New legal issues that cannot be resolved by existing laws in the UK.

Abstract

Evolving pace of contemporary society is using silicon chip based technology to speed up commodity. General use of electronic technology via the Internet developed the term e-commerce that created some issue to govern community. It created new type of community named as ‘virtual community’[1], where the world become narrow and conventional territorial fence has been concealed by which global commerce has speed up and information does not check on custom office.

Advertise via the Internet, consumer’s order via the Internet, confirm the delivery date and time via the Internet, payment via the Internet, invitation to treat via the Internet, offer via the Internet, acceptance via the Internet, information make available via the Internet such as news papers, ADR via the Internet etc. are identified practice over the e-commerce and gradually increasing day by day.

> Some sort of tax methods, which were developed and winnowed during the long practiced has been looking for amendment. For example, VAT is a common beneficial tax system by which newspapers are tax-free to supply people right to information. On the other hand, VAT is charged on telephone call payment that the payment may be for reading newspaper via the Internet.

New technology over the e-commerce has been created some debate in the conventional practice of intellectual property rights[2], such as Mp3 debate. The intellectual property rights disputes over the e-commerce are the main issues to solve. Public have already accepted new technology of e-commerce that never been restrict and conventional laws are interpreting to protect conventional copyrights policies.

> Identification of user over the Internet is also a major legal issue in e-commerce. Authentication of digital signature seems to be a possibility of identification, which must have to be upheld by legal practice.

The Internet provides very fast and immediately information to made contracts if parties may be on long distance. So many legal issues arises over the Internet to recognise offer, acceptance etc. principle to regulate contract and continue conventional contract theories.

E-commerce facilitate to supply hard and child pornography via the Internet. Few new type of criminal exploitation over the cyber space has been found such as Hacking may cause data erase or contaminate. Criminal activities must be minimise by virtue of the e-commerce is not crime free. Defamation, fraud, harassment etc. also hinder business activities, which are conventional crimes that facilitate by the cyberspace.

> In the essay I would try to identify the term e-commerce at first in short after than would try to search new legal issues over the e-commerce where the criminal exploitation must be minimise. At the conclusion I would try to find possibilities for resolve the new legal issues in e-commerce.

Essay

‘Neuromancer’ is the fiction novel by Willam Gibson[3] where the cyber space was conceived and has been accelerate e-commerce, as known main technology is the Internet. It is a very different kind of creature than has ever been seen in the universe before, while some of the provisions relating to environmental extent are clear enough, others are obscure and potentially ambiguous.[4] At the inception of the human trade society distribution and ownership of land was the main issue in commerce. In the second generation of commerce extended industrialization, which created issue of intellectual property right. Now this is the age of the Internet and created main issues are distribution and ownership of web and space.

> A range of trade and business are covers as an umbrella term by e-commerce. Main activities of e-commerce are: sales –tangible goods- software information, provision of electronic services for example information services, provision of personal services- banking, insurance, provision of leisure services, travel, games, gambling, facilitating business through electronic transactions, virtual industry.

> Main dispute of the Internet for hitherto that play role to potential practice, Reno, Attorney General of the united states, ct al. Vs. American Civil Liberties union (ACLU) ct al. has been decided and the American court define the Internet as: “The Internet is an international network of interconnected computers.”[5]

The identification of the Internet is already accepted in practice. Neither the Act nor the instruction essays has an authentic definition of the word ‘Computer’.[6] According to Andrew Terrett the Internet[7] is: “ ‘... is a huge electronic resource’; ’The Internet is a network of computers that allows people to communicate with other people from all over the world’; ‘ It’s is a hacker’s paradise and a computer security nightmare’; ‘It’s the future of commerce’; ‘ It’s a jargon-ridden techno-jungle.”

