Preliminary Syllabus: E-‐Commerce Law (Sumer School 2013)*

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Preliminary Syllabus: E-‐Commerce Law (Sumer School 2013)*

* Changes may be made according to the literature list but NOT to the time schedule!

Table of Contents Class information ........................................................................................................................... 2 Teacher .............................................................................................................................................. 2

Class day/time ................................................................................................................................. 2

Course contents .............................................................................................................................. 2 Participation and Attendance Policy ....................................................................................... 3

Comments on teaching ................................................................................................................. 3 Exam and Evaluation .................................................................................................................... 3

Literature .......................................................................................................................................... 4

Teaching Schedule ......................................................................................................................... 4 Lecture Plan ..................................................................................................................................... 5 Lecture 1: Introduction to E-‐Commerce law ....................................................................................... 5 Lecture 2: Data Protection ....................................................................................................................... 7 Lecture 3: Data Protection (cont.) & Online Advertising .................................................................. 9 Lecture 4: Online Advertising (cont.) ................................................................................................. 12 Lecture 5: Intellectual Property (IP) .................................................................................................. 14 Lecture 6: Linking & E-‐Contracting .................................................................................................... 16 Lecture 7: E-‐Contracting (cont.) .......................................................................................................... 19 Lecture 8: Jurisdiction ........................................................................................................................... 21 Lecture 9: Social Media/New Media ................................................................................................... 23 Lecture 9: Social Media/New Media (cont.) & Question hour ....................................................... 25

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Class information

Level: Master Period: Summer 2013 (start August 5) Location: 1328-‐030 Examination Day/Time/Location: Yet to be announced. Language of teaching: English

Teacher

Evelyne J.B. Sørensen Email: [email protected] Phone: +45 8716 4802 Office: Building 1411, room 253 Office hours: After Class by appointment (email me!)

Class day/time

Week 32: Monday, Tuesday, Wednesday (9:00 – 13:00) Week 33: Monday, Wednesday, Friday (9:00 – 13:00) Week 34: Monday, Wednesday, Thursday, Friday (9:00 – 13:00)

Course contents

E-‐Commerce Law is a course that builds on top of the competences the students have achieved during their participation in other legal courses in national, international or EU law. Further, it builds upon the knowledge gained in economic courses, especially in E-‐Business courses.

The aim of this course is to make the student capable of identifying legal problems arising in relation to the commercial usage of the Internet. Moreover the student must be able to identify the law applicable in each situation and apply the law to specific legal problems.

The course will focus on aspects of online contracting, consumer protection, intellectual property rights, advertising and marketing, taxation and jurisdiction and governing law. The main focus will be EU law, and the international obligations of the EU. Taking the global nature of e-‐commerce into account, the EU approach will be supplemented by other relevant international law and inspiring national governmental or self-‐regulatory systems. The course is partly based on the activity of the students and the students must therefore be prepared to make an effort with respect to preparation and participation.

The primary aim of the course is to introduce the rules applying to e-‐commerce of the European Union but it will also focus on areas where the current rules do not seem to provide enough protection to the consumer. The course will enable the student to respond to the increasingly serious demands posed by business employed computers and networks.

Principal topics will include:

• Privacy and data protection (Conceptual and legal definitional issues) • EU and International privacy and data-‐protection regimes

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• Co-‐regulation, self-‐regulation and codes of conduct • Consumer protection • Advertising and marketing • Online Contracting • Jurisdiction and Governing Law • Mobile commerce

Participation and Attendance Policy

Your participation is a vital component of the class and will be assessed in terms of active and meaningful involvement in class discussions and group activities. Note that participation is not merely class attendance, although you must be in class in order to participate! Although I will not be formally recording your attendance, I do take notice of participation in our class discussions. I also recognize that emergencies, illness etc. may cause you to miss the occasional class. If you are unable to attend a class, it is your responsibility to communicate this to me by email and to obtain any notes from fellow course participants.

Comments on teaching

The course will consist of introductory lectures, discussions, student presentations, and casework in smaller groups of students. There will also be presentations by the lecturer, but students are required to become familiar with the literature before class and students are strongly encouraged to discuss central themes prior to each lesson in groups created by the lecturer.

