Low, Alex --- "Electronic Commerce and the Law" [2003] JCULawRw 10; (2003) 10 James Cook University Law Review 174

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BOOK REVIEW: ELECTRONIC COMMERCE AND THE LAW, Jay Forder & Patrick Quirk, John Wiley, 2001, ISBN: 0 471 34164 9

Dr Alex Low

E-commerce is a new and developing area for business and the law. As the authors point out, ‘it addresses commercial and business issues that arise when transactions are conducted over computer networks’. (p vii)

There are few but increasing numbers of books on the subject. This one was written to provide students a comprehensive but easily digestible book on the law as it relates to electronic commerce. It provides a good overview of the subject and is a very useful introductory text.

The book is divided into 5 parts.

Part 1, consisting of chapters 1 and 2, is entitled Background and Framework.

Chapter 1 deals with the development of e-commerce, the Internet and its applications, together with the view of various commentators. The authors point out that there are two schools of thought, one that it is a new area of law but that the existing legal framework can deal with these issues, and the other that existing law is incapable of dealing with these new issues of law.

Forder and Quirk, to my mind, suggest that existing legal concepts probably need to be used in a unique, novel way, rather than see a need to develop new law. The authors give an outline of the Australian legal system and how e-commerce issues fit within this existing framework.

Chapter 2 is an important chapter dealing with jurisdictional issues. It explores the important area of international and domestic jurisdiction and seems to conclude that the law that should be applied is the law in which the defendant has the most contact. The important case of Dow Jones & Company Inc v Gutnick confirms this view of the authors. I am sure the authors will give this case emphasis in any new edition.

Part 2 looks at business and commercial issues, in chapters 3, 4, 5 and 6.

These chapters deal with electronic contracts, digital signatures and taxation. These are all important and live issues in the world of e- commerce, and the authors deal with the issues in a coherent, well- structured and easy to understand way.

Chapter 3 discusses concisely the important topic of common law contractual issues and how the Electronic Transactions Act 1999 (ETA) applies to clarify many of the common law issues. The little-examined but important area of agency law is also dealt with.

Chapter 4 recognises that e-commerce requires payments to be made expediently and securely so that there is continuity in the system. The authors examine cryptography and how Australia has dealt with it under the ETA. They also examine international attempts to set up model rules for cross-border trade and the need for international cooperation.

Chapter 5, on the electronic payment systems, is an excellent chapter which looks not only on the domestic scene but internationally.

Chapter 6 also addresses an important area not addressed by many texts, the area of taxation, once again not only domestically but internationally.

Part 3 deals with intellectual property issues, which are canvassed in chapters 7 and 8.

As in many texts, the authors outline the current law relating to copyright and trademarks.

Perhaps the authors could have included a section on international developments, for e-commerce is a worldwide issue and this would sit easily with the earlier chapters of the book which do take an international perspective. For example, an examination of the WIPO Copyright Treaty would not have gone astray.

The authors then critically look at the existing laws and how they may be developed to cope with the evolution of new technology. The exploration in domain name ownership versus trademark ownership by the authors is important and is a good textual examination.

Part 4 is on regulatory and policy issues, which are dealt with in chapters 9, 10, and 11.

Chapter 9 is a structured and tradesman-like discussion of consumer protection issues as they relate to e-commerce. Whilst consumer protection issues may be unfashionable in a general sense, for e-commerce they are important, and the discussion by the authors in this context is both interesting and enlightening. These are the bread and butter issues that must not be overlooked.

Chapter 10 looks at privacy laws and policy and is well written and concise. It examines the domestic situation and looks at the international regime which affects Australia. Whilst there are international standards set up by OECD, the authors point out that the approaches taken by different countries depend on cultural perceptions within each country.

In Australia the approach is dual, consisting of hard laws and sanctions together with persuasion and influence which the authors call ‘soft law’. The authors point out that any existing international standards in, say, the European Economic Union, have been developed to accord with expectations of that particular area or trade bloc.

The chapter is a good account of state and privacy laws as they relate to e-commerce.

