘Microsoft’
may mistype or misspell and reach the web site of ‘Microsoft’,
instead. xyz.com vs. xyz.org
This problem arises due to the fact that second level domain
names can be assigned to multiple toplevel
domains. For example, ‘whitehouse.org’ and ‘whitehouse.com’ are
two valid domain names. The
former may take you to the web site containing information about
the residence of the American
President, whereas the later may have been deliberately
registered with the same second level domain
but a different top-level domain to gain business advantage.
Thus, it is quite possible that a person
wishing to know about the residence of the American President
reaches an irrelevant or pornographic
web site after typing the word ‘Whitehouse’ on a search engine.
International Corporation for Assigned Names and Numbers
(ICAAN), which supervises the task of
registration of domain names worldwide, has developed and
implemented a policy known as Uniform
Dispute Resolution Policy (UDRP) for deciding domain name
disputes. It enables trademark holders to
claim/retrieve domain names by invoking mandatory arbitration
proceedings at different arbitration
forums or service providers. Arbitration is a legal concept in
which parties, through an agreement,
appoint/nominate a person or a panel to act as a judge in the
matter instead of referring the dispute to
the ordinary court of law. The decision of the arbitrator is
regarded as final and binding on the parties.
World Intellectual Property Organization (WIPO) based in
Switzerland is one such arbitration service
provider nominated under the UDRP.
Online Defamation
A defamatory statement is a false statement that injures the
reputation of on another person or
company. If a statement injures the reputation of a product or
service instead of a person, it is called
product disparagement. Suppose, someone circulates a news item
in the media about the reputation of a
doctor, alleging him to be professionally incompetent and
negligent. This doctor may then file a lawsuit
against that person claiming that his reputation has been
injured due to such an act. Often, in cases of
defamation the plea taken by the defendant is that his statement
is not false. Rather, it is a ‘fair
comment’. In case defamation is done using the internet, it is
termed as online defamation. In countries
abroad, the courts are replete with cases of online defamation,
mainly, because the person causing
defamation can expect to remain anonymous due to the nature of
internet technology.
It is difficult to draw a clear line between justifiable
criticism and defamation. So, commercial web sites
should avoid making negative or critical statements about other
persons or products. Similarly, web site
designers should avoid any defamation liability when indulged in
the alteration or modification of a
picture or image of a person. They should not depict such person
in derogatory or negative sense.
Moreover, any online statement about the competitors must be
carefully reviewed before posting it on
the web, lest it contains any element of defamation.
Closely connected with online defamation is the issue of
liability of the internet service providers (ISPs).
ISPs provide the channel for communication. An ISP may be
accused of aiding in the commission of
online defamation where it provides hosting service to a web
site containing defamatory material.
Courts have prescribed a test in determining ISP’s liability in
such a case. Accordingly, where the ISP
has editing control; it can review any defamatory material and
take it down from the web site; it should
be treated as a publisher. In such a case the ISP can be held
liable for online defamation. Conversely,
where the ISP has no editing control over the offensive material
posted on a web site; it would be
merely acting as a distributor. In such a case, the ISP can
escape liability for online defamation.
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Online Privacy
Issue of online privacy is constantly evolving as internet grows
as a tool of communication and
commerce. Due to the nature of internet technology, it is
possible for web sites to collect information
about page viewing habits of visitors, product selection and
demographic information (age, sex etc.)
about the customers. This may threaten informational privacy
rights of such visitors/customers.