More than 150 million people, worldwide were using the Internet during the start of 1999.[8] Estimates suggest that at least more than 200 million people have access to the Internet and this number is growing all the time.[9] The anticipated explosion in e-commerce has created many legal questions for example: If virtual communities are the prediction of the expectations, which legal system should govern them? Can conventional legal system obtain a means to create of virtual legal systems, applied to cyber-nations, which might or might not correspond to today’s real-world nation-states? How the law can be enact in a community, which seems be short of a sovereign of the type Austin proposed as necessary for the formation of law[10], or the rule of recognition of HLA Hart?[11] What would replacement for the parliament and courts of worldwide communities?[12] Might the legal issue of such virtual legal systems include mechanical instrument instead of the natural and juristic persons with which society is familiar, but also the virtual personae often adopted by hardened Internet users and electronic role-players, which may differ in name, sex and race from the corresponding “real world” persona of that individual?[13]

> Hypertext technology seems alternative of leaflet with which promote the Internet. The Internet launches information rapidly by the means of hypertext that electronic commerce is revolutionizing and spending habits and challenges the way of business, for example American government had asked and the court said to divide the company for fair competition of business.[14]

A major issue for jurists at the present time is how to deal with the rapid development of the Internet site, the prospect of ‘Information superhighway’ telecommunications systems that permit the rapid, indeed virtually instantaneous transmission around the world of all media print, pictures still and moving, sound, and combinations. In short we may say, development and conservation of the new information environment[15] are a discussion point of big issue.

Governments must have to assurance that the information superhighway is not altered for offence, for money‑laundering or for deterioration general security. Mrs. Justice Arden believes the new challenges for Contract[16], tort and Criminal Law by electronic commerce however she propose, it should not major change in our law for two reasons:

· “the principles of our civil law have been winnowed out over many centuries. We should not throw them over just because there is a new medium of communication.

> · Freedom of choice as respects the medium of communication will remain. It is therefore desirable to have the same law for on-line activities as for off-line activities as far as possible”[17]

> Accurate identification of new legal issues in e-commerce is obscure. The main probabilities of new legal issues in e-commerce that the characteristics has been found are:

· Contradictions on conventional tax theories.

· Legal issues created by new technologies on conventional intellectual property rights principles.

· Obscure identification of e-technology users and legal concept of terrestrial jurisdiction.

· Contract principles.

· Criminal exploitation.

> Contradictions on conventional tax theories:

Tax collection depends upon trade that the spent source of the government. E-commerce is speeding and changing the trade technique, so the tax revenue system must be change analogy. The main revenue source was land revenue when the economy was based upon agriculture. Industrialisation changed the revenue system by virtue of trade source had been extended to industrial productions. As the same way tax system might be modify for information technology.

> If any software installation CD produced in the America and imports in the United Kingdom than tax would be charged on the custom office in accordance with conventional tax laws and principles. But, if any consumer downloads the same software in the UK via the Internet than the trade would be tax free in accordance with the same laws.

> For this study question may arise, ‘is the software goods or merely information?’ by virtue of tax principle gives privilege for information. The Divisional court said that confidential information was not 'property' within the meaning of S.4 of the theft Act 1968 in the verdict of Oxford v: Moss case.[18]

> The concern was software operate to administer the community revenue (poll tax) and has far-reaching implications for software developers who should look carefully at their standard term contracts and level of insurance cover and the main debate was the alteration and deletion of computer data by a 'hacker' could constitute criminal damage within S 1(1) of the criminal Damage Act 1971 In the St Albans city and district council v: International computers Ltd [19] case. In this case Sir Iain Glidewell stated that software could constitute goods. In the same case [1995] Scottbaker J had stated that, by itself hardware could do nothing, the really important part of the system is the software.

> E-commerce seems opposition to consumer’s right of information without tax on few practice of conventional laws. Contemporary tax system VAT (Value Added Tax) provides privilege for people to get information without paying tax. Despite the immunity policy, public are paying VAT for reading news information via internet by virtue of paying VAT for telephone call that used to read or listen to news.

> Legal issues created by new technologies on conventional intellectual property rights principles:

This area is the main legal issue that created by e-commerce. Trade of ideas creates monetary value in the cyberspace, which is one of the distinguishing characteristics of e-commerce. Without the physical production, ideas can be effect expensive value in the cyberspace that created legal issues. The terrain of cyberspace becomes marked by the struggle for control over that intellectual real estate.[20]

> Instead of cyberspace, intellectual property right is very sensitive itself by virtue of monetary value creates without tangible production. But, before the practice of e-commerce it, the intangible property was exchanging with tangible goods, such as books, tape recorder, videodisc etc. Cyberspace facilitates to distribute ideas without tangible property. So, it is creating more sensitive legal issues.