In order to help you with your preparation I have prepared a number of questions for each lesson. These questions can be found further below. Answers to the questions may not always be found in the assigned reading and you will therefore in some cases need to think beyond the reading. The purpose is to train your ability to critically reflect about the themes covered in the course.

We will not always discuss answers to the questions in detail in the lectures. They are mainly created for preparational purposes.

Notice also that the course has its own webpage in the system AULA: Go to www.aula.au.dk and register as a participant of the course called ‘E-‐Commerce Law’.

Exam and Evaluation

The learning outcome will be achieved by the use of a mixture of learning instruments like lectures, discussions, cases, assignments and student presentations. The course is partly based on the activity of the students and the students must therefore be prepared to make an effort with respect to preparation and participation.

The final grade given in the course is based upon an overall assessment of the accomplishment of the learning outcome aimed at by the course.

The precise form of the exam will be announced soon.

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Literature

Articles will be the primary reading for this course. Case studies will also be used.

An e-‐compendium is currently under preparation and will be available through AULA as soon as possible.

Teaching Schedule

(see more details below lecture plan)

# DATE (time) TOPIC

1 Monday 5/8 (9:00 – 13:00)

• INTRODUCTION:

2 Tuesday 6/8 (9:00 – 13:00)

• DATA PROTECTION

3 Wednesday 7/8 (9:00 – 13:00)

• DATA PROTECTION • ADVERTISING

4 Monday 12/8 (9:00 – 13:00)

• ADVERTISING

5 Wednesday 14/8 (9:00 – 13:00)

• INTELLECTUAL PROPERTY LAW • LINKING

6 Friday 16/8 (9:00 – 13:00)

• LINKING • E-‐CONTRACTING

7 Monday 19/8 (9:00 – 13:00)

• E-‐CONTRACTING

8 Wednesday 21/8 (9:00 – 13:00)

• JURISDICTION

9 Thursday 22/8 (9:00 – 13:00)

• SOCIAL MEDIA / NEW MEDIA

10 Friday 23/8 (9:00 – 13:00)

• SOCIAL MEDIA / NEW MEDIA • SUMMARY/QUESTIONS

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Lecture Plan

Lecture 1: Introduction to E-‐Commerce law (Monday, August 5: 9:00 – 13:00)

TOPIC Compulsory reading

1. Defining e-‐commerce

• OECD (2011), “E-‐commerce uptake”, in OECD Science, Technology and Industry Scoreboard 2011, OECD Publishing (http://dx.doi.org/10.1787/sti_scoreboard-‐2011-‐64-‐en) (4pages).

• M. Ali Nasir (2004), “Legal issues involved in E-‐commerce”, ACM IT Magazine (https://www.uop.edu.jo/download/research/members/v4i49_nasir.pdf) (11 pages)

2. History of e-‐commerce

• Lecture slides

3. Methodology & Sources of law

a. EU law b. Self-‐regulation

• Directorate General (2006), ”Self-‐Regulation in the EU Advertising Sector”, Background Paper (http://www.asa.co.nz/pdfs/Madelin%20Report.pdf) (ONLY Chapter 1 & 2, pp. 8-‐17) (9pages)

Description:

There is a threefold aim of this lecture. First the course participants will be introduced to the teacher and vice versa. Second, a general overview of the course will be provided and the participants will be introduced to the aim of the course and the exam. Finally, we will spend some time discussing what E-‐commerce law is and what role e-‐commerce place in the legal world.

For those of you who need a brush-‐up in EU law, I recommend to have a look at the complementary reading list. You need to have a basic understanding of the EU sources of Law.

Legislation

• E-‐Commerce Directive (2000/31/C) (http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:178:0001:0001:EN:PDF)

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Complementary reading:

• UNESCAP Trade and Investment Division (2007), “LEGAL IMPLICATIONS OF E-‐COMMERCE: BASIC ISSUES, INITIATIVES AND EXPERIENCES IN ASIA,” Trade and Investment Division, Staff Working Paper 02/07 (http://www.unescap.org/tid/publication/swp207.pdf).

