Page 123 - DCAP306_DCAP511_E-COMMERCE_AND_E-BUSINESS

E-Commerce and E-Business

Under different jurisdictions, different laws will be applicable. Many questions that are important to the
legality of commerce in cyberspace have arisen which are as follows:

1. Who has the right to prescribe the law in a given area?
2. Where can the action commence and should the entity be subjected to legal proceedings?
3. How and when will the arbitral award or court judgment in one jurisdiction be enforced in
another?
The personal jurisdiction will exist when a company conducts business over the Internet, with persons
in foreign jurisdiction. Thus, the use of the Internet in transmitting computer files, making contracts, or
accepting purchase orders from a distant venue might subject the defendant to jurisdiction in foreign
states. Some companies include the terms and conditions to be followed in their Web sites. While the
enforceability of the provisions changes based on the facts and jurisdiction, many companies have
successfully invoked such clauses when the defending cases were brought in foreign jurisdictions.

9.3.4 Service Provider Liability
Internet Service Provider (ISP) provides access to the shared Web sites, e-mail distribution lists, Usenet
news, and much more for their users. These facilities may be used by their users to upload defamatory,
unlawful, copyright, or trademark infringement material. Unlawful material will include banned
publications, pornography and abusive material without giving the ISP a chance to review it. Liability
for materials distributed over the Internet might be different for Web site operators and ISPs. The ISP
can be held liable for bulletin boards. It is also responsible for aiding and abetting the commission for an
offense like distribution of pornography. Similarly, the third party liability for defamation is also a
cause for the serious concerns of ISPs, Web sites, and online service providers. Therefore, the concerns
include libel and defamation of third party liability and rights for hosting unlawful materials.
Under the Information Technology Act, 2000, Section 79, network service providers are not liable for
any third party data or information made available by them, if they can confirm that the offense or
contravention was committed without their knowledge or that they had exercised all due diligence to
avoid the commission of such offense or contravention.
9.3.5 Formation of an Enforceable Online Contract
The growth of e-commerce depends on the confidence of traders in forming legally enforceable
contracts online. The main activities related to the formation of an enforceable contract, take place in the
Internet i.e., the offer is communicated in the e-commerce environment through the Internet orally or in
writing.
Electronic acceptance of the contract through e-mail and e-form is valid in the same way as a fax
message is valid. The offer can present the terms and conditions as a legal notice on the Web site.
Visitors to the site, who choose to proceed further, even after reading the notice, can be construed as
accepting the conditions enforced. The timing of the acceptance offer decides the laws which would be
applicable in case of dispute. Then, there are issues pertaining to identity of parties and the role of
digital signatures on the Internet. Writing and signing in print might be the need for some sort of
permanent or tangible form. Yet another issue pertaining to electronic contracts is to set up the
competency or authority of a party to enter into a transaction.
All these issues are crucial to the creation of an enforceable electronic contract. In case of postal mail, it
has been held that when the acceptor mails the contract it becomes valid irrespective of whether it
reaches the receiver or not. However, some of the proposals under construction in some countries will
reject this rule for electronic communications.

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