> This kind of technological tunnel vision seems to afflict content providers and their allies whenever any new copying technology arrives. When VCRs first came on the market, Hollywood and the TV industry wanted them taxed to compensate for revenues lost through home taping of protected material. The issue even went to the Supreme Court in the Sony Betamax case,[21] where home taping was upheld as fair use and therefore excused under the copyright laws. Congress and the Supreme Court of the America refused to tax VCRs; their prices dropped; they achieved unprecedented market penetration, boosting demand for new "content." As a result, video rentals became one of Hollywood's largest sources of revenue. A "copying" technology turned out to produce gains as well as losses. If the maximalist intellectual property agenda had triumphed, content providers would have been wedded for longer to their old business strategies, at a net loss to all concerned.

On the Internet, the same is likely to be true. The distribution of the Netscape browser is a nice illustration: the company believes, and the market seems to agree, that there are lots of ways to extract value from information products without forcing users to pay for each drop. To put it briefly, both the impact of a new technology and the economics of a networked environment are complicated.[22]

But verdict in the case of RIAA v. Mp3 have shows differing opinions on this paradigm, because a federal court ruled Friday (28th April)[23] that MP3.com Inc. violated copyright law with the creation of its database in which users can store music and then access it via any computer connected to the Internet.[24] Indeed this verdict is not last and appeal court may hear this issue again.

> Obscure identification of e-technology users and legal concept of terrestrial jurisdiction.

The cyberspace equipped a contemporary type of global habit in society. Our accepted common legal system and custom are separated into territorial jurisdiction. Identification of consumers, who orders by on-line may provide wrong address that made conundrum. There are huge possibilities that any party may produce misleading identification during the e-commerce activities. On the other hand peoples are awarded right to privacy, which is un-abridgeble (but confusion in the UK). So the identification of on-line user is a legal issue in e-commerce, which is created by common laws and legal system.

> Contemporary global society is towards the idea of a global marketplace. The Internet does not respect jurisdictional boundaries, however, in most circumstances the seller and consumer are located upon terra firma.[25] One of the central legal issues in e-commerce for regulation is jurisdiction to remedy.

Online chat also raise jurisdictional and several legal issues. For example, a customer might use the chat feature to express racial slurs or to defame another user of the chat feature. This type of misuse of the chat feature can discourage other customers from taking advantage of the online service. Worse, it can lead to litigation among those involved or, sometimes, the company itself.[26]

The most difficult issue will arise in cases involving websites, as the possible legal rules which might be infringed are at least the rules of the country where the site was posted, and any country where the website is accessed.[27] There is a related but distinct question as to which country's courts will enforce the relevant legal rules, that is to say, which courts have jurisdiction. The answer to this will depend in part on the kind of rules, which are being enforced.[28]

> Contract principles.

There is, for the purposes of determining if a contract has been formed, no fundamental difference between letter, fax, telephone conversation and e-mail. An Internet site can constitute an offer to the whole world, which can be accepted by the press of a button. E-commerce can give rise to problems because the parties have never met, so there is greater scope for expectations not to match, and because the means of communication are relatively informal. It is becoming common for websites to stipulate terms of use on the site, and merchants using the Internet to do business can enhance their legal position with such terms.

> An E-mail would be likely to satisfy a requirement for writing, the recognition of electronic signatures will require special legislation.[29]

> In most legal systems, a contract is brought into existence where:

· The parties form a common intention to be bound by an agreement, and there is a meeting of minds as to the essential elements of the agreement. Frequently, this meeting of minds is evidenced by an offer, which is accepted, unequivocally.

· The parties intend to be legally (and not just morally) bound.

· The parties have legal capacity to enter into the contract. There are restrictions on minors entering contracts, and in some countries companies are limited in their capacity to form contracts by the company's articles or other constituting instrument

> In Beta Vs. Adobe[30] case, Lord Penrose took the view that when the software transaction become complete as a contract, its legal categorisation was sui-geniris; it was an innominate contract. The basis for this conclusion was that the customer was not really concerned with the medium as such but with access to the software and the ability to copy it legitimately. A further conclusion not stated in the opinion of Lard Penrose is that probably there were no terms about liability to be implied at least in law.[31]