• European Commission: Sources of EU law (http://ec.europa.eu/ireland/about_the_eu/legal_information_and_eu_law/sources_eu_law/index_en.htm).

• European Parliament: Sources and Scope of EU Law (http://www.europarl.europa.eu/ftu/pdf/en/FTU_1.2.1.pdf).

Questions

1. What is e-‐commerce?

2. What is information asymmetry?

3. What are some of the unique features of e-‐commerce technology?

4. How are the Internet and the Web similar to or different from other technologies that have changed commerce in the past?

5. How different is e-‐commerce law to traditional law?

6. Is anyone in charge controlling the Internet?

7. Can we apply existing traditional legal rules to the e-‐commerce marketplace?

8. Is (and if) governmental regulation is desirous in the e-‐commerce field?

9. What are the alternatives to governmental regulation that might be used?

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Lecture 2: Data Protection (Tuesday, August 6: 9:00 – 13:00)

TOPIC Compulsory reading

1. Defining personal data

• Data Protection Directive (95/46/EC)

(http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML)

2. Scope of EU Data Protection Law

• Data Protection Directive (95/46/EC)

• Peter Hustinx (2013), “EU Data Protection Law -‐ Current State and Future Perspectives”, High Level Conference (14 pages) (http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Speeches/2013/13-‐01-‐09_Speech_Tallinn_EN.pdf).

• Lokke Moerel (2011), “Back to basics: when does EU data protection law apply?” International Data Privacy Law, 1 (2): 92-‐110 (18 pages) (Full text at Oxford Journals).

Description:

In this lecture we will discuss the key concepts of the main default rule for the applicability of EU data protection law and I will provide you with a uniform interpretation thereof based on the legislative history of the Directive. We will discuss the differences in the manner in which the applicability rule is implemented in the Member States and the resulting divergent interpretations by the national Data Protection Authorities. Further, we will evaluate the present position of the Article 29 Working Party.

You will be asked to analyse the present means used by websites worldwide to collect the personal data of their visitors, like cookies, JavaScript, ad banners, and spyware. Finally, after this lecture you should be able to evaluate, whether the applicability rule should lead to application of the EU data protection rules to the processing of personal data of EU citizens by different websites.

Legislation

• Data Protection Directive (95/46/EC) (http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML)

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• Lokke Moerel (2011), “The long arm of EU data protection law”, International Data Privacy Law, 1 (1): 28-‐46 (18 pages) (Full text at Oxford Journals).

• Davis, Dai (2011), “Businesses face tougher EU data protection laws”, Computer Weekly (1 page) (Full text at Business Source Complete).

Questions:

1. Identify the EU sources of law governing data protection and summarise the aim of the legislations.

2. What activities of a company doing business online are regulated by data protection laws?

3. What is personal data? Are an e-‐mail address and a mobile number covered by the definition of personal data?

4. Discuss the applicable definitions in the Data Protection Directive (95/46/EC).

5. Which are the principles relating to data quality?

6. To what extent is it allowed to use personal data to market a product or service?

7. To what extent is it allowed to transfer, exchange, or sell personal data to third parties? When would it be lawful for an e-‐tailer to purchase computerised mailing lists from companies that supply lists of potential customers for marketing purposes?

8. What is the role of the National Data Protection Authority under the Data Protection Directive? Does your home country have a government official with data protection responsibilities?

9. Is a company doing business in the EU required by law to have a privacy policy? What practical reasons would a company have to adopt such a policy? List five provisions that you recommend a company to include in a privacy policy.

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Lecture 3: Data Protection (cont.) & Online Advertising (Wednesday, August 7: 9:00 – 13:00)

Topic Compulsory reading

I. DATA PROTECTION

1. International data protection

• Data Protection Directive (95/46/EC) • Gabriela Zanfir (2012), “EU and US Data Protection Reforms.

A Comparative View”, EIRP Proceedings, Vol 7 (7 pages) (Full text at Statsbibliotek).

