Doing Business in the Information Age

John Corker
GENL0230

What is e-commerce?
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

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) Law: Not more than 20

Corporations

partners (except doctors, solicitors and accountants)

Partnership
Profit Joint

sharing and several liability duties to partners

Fiduciary

Companies
Corporations

Act

Artificial

legal entity Liability of members can be limited

Companies
Constitution Directors Limits

duties

on raising money from the public

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