> Of particular importance in the cross-frontier world of the Internet may be those clauses in software transaction declaring which law applies to the contract and in which forum disputes are to be resolved. While in general party autonomy is to be respected in these matters, it should be noted that choice of law clauses con not be used to evade the controls of the unfair contract terms Act 1977(Section 27) or the unfair terms in Consumer Contracts Regulations 1994 (Regulation 7).[32]

> The application of Contract and supply law to software transactions and in particular to those transactions involving software, which take place on the Internet does present a number of analytical difficulties, but not insuperable ones. Many if not most can be overcome by the drafting of appropriate and enforceable clauses. The great difficulty which is lickely to remain is the one which has only been touched upon briefly namely that if incorporation of the well-drafted clauses into the contract between supplier and customer. But the electronic medium in which these transactions are taking place may itself provide the solution, inasmuch as part of the procedure may involve the flagging-up of the existence of terms and requiring the customer to indicate assent thereto before completion of the contract can be achieved. There seems little reason to doubt that procedures like this are capable of meeting the tests of incorporation. If this is right then, while transactions on the Internet will never be free of legal difficulties, many of them can be smoothed a way by the draftsman, with a check being provided by the twin policeman of under contracts and competition law.[33]

New legal issues about criminal exploitation:

Two kinds of impacts of computer technology are influencing on criminal exploitation of commerce. The commission of existing crimes are facilitating by computers and other electronic means, such as drug abuse, terrorism and fraud. Such as, a hacker can transferred money from other’s account to his/her own account and returned after certain period and he/she may earn the interest. Like wise, it has also given advantage to an inexperienced variety of activities such as computer hacking and the growth and dissemination of computer viruses. The (UK) Computer Misuse Act 1990 formed an inexperienced crime of unauthorized access to computer programs or information (Hacking). This has been classified as perform either inadvertently or fraudulently.

A few inexperienced vocabularies have emerged in criminal activity over the e-commerce, for Example: “computer hacking”, “time-bombs”, “logic-bombs” “software piracy” and “computer viruses”. Enormous computer frauds, extensive apply of hacking and terrific syndrome distraction to computer systems trigger by viruses are in challenge. Determining the accurate degree of offense is a problematical mission. Massive offenses go unreported on behalf of rumor. For instance, a number of financial institutions have been sufferers of computer offense but they are worry about publicity will injure their reputation. Criminal exploitation of commerce over the Internet has been and remains a very serious issue.

> In contrast, Cyber-crimes differ from our understanding of traditional criminal activity in number of distinctive ways. First, they do not respect time, space or place in that they have no easily difinable boundaries, can span jurisdictions and they are instantaneous. Second, they are contentious in so far as there does not yet exist a core set of values about them which informas general opinion. At one level the culture of law enforcement is still informed by terrestrial conceptions of law, at another level few test cases have yet to go through the criminal courts to change legal cultures. Third, they require considerable technical knowledge to be enacted, knowledge, which is typically gained from further or higher education: although this is rapidly changing. Fourth, as the following arguments will demonstrate, there is no one set of consensual or core values about what does or what does not constitute a cyber-crime. Furthermore, there is often some confusion as to whether what are regarded by some as cyber-crimes, are in fact criminal activities. Finally, discussion of cyber-crimes tends to be largely offence, and to a lesser extent victim, based. Any discussion of the offenders tends to be in individual terms.[34]

> Until 1990, electronic media related cases in the judiciary were hardly ever examined. Nowadays, different types of activities over the Internet that we currently recognize as crimes are also in courtroom, such as MP3 Vs. RIAA[35]. In the case, new technologies over the Internet are in debate that MP3 music via the Internet are crime or fair competition of commerce. A number of the Internet related offences are considered in electronic commerce. We are already experience of conventional description of the ingredients of the crime. We should consider this guideline in the accustomed way. The main found criminal exploitation over the e-commerce are:

· Hacking [Unauthorized access to computer material and unauthorised modification of computer programs or data (Computer viruses, Blackmail)]

· Piracy offences (Theft) – [the appropriation of intellectual properties, and the appropriation of cyber-cash/ cyber-bucks.]

· Fraud facilitate by electronic means

· Child pornography

· Cyber obscenity

· Cyber violence etc.

The policy and good governance to minimise of criminal exploitation in e-commerce is one of the main legal issues.