2. Reforms and efficiency of data protection laws

• Patrick van Eecke et.al. (2012), “THE FIRST INSIGHT INTO THE EUROPEAN COMMISSION’S PROPOSAL FOR A NEW EUROPEAN UNION DATA PROTECTION LAW”, Journal of Internet Law (5 pages) (Full text at Business Source Complete).

II. ONLINE ADVERTISING

3. What is online Advertising

• Lecture slides

4. The EU legal framework

• Ashley Winton, Neal Cohen (2012), “Proposed EU framework – Online Advertising, E-‐Commerce and Social Media”, Technology Newsflash (5 pages) (http://www.whitecase.com/articles-‐04172012/#.UbW4Tuu18nU)

• Taoufik Bouraoui (2010), “Spam between Law and Reality”, Review of European Studies, Volume 2, Issue 2 (8 pages) (Full text at Statsbibliotek).

Description:

Data Protection

In the spring of 2009, the European Commission launched a public consultation on the need for review of the current EU legal framework for data protection in view of the challenges posed by new technologies and globalisation. In this class we will have a look at the EU reforms and whether they are efficient. Moreover, we will analyse international cooperation in the area of data protection.

Online Advertising

In 2010, for the first time in the history of Google, the income originating of the online advertisement in the United Kingdom was superior to those of all the main newspapers of the country together (The Times, Financial Times, Evening Standard,The Sun, Daily Mirror).

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However, online advertisement is different, for different users. People no longer wishes to surf the Web without a clear purpose. Now what the user wants is to enter a site as rapidly as possible, do what he needs to do and leave as soon as he can.

In this lecture, we will consider the risks and legal measures that need to be made in order to avoid a negative effect created by online advertisement, which can ruin brand and advertisers reputation. The risks that exist cover different subjects such as Intellectual Property, advertisement law, misleading advertising, copyrights, SPAM and data protection, and even penal consequences such as defamation.

Legislation

Data Protection


Online Advertising

• E-‐Privacy Directive (2002/58/EC) (http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0058:en:HTML)


• Unfair Commercial Practices Directive (Directive 2005/29/EC) (http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF)


Data Protection

• Peter Hustinx (2011), “Towards more effective Data Protection in the Information Society”, datospersonales.org (http://www.edps.europa.eu/EDPSWEB/webdav/shared/Documents/EDPS/Publications/Speeches/2011/11-‐04-‐14_Article_Madrid_DPA_EN.pdf).

Online Advertising

• Nicola Lugaresi (2004), “European Union vs. Spam: A Legal Response”, CEAS 2004 -‐ First Conference on Email and Anti-‐Spam, July 30-‐31, 2004, Mountain View, California, USA (ftp://ftp.research.microsoft.com/users/joshuago/papers-‐2004/145.pdf).

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Questions:

Data Protection

1. Can you name some countries outside the EU that have data protection laws? How are those countries’ laws similar to or different from the EU Data Protection Directive?

2. Are there any limitations regarding the transfer of personal data to third countries? Compare the Safe Harbour Principles with the eight principles under the Data Protection Directive.

Online Advertising

1. What is the difference between advertising and direct marketing? What is SPAM?

2. How is advertising defined under EU law? What are Information Society Services?

3. Identify the EU legal framework related to advertising. Identify also the legal framework in your home country, which is relevant to online advertising and direct marketing.

4. Which are the major principles an e-‐tailer should comply with when advertising on a website?

5. What is the relationship between Art. 7 of the E-‐Commerce Directive (2000/31/EC) and Art. 13 of the Directive on Privacy and Electronic Communications (2002/58/EC)?

6. Which information must be present on a website containing advertising according to the E-‐commerce Directive (2000/31/EC)? Explain why it is important for customers to get this information. What would an e-‐tailer be required to do in order to send direct marketing e-‐mail to recipients in the particular country?

7. What is the country of origin principle? Why is it important?

8. May Member States protect their consumers from certain advertising coming from e-‐tailers established in another Member State?

9. Is there any difference between e-‐mail SPAM and SMS-‐SPAM? Should different approaches regarding the protection apply?