Cultural difference in different countries is the reason why
there are different levels of expectations
about privacy in different parts of the world. Many countries
have, today, privacy laws such as Canada,
European Union (EU) etc. Personal Information Protection and
Electronic Documents Act, 2000
(PIPEDA) is the federal law in Canada in this regard. In 1998,
the EU adopted a directive on the
protection of personal data, which gave the form of law to
different constitutional guarantees/rights
about privacy existing in most European countries. This is
applicable to all internet activities. The
directive also prevents businesses from exporting personal data
outside EU unless this data is protected
in the exporting country according to the provisions of the
directive. In the Unites States of America,
the government has avoided to introduce any firm privacy
regulations. Companies in the U.S.A. are
entitled to make policies or devise mechanism to regulate
privacy issues themselves. The companies
have adopted two different approaches in this regard, that is,
opt-out approach and opt-in approach. In
more common opt-out approach, the company collecting information
assumes that the customer does
not object to a specific use of information unless the customer
specifically denies the permission. Thus,
the company may use the collected information for its own
purpose, as well as, sell or rent it out to
other firms or persons.
In less common opt-in approach, the company collecting
information assumes that it cannot use the
information for any other purpose except the one for which it is
collected. Accordingly, it cannot sell,
market, or rent out this information to other firms/persons
unless the customer specifically chooses to
allow such a use. Experts have highlighted four guiding
principles to form the basis of any privacy
legislation. These are as follows:
collected data may be used for improved customer service;
sharing of personal data with outside firms/persons should not
be allowed unless the customer
consents to that;
customers should have the right to receive information about
what type of data has been
collected from them and in what manner has it been used;
customers should have the right to ask for the deletion of any
of their data collected by the
company.
Internet Taxation
Companies doing business on the web are subject to same taxes as
any other business. However,
traditional businesses operating at one location are subject to
only one set of tax laws, but due to the
international scope of ecommerce, e-businesses might have to
comply with multiple tax laws enforced
in different countries. An online business is subject to various
taxes which include income tax,
transaction taxes and property tax. Income tax is levied by the
national or state or local government
(where the business is located) on the net income generated by
business activities. Transaction taxes
include sales tax and custom duties which are levied on the
products or services a business sells. Sales
tax is levied on goods sold to customers. Traditionally,
businesses have to file sales tax return with a
competent authority and remit sales tax which they have
collected from their customers on the sale of
products or services. Custom duties are taxes levied or imposed
by countries on the import of goods
into the country. Property taxes are imposed by a government
(including a local government) on
personal property and real estate used in the business. Among
these, income tax and sales tax are more
important.
Note that a government acquires the power to tax a business when
that business establishes a
connection with the area controlled by such government. Thus,
connection between a tax payer and a
government is called nexus. It is necessary to understand
‘nexus’ in order to determine where a
particular tax has to be paid by an online business.
E-businesses doing business in more than one
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country have to deal with the issue of nexus to know the
governments/countries entitled to
levy/receive taxes from them. Generally, the principle is that
if a company undertakes sufficient
business activities in a particular country it establishes nexus
with that country and becomes liable for
filing returns in that country and it must comply with its tax
laws. Therefore, an e-business may be
required to separately file tax returns and pay taxes in
different countries. A web site maintained by a
company in the United States must pay income tax to the American
government on income generated
inside and/or outside of the U.S.A. However, to avoid the issue
of double taxation, the U.S. tax law
allows credit/refund for taxes paid (if any) to the foreign
countries in relation to foreign earnings. It is
important for an online seller to know where the customer is
located and what the law of sales tax is in
that country or jurisdiction to determine whether or not a
particular item is subject to sales tax.
Cyber Crimes
The use of internet technology has given rise to crimes which
could not be conceived of a few years
ago. Such crimes more suitably called cyber crimes include
online fraud, online hate (spreading hatred
against a community through internet), cyber-stalking (sending
threatening messages using internet),
online terrorism, distribution of pornography, using a computer
for launching attacks on other
computers etc. Today, many countries of the world are busy in
either drafting new laws to deal with the
issue of cyber crimes or making suitable amendments in existing
criminal code. Again, the issue of
territorial jurisdiction is critical in this behalf. For
instance, where a Pakistani resident commits a cyber
crime against a Canadian resident, the question arises whether
or not the Canadian court can take an
action against this Pakistani, particularly, where the act of
Pakistani is not considered criminal under the
Pakistani law.
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