The concept of electronic contracting under English common Law

Virginie P.

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The concept of electronic contracting under English common Law

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Résumé
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Résumé du document

The internet and technology has provided a global marketplace and are being increasingly used for communications between businesses and by business to consumers. As e-commerce continues to grow at an increasing rate, a large number of transactions are being completed on time, particularly as companies begin to realize the efficiencies and opportunities offered by conducting business on a global level. In order to encourage electronic commerce, it is essential to review and possibly amend the legal obstacles which may hinder or prevent its growth. Many countries, including the UK, have recognized this and have started implementing new legislation which aims to facilitate electronic commerce.

Sommaire

Scope of the E-commerce Regulations.
Internal market provisions.
Pre-contractual requirements.
1. General information to be provided.
2. Commercial communications.
3. Direct Marketing using ´Unsolicited Electronic Communications´.
4. Spamming.
Treatment of online contracts.
1. Formation of Electronic contracts.
2. Enforcement of Electronic contracts.
Liability of intermediaries.
1. Conduit of Information.
2. Caching.
3. Hosting.

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Extraits

[...] Treatment of online contracts 4.1 Formation of Electronic contracts In order for e-commerce to reach its full potential, it is essential that contracts can be formed online. However, neither the E-Commerce Directive nor the Regulations attempt to resolve the novel legal issues raised by electronic contracts, such as determining at what point a valid contract is formed online. The Government is of the view that such issues are adequately dealt with by common law, existing statutory provisions or the law of individual member states. [...]

[...] The Regulations do not prescribe how the website owner or ISSP must make the information "easily, directly and permanently accessible." However, the Department of Trade and Industry Guidance clarifies that the Government recognises that technological constraints may mean that the information cannot necessarily be made available by the same means used to provide the ISS itself. In order to be ‘easily' accessible, a link form the homepage to a list of information is probably the most obvious way to make the information available[19]. It could be included, as well, within the ‘Terms and Conditions'. E-traders should already be providing such information under the Consumer Protection (Distance Selling) Regulations 2000[20]. However, the Regulations impose additional requirements such as providing details of membership of trade or professional bodies. [...]

[...] In order to increase the confidence of those buying online, Regulation 7 requires that a commercial communication be clearly identifiable as such and clearly identify the person on whose behalf the commercial communication is made. A commercial communication must clearly identify any promotional offers, contain basic information as to the criteria for eligibility and detail all the terms and conditions which apply to it. The Regulations do not define "clearly identifiable". The Regulations do not prescribe how the requirement to make commercial communications "clearly identifiable" should be met in practice. [...]

[...] DMA Code of Practice for Electronic Commerce. Gringas, p Communications Data Protection Directive 2002/58 which was adopted on July and must be implemented by October In the United Kingdom this will lead to regulations amending the Telecommunications (Data Protection and Privacy) Regulations 1999 (SI 1999/2093) and the 2000 Regulations (SI 2000/157). Chissick and Kelman, “Electronic Commerce, Law and Practice” p Stewart Room, “Hard-core spammers beware?” 28 November 2003, NLJ 153. Stewart Room, op.cit. above. SI 2003/2426. Article 13.4 of Directive 2002/58. [...]

[...] Nevertheless, Member States may restrict the provision of an ISS into the United Kingdom from the EEA on a case by case basis and under certain circumstances provided that the restrictions are proportionate to its objectives and they are necessary for one of the following reasons[16]: 1. public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons; 2. the protection of public health; 3. public security, including the safeguarding of national security and defence; or 4. protection of consumers, including investors. [...]

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