10. Does the EU regime against the proliferation of unsolicited messages make any differences to the flood of reaching your mailboxes?

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Lecture 4: Online Advertising (cont.) (Monday, August 12: 9:00 – 13:00)


1. Behavioural Advertising

2. Viral Advertising

• Avi Goldfarb and Catherine E. Tucker (2010), “Privacy Regulation and Online Advertising”, Management Science 57.1: 57-‐71 (15 pages) (Full text at Statsbibliotek).

3. Self-‐regulation • Directorate General (2006), ”Self-‐Regulation in the EU Advertising Sector”, Background Paper (http://www.asa.co.nz/pdfs/Madelin%20Report.pdf) (ONLY Chapter 1 & 2, pp. 8-‐17) (9pages)

NB: same article as in Lecture 1

Description

The theory behind behavioral advertising is, pretty simple. Most people are bombarded with ads most of the time, especially when web surfing. As a result, we tune them out. Because of the usual advertising practices, we might be better at tuning out ads that are in the same context as the content we’re reading. In other words, someone reading content on a web site about where the best ski slopes are just might have completely ignored an ad for your lovely Aspen getaway.

In this class we have a look at privacy implications on online advertising.

Legislation


• E-‐Privacy Directive (2002/58/EC) (http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0058:en:HTML)


• Unfair Commercial Practices Directive (Directive 2005/29/EC) (http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF)


• STEVEN C. BENNETT (2011), “ REGULATING ONLINE BEHAVIORAL ADVERTISING”, John Marshall Law School, 899-‐961 (Full text at Statsbibliotek).

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Questions:

1. How will Location-‐Based Services affect individuals?

2. What is viral advertising? What is behavioural advertising?

3. Pick an EU Member State and research how that country has implemented the Directive on Privacy and Electronic Communications (2002/58/EC)? Has this particular country chosen to prohibit more or less SPAM than required by the Directive?

4. What is the difference between opt-‐in and opt-‐out? What are the differences between opt-‐in and confirmed opt-‐in? Is the opportunity to un-‐tick a ready-‐ticked opt-‐in box is in fact opt-‐in? Is consent viewed the same way in the EU and the U.S.?

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Lecture 5: Intellectual Property (IP) (Wednesday, August 14: 9:00 – 13:00)


1. Introduction to IP

a. Copyrights

b. Trademarks

c. Databases

2. Short introduction to Intellectual Property: http://digitalenterprise.org/ip/ip.html

3. the EU legal framework

4. Copyright Directive 2001/29/EC: http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF

5. Database Rights Directive 96/9/EC: http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1996:077:0020:0028:EN:PDF

6. International regulation

7. The TRIPS Agreement: http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm

8. How to apply IP when doing business online?

• Lien Verbauwhede, “Intellectual Property and E-‐commerce: How to Take Care of Your Business’ Website”, SMEs Division, WIPO (http://www.wipo.int/export/sites/www/sme/en/documents/pdf/business_website.pdf).

Description:

Over the last decade, the counterfeiting and piracy phenomenon has risen to very dangerous dimensions and has become one of the most devastating problems facing world business.

The primary objective of this lecture is to impart understanding of intellectual property law in general and in particular as it applies to the Internet, especially to distribution of information. Therefore, you need to understand how recent developments of the Internet challenge traditional intellectual property law.

You will not only get an explanation of the legal rules as they currently stand but you will also be encouraged to critical evaluate them. This involves analysing and challenging the assumptions upon which the rules are based, and discussion of alternative regulatory possibilities.

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Legislation

• Copyright Directive 2001/29/EC: http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF

• Database Rights Directive 96/9/EC: http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1996:077:0020:0028:EN:PDF

• (Protection of computer programs Directive 2009/24/EC: http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:0022:EN:PDF)

• The TRIPS Agreement: http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm


1. Ana Eduarda Santos (2013), “Rebalancing Intellectual Property In The Information Society: The Human Rights Approach”, Cornell Law School Inter-‐University, http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1075&context=lps_clacp)

2. OVERVIEW by World Intellectual Property Organisation – WIPO

Questions:

1. What is the objective of Intellectual Property Rights?

2. How do you receive protection on the Internet?

3. What is framing? What are the legal risks associated with an e-‐tailers use of frames on its website to incorporate content from websites?