>

Instead of aforementioned legal issues, regulation and ownership of domain name, the death of privacy in the 21st century[36] etc. are in paradox. In fact admission that it policy has for many years played into the hands of reverse domain name hijackers at the expense of innocent domain name owners, NSI has quietly made plans to restore to service the hundreds of such domain that it had placed “on hold” over the past four year.[37]

Resolve the legal issue in e-commerce.

Predicting the future has always been a risky business. The law has developed to take account of the use of information technology in commercial activity and, on a number of occasion, judges have had to deal with modern modes of information transmission such as telex, facsimile machines and computers.[38] As has been shown, there are still some grey areas and those wishing to made full use of new technology to conduct their business must be aware of these areas and made appropriate provision.

> All the kinds of legal issues, which arise in commercial life will confront participants in e-commerce. Some of these will be readily solved by the application of established principles by analogy to the new technologies. The law has always evolved in this way, particularly in common law countries, and there will, for example, be little difficulty in applying legal rules governing the formation of a contract by an exchange of correspondence, to an exchange of e-mails.

> The Working Group of the United Nations Commission on International Trade Law ("UNCITRAL") has devised a Model Law on Electronic Commerce, which provides national legislatures with a template of internationally acceptable rules to facilitate e-commerce.[39]

The legal environment in the United Kingdom has struck a reasonable balance between the interests of industry and commerce and the private individual. Because of the global nature of the Internet, the decision of the courts in one country to prevent the use of copyrights within its jurisdiction could amount that effect to a world-wide injunction. At least, looks like a lot of struggle to execute computer hackers as occurred in other country. As to the implementation of rules, orders and judgments, the Brussels and Lugano Conventions create jurisdiction for member states[40] and Private International Law (Miscellaneous Provisions) Act 1995(UK) are also functional to harmonize.

The major legal issue for electronic trade is not so much the lack of substantive law available to protect the interests of traders and consumers, rather the legal and practical difficulties in enforcing that law. The organisations which store confidential information concerning individual members of the public or which have safety-critical systems have a moral duty to protect their computer systems from criminal activities.

> Conclusion

Aforementioned few new legal issues have been created in e-commerce that arises few questions to resolve, which cannot be resolved by existing laws in the UK. Our experience to date strongly suggests that we do not need many new forms of regulation or policing to resolve the questions, but rather we need to adopt, develop amend and build upon these laws, which exist already.

Bibliography

Andrew Carter, Legal Issues in E-commerce http://www.inforich.com.au/FinTech_articles/IB_LegalIssues.htm

> Andrew Terrett, “A Lawyers Introduction to the Internet”, L Edwards, L. & Charlotte Waelde, (1997), (ed) “Law & the Internet Regulating Cyberspace, Oxford”: Hart Publishing,

Brian D. Loader, I. (ed) (1997) “The Governance of Cyberspace”, London: Routledge.- James Boyle, A Politics of Intellectual property: Environmentalism for the net? http://www.wcl.american.edu/pub/faculty/boyle/Boylebio.htm

> D.S. Wall, (1999) hand out for cyber law, session five, Cyber Property: Intellectual properties in Cyberspace. The university of Leeds

David S. Wall, Cyber-crimes: new wine, no bottles?” (1999), PP. 105-139 in Davies, P., Francis, P. and Jupp, V. (ed) (1999) “Invisible Crimes: Their Victims and their Regulation”, London: MacMIllan.

By staff, Affidavit of mp3.com, Ink , www.mp3.com, Mp3.com,vs. RIAA 08-02-21,

> By staff, www.mp3.com, RIAA vs. Mp3.com, 00-01-21, http://books.nap.edu/html/digital-dilemma/chwhtml

> Simson Garfinkel, January 2000, Database Nation, the death of privacy in the 21st century, Published by O’Reilly & Associates.

> NSI, Flawed Domain Name Policy Information Page, 1999, http://www.patents.com/nsi.sht

David Bainbridge, Introduction to Computer Law, third edition, 1996, Pitman Publishing

Andrew Carter, Legal Issues in E-commerce http://www.inforich.com.au/FinTech_articles/IB_LegalIssues.htm

Graham Allan and Michael Hart , E-com Legal Guide (UK/EU)

> Diane Rowland & Elizabeth Macdonald, E. (1997) “Information Technology Law”, London: Cavendish, (1978) Cr. App rep 183

> Govind Belbase (2000), http://www.nepallaw.homepage.com/124.html

> H.L.A. Hart, “The Concept of Law” (1961), Oxford: Clarendon press, 1961.

