Doing Business in the
Information Age
What is ecommerce?
Includes:
Online business to business transactions
Online business to consumer
transactions
Digital delivery of products and services
Online merchandising
Automated telephone transactions eg
phone banking
EFTPOS and other automated transfer
systems
Contracts
Law of contracts
Issues for e-commerce
Contracts - the basics
Offer
Acceptance
Intention to enter legal relations
Consideration
Legal capacity
Genuine consent
Offer
Clear statement of terms
Person who makes it is prepared to be
bound
Not just an invitation to treat
Acceptance
Unqualified agreement to terms of offer
Express or inferred by conduct
Cant be forced on unwilling person
Time of creation of
contract
Contract formed at time and place the
acceptance is communicated to offeror
Termination or
revocation of offer
Can be revoked prior to acceptance
Revocation must be communicated to
offeror
Certainty
Essential parts of contract must be clear
and complete
Courts may imply a meaning
Uncertain term can be severed
Consideration
Valuable consideration
Passing between parties to contract
Cant be unlawful or immoral
Intention
Express
Inferred from the circumstances
Must be genuine consent - not obtained
under duress
Capacity
Age
Intellectual capacity
Terms and conditions
Express
Implied
Formalities
Oral or written
Writing required under statute eg for sale of
land
Practical concerns
for e-commerce deals
Identity and capacity of seller or buyer
Authenticity of offer and acceptance (digital
signatures)
When and where contract formed
Governing law
Terms and conditions (click through)
Practical Concerns for
e-commerce deals(2)
Agreement
on electronic payment
system
Security of information exchanges
Consequences on breach
Storing electronic data to prevent
alteration
Practical Concerns for
e-commerce deals(2)
Agreement
on electronic payment
system
Security of information exchanges
Consequences on breach
Storing electronic data to prevent
alteration
Electronic Transactions
Act
Federal law with mirror State laws (NSW,
VIC, WA)
To remove obstacles to electronic
transactions, communications, signatures
and record keeping
1 July 2001 applies to all federal laws unless
exempted
Electronic Transactions
Act(2)
Validates electronic transactions
Given in writing met electronically now
Govt can specify technology requirements
Business requirement valid only with consent
Signatures-parties free to agree on method
Production and retention of documents
Method must ensure integrity and accessibility
Time and place of dispatch and receipt of
communications
Electronic
Transactions(3)
Time of dispatch is when it enters the
first information system outside control of
sender
Time of receipt is when it enters an
information system designated by the
addressee for receiving it.
Place of dispatch and receipt taken to be
respective places of business
Electronic Transactions
(4)
Record
says:
keeping OK electronically if law
Information to be recorded in writing
A written document to be kept
An electronic communication to be kept
Records
must be kept identifying
origin, destination, time of sending
and receipt of electronic
communication
Making a contract
What terms do you want to include?
What risks are you trying to avoid?
How will disputes about contract be dealt
with?
What is the governing law?
Who will sign it?
Setting up a
Business Entity
Sole trader
Partnership
Company
Trust
Sole trader
All
profits
All losses
All liabilities
Own name or choose business name
Register business name
Partnership
Carrying
on a business
In common
With a view to profit
Established by written agreement, oral
agreement or conduct
Partnership
Partnership
Act 1892 (NSW)
Corporations
Law: Not more than 20
partners (except doctors, solicitors and
accountants)
Partnership
Profit
Joint
sharing
and several liability
Fiduciary
duties to partners
Companies
Corporations
Act
Artificial legal entity
Liability of members can be limited
Companies
Constitution
Directors
Limits
public
duties
on raising money from the
Companies
The
corporate veil
Lifting
the veil: fraud, agency, paying
more dividends than profit, incurring
debts when company insolvent
Companies
Form a company by:
Registering name
Lodge application with ASIC
Registered office
Names of directors and members
Which structure?
Where
are you getting your money
from?
What is your risk/liability?
Who will be in control?
What are the ongoing costs?
What is a domain
name
Human
friendly form of an Internet address
Actual address is an Internet Protocol (IP)
number
System globally administered by ICANN
Generic top level domains (gTLDs)
.com, .org, .net, .edu, .gov, .biz
Country
code top level domains (ccTLDs)
Domain name
registration in Australia
open
and closed domains
open - .com, .org, .net, .info, .biz
closed - .gov, .edu, .mil, .museum
auDA administers .com.au space
to register in .au space must be a
commercial entity registered and
trading in Australia..
Domain Names
(cont)
Licensed
on a first come-first served basis
Domain Names never meant to confer
property rights.
Clash with Trade Marks.
auDA has a dispute resolution scheme which
applies to all domain names registered or
renewed from 1 August 2002.
ICANN has the UDRP for .com etc domains.
Domain Names and other
business identifiers
Trade
Marks
Personality Rights
Place Names
Tension with domain names
Reverse domain name hijacking
cybersquatting