4. How about including another page as part of your page? (E.g., using frames or with image tags?)

5. What is banner-‐ad keying? Discuss the application of trademark law to the advertising practice of banner-‐ad keying by search engines and makers of adware.

6. Analyse the legal framework. Are they adequate? Do we need an alternative approach?

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Lecture 6: Linking & E-‐Contracting (Friday, August 16: 9:00 – 13:00)


I. Linking

1. Introduction to linking • Lecture slides

2. Different means of linking

• Katia Bodard, et al. (2004), “Deep linking, Framing, Inlining and Extension of Copyrights: Recent Cases in Common Law Jurisdictions” (http://www.murdoch.edu.au/elaw/issues/v11n1/meyer111_text.html).

3. Cases • The Newsbooster decision: http://news.cnet.com/2100-‐1023-‐942187.html

• The Kranten.com case: http://www.ivir.nl/rechtspraak/kranten.com-‐english.html

II. Electronic Contracting

1. Overview of e-‐contracting

• Richard Jones, Dalal Tahri (2008), ”Online selling and contracting: An overview of EU rules”, Computer Law & Security Review, Volume 27, Issue 4, Pages 402–406 (5pages) (full text at SienceDirect)

2. EU law: information requirements

• Richard Jones, Dalal Tahri (2010), ”EU law requirements to provide information to website visitors”, Computer Law & Security Review, Volume 26, Issue 6, November 2010, Pages 613–620 (7pages) (full text at SienceDirect)

Description

LINKING

Linking has been challenging the law of copyrights since the introduction of the Internet. The fast moving technology advancements pose a threat to the copyright regime by providing fast and easy methods to copy and transfer copyrighted data from one place to another. Linking is the most common technique used for copyright infringement by the users of the Internet.

In this class, we shall discuss the provisions with regard to the liability for infringement of copyrights in relation to linking, and also discuss the liability of the providers in case of infringement of copyrights.

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E-‐CONTRACTING

Legislatures facing electronic commerce issues must confront a basic question: Do electronic interactions require a fundamental reform in this area of law, or do the underlying principles and structures remain valid?

In this class we will have a look at the rules governing contracting and selling online. Do they differ to the principals we know from traditional contracts? Further, we will analysis the issues that a business should consider before setting up an on-‐line sales process.

Legislation

LINKING

• Copyright Directive 2001/29/EC: http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF

E-‐CONTRACTING

• E-‐Commerce Directive (2000/31/EC): http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:178:0001:0016:EN:PDF

• Distance Selling Directive (97/7/EC): http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997L0007:en:HTML

• Unfair Contract Terms Directive http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1993:095:0029:0034:EN:PDF

• E-‐Signatures Directive (1999/93/EC): http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31999L0093:en:HTML


• Andrew Murray (2010), ”Information Technology Law: The Law and Society”, Oxford, chapter 16 (12 pages) (Pdf File attached to email)

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Questions:

LINKING

1. What is linking? Are there different types of linking (technically? Legally?)?

2. What are the risks to an e-‐tailer of linking to another website? Discuss copyright and trademark laws and whether simply linking is likely to violate either of these types of laws.

3. What is click-‐fraud? How is it related to liking and affiliate deals?

4. What legal question did the court address in the Newsbooster case? How did the court answer the question? What was the reason for the court’s decision?

5. What legal question did the court address in the Kranten.com case? How did the court answer the question? What was the reason for the court’s decision?

6. What are the similarities and differences between the linking that occurred in the Newsbooster case and the linking that occurred in the Kranten.com case?

