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Fredrick Töben and World Bank message - open!
"ACCESS TO THIS DOCUMENT DENIED."
I thank a number of individuals who immediately searched Google for an opening - and succeeded, and sent me the whole text or just the relevant item.
Peter summed it up: "It must have been publicly available at one time for Google to have been able to cache it. However, the owners would appear to have since decided to restrict its availability. The Google cache appears to be incomplete as it ends in mid-sentence. I hope what you are looking for is in the bit you have. It's a pretty hefty document".
The World Bank Legal Review
The following hypothetical scenario illustrates the range of prescriptive and personal jurisdiction issues that can arise as a result of e-commerce activities.
A website owned and operated by a Canadian merchant but hosted on a server based in the United States sells electronic replicas of Canadian flags. The site is in both English and French and may be viewed by anyone in the world who has access to the Internet and can read English or French. Suppose the Canadian-based merchant sells 100 replica flags to consumers all over the world who electronically download the replica flag and pay for it with a credit card. If a consumer is unhappy with the quality of the flag, can the consumer have the complaint dealt with in the consumer's home country or must the complaint be filed in Canada? If the merchant misrepresented that the replica was authorized by the Canadian government, can the consumer or a government agency seek penalties in or seek to stop the misrepresentations in the consumer's home country? In Canada? In the United States? If a logo on the flag is illegal in another country, could the display of the flag on the Internet or its sale abroad be restrained? Are income taxes pay- able on the sale of 100 replica flags and, if so, is the tax payable to the Canadian government, to the government where the consumer resides or to the government where the server resides?
The answers to the above questions vary from country to country, and even within countries if provinces or states develop different jurisdictional rules. Also, the approach to jurisdiction issues may vary depending on the matter at issue. If the issue is likely to be considered a matter of public policy,24 it is more likely that a state will assert jurisdiction.
24 For example, the Tribunal de Grande Justice de Paris ruled in November 2000 that the auctioning of Nazi memorabilia on the Califormia-based Yahoo! Website was illegal under French hate crimes laws Ligue Contre le Racisnie et L'Antisemitlsnle v. Yahoot Inc, RG 00/05308, T.G (Paris, Nov. 20, 2000) http.//www.juriscom.net/txt/jurisfr/cti/tgiparis20001l2O.pdf
The German Federal Court of Justice held in Gegen Gerald Fredrick Toben, Landgericht Manheim 503 Js 9551/99 available at http://www.netlaw.dc/urteile/bghL4.htm that German hate laws apply to foreigners who post content on the web in other countries, if the content is accessible in Germany. The complaint alleged that Dr. F. Toben, a former German national, living in Australia, had posted content on an Australian-based website disputing the existence of the holocaust.
Legal and Regulatory Aspects of E-Commerce and the Internet 17 2.2. Prescriptive Jurisdiction Prescriptive jurisdiction concerns the authority of a state to apply its laws to regulate conduct or activities. It differs from personal jurisdiction and subject matter jurisdiction, which concern whether the courts of a particular jurisdiction have the authority to adjudicate a dispute or enforce a judgment.In the Internet environment, where the location of the activity is potentially everywhere where there is Internet access, determining whether the activity implicates the laws of foreign jurisdictions raises significant factual, legal, and policy considerations.
As is discussed elsewhere in this section, states are increasingly adopting Internet and e-commerce specific laws and regulations to address perceived concerns. Laws and regulations need not, however, expressly target Internet communications or e- commerce transactions in order to apply to such activities.
A panoply of private and public law applies to traditional offline commerce.
Many of these laws and regulations will apply to Internet communications and electronic commerce transactions. They will be applied by countries, provinces, and states in which parties, through electronic and other contacts, carry on busi- ness or have sufficient connections to become subject to the laws and regulations of the jurisdiction. Even if parties specify in a contract which law will govern the adjudication of disputes as between them (choice of law) and the venue where their disputes may be heard (collectively, personal jurisdiction), that contractual clause may not necessarily determine the laws that regulate their activities.
The following list, while by no means exhaustive, illustrates the range of laws, regulations and rules that may apply to online activities:
(1) Advertising regulation and self-regulatory codes (governing, e.g., fraudulent or deceptive advertising, disclosure requirements, comparative adver- tising, advertising to children, offensive or obscene messages or images, racial or ethnic slurs, restrictions on advertising particular products such as alcoholic beverages, warning notices for products such as tobacco and pharmaceuticals);
(2) Privacy and data protection laws, including European "omnibus" data privacy laws, anti-"spam" laws regulating unsolicited commercial messages by e-mail, restrictions on selling mailing lists or using credit card transaction data, children's privacy protection, and the enforcement of a website operator's announced policies regarding the collection, use, and disclosure of personal information;
(3) Contract law, including mandatory elements of contracts, writing and signature requirements, notarial and other formalities, doctrines of contract interpretation, and concepts of good faith and fair dealing;
(4) Broadcasting and telecommunications regulations;
(5) Public order laws prohibiting or regulating, for example, gambling and lotteries (which may apply to promotional or fundraising contests and sweep- stakes as well as to gaming websites), obscenity and pornography (often especially strict with respect to depictions of children or violence), con- tracts for illegal acts,
(6) Antitrust competition law and fair trade practices laws, typically designed to protect businesses as well as consumers, may govern aspects of advertising, distributorship, pricing, joint ventures, business-to-business exchanges and a variety of acts that might be characterized as attempts to monopolize a market or abuse a dominant position in a market;
(7) Franchise or distributorship laws, specifically designed to define the rights and obligations of intermediaries in distribution channels, which may be implicated in establishing online direct marketing and sales channels;
(8) Tax laws, including transaction taxes (sales, use, goods and services, value- added), income taxes (which may be imposed on either a "source" or "residence" basis), and special taxes imposed on Internet or telecommunications usage or on the transaction of business over networks;
(9) Customs duties and documentation for the import or export of goods, often ambiguous in the context of electronic delivery or the characterization of online products as goods or services;
(10) Consumer protection laws, including obligatory contractual disclosures, labeling requirements for contents and safety, prohibited unfair terms, rights of rescission and return, warranties, rules on limitation of liability, language of the contract, restrictions on debt collection practices, and special or sectoral requirements, for example, distance sales, telemarketing, package travel, automobiles, time-share condominiums, medicinal and health products;
(11) Insurance regulation, which may apply not only to traditional insurance products but also to some warranty and after-sales service contracts;
(12) Securities (investment) regulation, including licensing requirements, restrictions on solicitation and investment, obligatory adherence to self-regula- tory codes and discipline, regulation of communications with investors by e-mail or through a company's or broker's website, and the application of
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