> Ian J Lloyd, (1997) “Information technology law”, Second edition- London: Butterworths.

> J. Austin(1790-1859), “The Province of Jurisprudence Determined and the uses of the study of jurisprudence”; London: Weidenfeld and Nicolson (1955 )

> James-boyle, 1997, Intellectual Property Policy Online: a Young Person's Guide http://www.wcl.american.edu/pub/faculty/boyle/Boylebio.htm

> L Edwards, L. & Charlotte Waelde, (1997), Introduction, L Edwards, L. & Charlotte Waelde (ed) “Law & the Internet Regulating Cyberspace, P.10, Oxford”: Hart Publishing,

> L. Edwards, & Charlotte Waelde, C. (1997) Law & the Internet Regulating Cyber Space, Oxford: Hart Publishing.

> MSNBC news, April 28, http://www.msnbc.com/news/400956.asp

> “New Law Journal”, November 12, 1999,

Office of representative Christopher Cox, Lexis. http://lawschool.lexis.com/weblec/ecommerce/index.html & http://orrick.com/news/InternetNews/990921.htm

> Orrick, Herrington, & Sutdiffe, September 2000, INTERNET AND e-COMMERCE LEGAL ISSUES FOR IN-HOUSE COUNSEL http://orrick.com/news/InternetNews/990921.htm

> Oxford v. Moss [1979] Crim LR 119. http://www.suburbia.com.au/oxford.html

> Rheingold, H. (1999) The Virtual Community, http://www.rheingold.com/

> Rowland, Ibid. p. 152, [1996, 4 ALL ER 381]

Supreme Court of the United States, Reno, Attorney General of the united States, ct al. Vs. American Civil Liberties Union ct al. – 96-511, decided June 26, 1997, http://www.aclu.org/court/renovaclu.html & http://www.aclu.org/court/cdadec.html

The University of Massachusetts Centre for Information Technology and Dispute Resolution: - http://www.umass.edu/dispute/ .

> ZDNet News, http://www.zdnet.com/zdnn/stories/news/0,4586,2557544,00.html

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[1] Rheingold, H. (1999) The Virtual Community, http://www.rheingold.com/

[2] Govind Belbase (2000), http://www.nepallaw.homepage.com/124.html

[3] Brian D. Loader, I. (ed) (1997) “The Governance of Cyberspace”, p.47, London: Routledge.- Willam Gibson’s novel ‘NEUROMANCER’ published in 1984, in which ‘cyberspace’ first emerged, predated the explosion of popular and leisure use that has transformed the Internet and brought terms like ‘electronic democracy’ ‘information superhighway’ ‘the governance of cyberspace’ into public debate.(Ace Books 1984) by William Gibson

[4] James Boyle, A Politics of Intellectual property: Environmentalism for the net? http://www.wcl.american.edu/pub/faculty/boyle/Boylebio.htm

[5] Supreme Court of the United States, Reno, Attorney General of the united States, ct al. Vs. American Civil Liberties Union ct al. – 96-511, decided June 26, 1997, http://www.aclu.org/court/renovaclu.html & http://www.aclu.org/court/cdadec.html

[6] Ian J Lloyd, (1997) “Information technology law”, Second edition- Page 54, London: Butterworths.

[7]Andrew Terrett, “A Lawyers Introduction to the Internet”, L Edwards, L. & Charlotte Waelde, (1997), (ed) “Law & the Internet Regulating Cyberspace, P.13, Oxford”: Hart Publishing,

[8] Office of representative Christopher Cox, Lexis. http://lawschool.lexis.com/weblec/ecommerce/index.html & http://orrick.com/news/InternetNews/990921.htm

[9] Supra 5

[10] J. Austin(1790-1859), “The Province of Jurisprudence Determined and the uses of the study of jurisprudence”; London: Weidenfeld and Nicolson (1955 )

[11] H.L.A. Hart, “The Concept of Law” (1961), Oxford: Clarendon press, 1961.

[12] One model for “virtual courts” might lie in the alternative dispute res