E-‐Contracting

1. What is an electronic contract?

2. Is it possible to form contracts online

3. How is an electronic contract formed? Offer? Acceptance?

4. Analyze Section 3 (Contracts concluded by electronic means, p. 11) of the E-‐Commerce Directive

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Lecture 7: E-‐Contracting (cont.) (Monday, August 19: 9:00 -‐ 13:00)


1. The Distance Selling Directive


2. Unfair terms in consumer contracts


3. International contracting

• The Newsbooster decision: http://news.cnet.com/2100-‐1023-‐942187.html

• The Kranten.com case: http://www.ivir.nl/rechtspraak/kranten.com-‐english.html

3. Review of the legal framework/the future

• Christine Riefa and Julia Hörnle (2009), ”The Changing Face of Electronic Consumer Contracts in the Twenty-‐first Century: Fit for Purpose?”, in Lilian Edwards and Charlotte Waelde (ed.), “Law and the Internet”, (3rd ed.) (15 pages) (Pdf File attached to email)

Description

In this class the main focus will be on consumer contracts entered into on the Internet. Contract terms define the rights and duties of the parties who are bound to them. How can we ensure that consumers are aware of their rights, especially when buying goods/services from abroad?

Legislations:

• E-‐Commerce Directive (2000/31/EC): http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:178:0001:0016:EN:PDF



• E-‐Signatures Directive (1999/93/EC): http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31999L0093:en:HTML

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Questions:

5. Check out Conditions of Use on Amazon.com (US) and Amazon.com (United Kingdom) in relation to electronic contracting (formation etc.) and limitation of liability – are there any differences?

6. Analyse the Distance Selling Directive:

a. How can the information in Article 7 and 8 be given? Must it be in writing, meaning in physical, ore is an e-‐mail, a webpage or the like sufficient?

b. How can it be applied to new medias (e.g. m-‐ and t-‐commerce)?

c. How many days does the consumer have to cancel the contract?

d. Is it possible to cancel an e-‐contract for the sale of a sealed computer-‐software or software downloads?

e. How many days does the e-‐tailor have to refund the price?

7. What are alternatives to displaying the terms of contracts on the Internet? Or is the current way of doing so adequate?

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Lecture 8: Jurisdiction (Wednesday, August 21: 9:00 – 13:00)


1. Jurisdiction and the Internet

• E. GUSAKOVA (2004), “Electronic Transactions: Jurisdictional Issues in the European Union”, ELSA SPEL 2004(1) (6 pages) (http://www.elsa.org/fileadmin/user_upload/elsa_international/PDF/SPEL/SPEL04_1_GUSAKOVA.pdf)

• Ong, Chin Eang (2005), “Jurisdiction in B2C E-‐Commerce Redress in the European Community”, Journal of Electronic Commerce in Organizations (13 pages) (full text via Statsbiblioteket)

2. International solutions?

• Mark A. Stoney, Susan Stoney (2003), "The problems of jurisdiction to e-‐commerce – some suggested strategies", Logistics Information Management, Vol. 16 Iss: 1, pp.74 -‐ 80 (7 pages) (full text via Statsbiblioteket)

Description:

The Internet is a global medium that is open across all frontiers, and once posted, a website is global from the outset. Likewise, transactions, as well as commercial and promotional material on websites become global. More frequently and more directly, enterprises of all sizes trade with and advertise to suppliers and customers (both businesses and consumers) located abroad.

Inevitably, some of these dealings result in commercial disputes that must be resolved privately or at law. In addition, many e-‐commerce transactions raise questions of compliance with applicable public laws and regulations.

In this class we will consider important aspects of international contracts concluded through electronic means, and analyse which forum has jurisdiction to try potential conflicts that may arise from such contracts. When attempting to supply an answer to the above-‐mentioned question, we need to define e-‐commerce and to identify specific issues for e-‐commerce contracts in order to propose possible solutions.

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Legislation

• EC Convention on the Law Applicable to Contractual Obligations (Rome 1980): http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1980:266:0001:0010:EN:PDF

• Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels): http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:EN:PDF

Questions:

1. What is Jurisdiction, Governing Law and Enforcement

2. Jurisdiction:

a. Should the court in country X or country Y have the jurisdiction to hear the case?

3. Choice of Law:

a. Should the case be decided according to the law of country X, Y or (…)

4. Enforcement

a. Is it possible to enforce the court or arbitration decision of another country?

