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)

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