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Legal aspects in e-commerce

Train the trainer E-commerce 8-19 April
by

Bart Wernaart

on 7 September 2015

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Transcript of Legal aspects in e-commerce

B.art Wernaart
Legal aspects in e-commerce
Legal aspects in e-commerce
A clash of online rights
...within a European Context
Therefore: harmonization
Challenge: apply online what applies off line
When applicable?
Freedom of expression
IP rights
Freedom of expression
Privacy rights
Fundamental idea: reduce trade barriers
(no fiscal and quantitative restrictions)
Regulation
Directive
EU Directive
Country B
Country C
Country A
Civil Code
Code of Commerce
Decentral regulations
Policy Instruments
Policy institution
Etc
Criminal Code
Civil Code
Local policy
(margin of appreciation)
International
National
(e.g. data protection directive/ copyright directive/ labeling directive, etc...)
Monism vs Dualism
Issues:
- Legislators are slow
- Online world has no state boundaries
- Rights may clash
Art. 2(1): information to an identified or identifiable natural person.
Art. 2(2): any operation performed on personal data
Collecting, storing, making available, combing or destroying)
On Internet this might include:
publishing of personal data;
Holding material on an internal database or computer system with internet connectivity.
(Partly) automatically processed data
-Personal data must be processed fairly and lawfully and not further processed in a way incompatible with those purposes;
-The data is adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed;
-The data is accurate and kept up to date;
Kept in a form which permits identification and for no longer than is necessary regarding the purposes
General Principles
Justification
Member States shall provide that personal data may be processed only if:
(a) the data subject has unambiguously given his consent; or
(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or
(...)
(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1).
Clickwrap cs browsewrap
Exceptions/ obligations
Art. 8
Processing of special categories of data is prohibited:
Racial origins;
Political beliefs;
Data related to health or sexuality.
Art. 9: exceptions due to freedom of expression
Art. 10: notification;
Art. 12: data subject has a right to access the data;
Art. 14: data subject has a right to object certain processing;
Art. 16 and 17: controller should maintain confidentiality, data security and notification to the supervisory authority;
E.G: Art 7. Dutch constitution: `No one needs prior permission to express thoughts or feelings publicly by press.’

`The previous provisions are not applicable to commercials.’

But: Art. 10 ECRM and 19 ICCPR
Intellectual Property and Internet
Basically:
Directive 2001/29/EC (harmonization copyright law)
Directive 91/250/EEC (legal protection of computer programmes
Directive 96/9 EC (legal protection of databases)
Related: Patent (different in USA)
(only suitable for patent when leading to applied result that is an invention, new, inventive, industrial applicable)
Questions raised on copyright law:
1. Who is the author

Usually, no registration is required…but is recommendable

There are some exceptions (manager, employer, public institution or legal personality)
2. Copyright on what?
-Physically observable
-The result of a creative prestation
-New
This includes software, programmes, apps, etc..
What rights?
Rights related to personality
Right to distribute and reproduce (Art 3)
Right to communicate (Art 2 jo4)
Database protection?
For the purposes of this Directive, 'database` shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means
Article 7
Object of protection
1. Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database
Some reflections on didactics
- Management student is not a lawyer
- Lecture and cases
- Written exam, open questions
* literature?
* Way of teaching?
- Furthermore in the course:
- International private law on internet
- Consumer protection on internet
- ISP liability
- Law comparison (USA/ China)
Thank you for your kind attention
Feel free to keep in touch: b.wernaart@fontys.nl
Full transcript