5. Does any of the above (Jurisdiction, Governing Law and Enforcement) cause difficulties on the Internet/Cyberspace?

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Lecture 9: Social Media/New Media (Thursday, August 22: 9:00 – 13:00)

Topic

Compulsory reading

1. Mobile commerce and the law

• Evelyne Beatrix Cleff (2009), “Effective approaches to regulate mobile advertising: Moving towards a coordinated legal, self-‐regulatory and technical response”, Computer Law & Security Review 26(2), p. 158 – 169 (12 pages) (full text at ScienceDirect)

2. Social media and the law

3. Nye, Sandra G (2011), “Law and ethics-‐-‐social media issues”, Journal of Employee Assistance, July 2011 (2 pages) (full text at Statsbibliotek)

4. Toby Merrill (et.al.) (2011), “Social Media: The Business Benefits May Be Enormous, But Can the Risks -‐-‐ Reputational, Legal, Operational -‐-‐ Be Mitigated?”, InfoLawGroup (13 pages) (http://www.acegroup.com/us-‐en/assets/ace-‐progress-‐report-‐social-‐media.pdf).

Description

With more than 600 million Facebook users around the world, social media sites are fast becoming major communications platforms for businesses. But relatively few companies are aware of the legal ramifications of using social media.

A company using social media activities (e.g. setting up a Facebook profile) must consider a number of legal aspects, such as data protection, copyright and trademarks.

Cases:

• Facebook Ireland Ltd. / Facebook Inc. v Independent Data Protection Authority of Schleswig-‐Holstein, Germany (Facebook is not subject to German data protection law) (http://idpl.oxfordjournals.org/content/early/2013/05/14/idpl.ipt007.full.pdf).

Complementary reading

• Andreas Splittgerber & Christian Leuthner (2012), “Social Media Communication and SPAM – A European Perspective” (11 pages) (www.itechlaw.org/events/files/Splittgerber,%20Andreas_Paper.pdf).

• LOTHAR DETERMANN (2012), “Social Media Privacy: A Dozen Myths and Facts”, Stanford Technology Law Revue. 7 (14 pages) (http://stlr.stanford.edu/pdf/determann-‐socialmediaprivacy.pdf).

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Useful links:

• Schönherr lawyers: http://www.schoenherr.eu/news-‐publications/legal-‐insights/social-‐media-‐and-‐the-‐law-‐what-‐businesses-‐should-‐know

• euobserver.com: www.euobserver.com/justice/119561

Questions:

1. How can the law catch up with technology developments?

2. Can we have a traditional legal framework for e-‐commerce?

a. Fx: Can Facebook and user privacy co-‐exist?

3. Can we articulate widely accepted principles in international e-‐commerce?

4. Can technology be used as a mean for regulation?

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Lecture 9: Social Media/New Media (cont.) & Question hour (Friday, August 23: 9:00 – 13:00)

Topic

Compulsory reading

1. RFID • Lecture slides

2. Cloud computing • Lecture slides

Description:

In this class we will analyse the existing legal framework applicable to Radio Frequency Identification technology to identify and address potential concerns. Some key topics must be taken into consideration: Privacy and Security, Standardisation and Radio Spectrum, and Intellectual Property Rights.

Cloud computing is expected to become more and more widespread in the future. In most cases, much data in a cloud solution will consist of personal data. Therefore the focus of this class will be on legal matters relating to personal data.

Useful links:

• CE RFID: http://www.rfid-‐in-‐action.eu/public/results/legal-‐aspects/ • Who is Who Legal: http://whoswholegal.com/news/features/article/18246/


• Armbrust, Michael (et.al.) (2010), ”A view of cloud computing”, Communications of the ACM, Volume 53, Issue 4, Page 50 – 58 (full text at Statsbibliotek)

• Yu “Andy” Wu, Victor R. Prybutok, Chang E. Koh, Bartlomiej Hanus, (2012) "A nomological model of RFID privacy concern", Business Process Management Journal, Vol. 18 Iss: 3, pp.420 -‐ 444 (full text at Statsbibliotek)