Internet Jurisdiction and Regulations Legal Issue Brief Discussion

Q1 • • • • • • • • Identify one issue from the weekly reading and create a Legal Issue Brief. (week 9 chapter 11&12) In a Word document, compose a one-page legal brief that follows the order indicated below: Title (Issue summarized in 2-5 words) Student Name Issue (1-3 sentences) Facts (3-4 sentences) Student position (2-4 sentences) Rationale (5-7 sentences) Q2 • • • • • • • • Identify one issue from the weekly reading and create a Legal Issue Brief. (week13 chapter 17) In a Word document, compose a one-page legal brief that follows the order indicated below: Title (Issue summarized in 2-5 words) Student Name Issue (1-3 sentences) Facts (3-4 sentences) Student position (2-4 sentences) Rationale (5-7 sentences) Evidence of Electronic Record LAW 402: LAW OF E-COMMERCE UPON COMPLETEION OF THIS WEEK’S ACTIVITIES, YOU WILL BE ABLE TO: • Identify legal issues that may arise because of the use of electronic means. • Summarize the law of evidence and its role in e-commerce transactions. • Analyze the admissibility of electronic records. • Explain the hearsay rule and how it applies to electronic records. LAW OF EVIDENCE The law of evidence aims to provide certainty within the justice system. As a result of this purpose, it is a critical aspect of the legal system. THREE THRESHOLD RULES FOR EVIDENCE Evidence must be: 1.Relevant 2.Reliable 3.Best available TRADITIONAL ASPECTS OF EVIDENCE Historically, evidence had to be the written original and a signature was often required. EVIDENCE OF ELECTRONIC RECORDS •Electronic records can be used for evidential consideration, but in some cases courts have rejected their admission or credibility. •All parties should maintain records of documents in the form in which the documents were issued- not doing so could create a problem of admissibility should they be deemed necessary in a court decision. TWO IMPORTANT EXCLUSIONS FOR CONSIDERATION 1. The exclusion of hearsay is inadmissible because of its unreliability. 2. The exclusion of secondary evidence if the original document is available. EXCLUSIONS TO THE SECONDARY EVIDENCE RULE If a required document is in another party’s possession and that party fails to produce the original document after a Notice to Produce is issued, a copy of the original may be admitted as evidence . In the absence of such subpoena for documents, the original document is the only admissible document. Other exceptions: consent, impossibility of original copy, lost document and certain public records. LEGISLATION ABOLISHING THE ORIGINAL DOCUMENT RULE Under the Evidence Acts of the Commonwealth in Australia the original document rule has been abolished. This is also true of South Wales and Tasmania. Because of the Acts in these jurisdictions, the best evidence rule no longer exists. A party may now submit a copy of a document made by a reproduction device. A common example of this type of document is a transcript of words. ADMISSIBILITY OF ELECTRONIC DOCUMENTS Electronic documents and copies are now permissible in those jurisdictions, but the weight of the document as credible evidence is left up to the courts to determine. INTERNATIONAL PERSPECTIVE (UNCITRAL) Model Law of Electronic Commerce (1996): •Includes provisions for “data message” admissibility and credibility. • Data is defined as “information generated, sent, received or stored by electronic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy” ORIGINALS AND COPIES: ENVELOPES AND ATTACHMENTS Determining which party has the “original copy” in relation to email causes several difficulties because of: • Multiple copies of an email are created, copied and stored. •The recipient has a different document than the original email created and sent. •Court failure to recognize the distinction between analogue and digital data. In addition, the intent of the sender must be considered. CONCLUSION When conducting business over the internet, it is recommended that: •All parties retain documents in their issued or presented form. •All parties should refrain from attempting to change the medium as the consequence of such action is often undesirable and unpredictable. Jurisdiction and Defamation in Cyberspace L AW 402: L AW 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. …
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