As the authors say, ‘Chapter 11 discusses the regulation of internet content and analyses the controversial attempt of the Australian government to restrict what can be published or accessed electronically.’ (p 25)

E-commerce law has no definitional boundaries. The authors are obviously appreciative of this fact for this chapter refers to intrusions upon the Internet by government. This leads to a discussion of Australian common law and statute affecting free speech and censorship. In line with the book’s approach, the authors have not neglected overseas developments.

The authors take the view that, in general, any new unique regulatory regime that is set up will require constant monitoring and change in the light of new developments. It is a dynamic and moveable feast.

Part 5 details, in chapters 12 and 13, specific industries that are well suited to Internet usage.

Chapter 12 deals with the securities industry, looking at securities trading and associated problems with protecting the investor. Whilst this is a short chapter, it is piercing.

Online share trading is growing in Australia, as brokers discount their commissions and the Internet is a technology easily embraced by stock exchanges and brokers worldwide.

Fraud is an area that looms ever large, and the authors spend most of this chapter highlighting this issue in both Australia and the USA.

The book makes reference to the statutory requirements of corporations law without comment. Perhaps this could be revisited by the authors in an otherwise solid chapter.

Whilst so doing, they might also consider issues such as website content and responsibility, hyperlink issues such as endorsements, expanded discussions upon compliance as raised in statutes and access to historical information.

Despite what I have raised, chapter 12 is a good overview of all the legal issues. Whilst there is little discussion, it does alert the reader to areas for discussion. Herein lies the strength of the book and particularly of this chapter. Discussion is left to the student cohort and teachers using the book.

The subject matter of chapter 13 is well chosen, for gambling has existed as long as mankind. The Internet has only reinforced it, for a search would uncover hundreds of gambling sites.

Acknowledging that online gambling is international, chapter 13 comprehensively outlines the issues both at a domestic and international level. The book looks at two arguments, one that the Internet is just another form of communication and so existing laws are sufficient, and an opposing view that the Internet must be deregulated and left in the hands of the users.

Of course there is also a third view favoured by the Australian states. The book points out that this approach is to authorise gambling, control it and tax it. The authors give a comprehensive outline of the various states’ legislation, such as the Interactive Gambling (Player Protection) Act 1998

(Queensland) and suggest a better approach would be a national approach.

The chapter also raises many other matters, for example defining the legal status of online gambling, imposing criminal sanctions and so on.

Chapters 12 and 13 are to my mind very important examples of transactions and securities issues. An understanding of both is important for students to develop a comprehensive perspective of the transactional nature of e-commerce, and highlights security risks and needs.

Implicit in chapter 13 is the acknowledgment that Internet gambling is a new phenomenon that may even require unique rules.

E-commerce has not yet developed into a law unto itself. It encompasses any area of law that might intersect with the Internet or e-commerce so it is hard to be critical of authors who have chosen areas of topical law to be discussed in relation to the Internet. Of course, this is only one approach and another reviewer might consider this approach unsatisfactory.

Because there are no borders, there is no particular body of law that encompasses it. This will come in time as with other areas of law, such as the evolution of labour law first into industrial relations law and now into human resources law. The latest terminology has ‘human resources’ referred to as ‘human capital’.

The authors have rightly ignored the need for a definition of e-commerce and simply focus on the properties of e-commerce transactions.

This is a better approach than say, looking at transactions from a final point of view, for this would not be looking at a transaction in its entirety.

Bearing this in mind the authors have done an admirable job in writing this textbook.

It is well written with lots of discussion upon contemporary issues. It is an important contribution to the development of student understanding in e-commerce.

In each chapter the authors set up learning outcomes with discussion questions to stimulate further thought among students.

The authors have achieved both purposes in answer to the aims stated in their preface to provide a resource for all students interested in e- commerce (p vii).

This book is easy to read and can be readily grasped not only by a student but also by a businessman who wishes to have more than a simple and working knowledge of e-commerce.

Dr Alex Low Division of Law, Macquarie University

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