The e-Commerce Legal Help Centre:

Welcome to the LegalAdvice.ie e-commerce centre. This area of the web site is designed to help entrepreneurs think about legal issues for any growing IT business. However, we cannot deal with them in detail here, so we invite you to e-mail us with your particular query. If you would like to meet a member of our team, please request a free initial consultation. Watch out for our updates and articles on topics relevant to e-commerce.

Introduction

People talk about "e-commerce law" as if there is some special area of law that applies to this area. This is not so. IT has permeated many areas of the existing body of law, but in some areas, new legislation has been enacted to accommodate modern technology, e.g. electronic signatures, e-mail and encryption. A major piece of legislation in Ireland is the Electronic Commerce Act, 2000.

Some areas of law where IT has had a major impact are:
Intellectual Property Law (trademark, copyright, etc.)
Computer Crime (hacking, cybersquatting, indecent material etc.)
Privacy and Data protection (spam, computer records, surveillance etc.)

The implications of e-commerce law for business:

• Purpose: Decide whether you site is a 'brochure' site, or whether you will be conducting business on your site. The legal responsibilities for the latter are much greater.
• Content: Ensure that any material you use is your own, although if you are using material in the public domain you may re-state it. Get consent if using external material, or links .
• Legal Notice: Always include a legal notice stating your terms and conditions for use of the site. You must also include a disclaimer, denying liability for any loss or damage to the user, preferrably in plain English. You should advise any visitor who doesnÕt accept your terms to leave your site.
• Intellectual Property: Always protect your Trade Marks or Service Marks, and state on the site that you have done so. Have your site checked to ensure nothing on it infringes any Trade Mark, Copyright, Patent, or Confidential Information.
• Privacy: If you gather information about visitors to your site, you must tell them. They may opt out if they wish, or ask to see the information. If you keep records, you may have to register with the Data Protection Commissioner. The EU is reviewing the use of Cookies currently.

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• Misuse of facilities: Whether innocent or deliberate, misuse of e-mail and Internet by an employee will cost the employer dearly. Clear rules should be laid down regarding personal use of Internet or e-mail. Consequences of misuse should be spelt out, and a proactive supervision policy should be followed. The motto for staff should be "if you think it may be misuse, it probably is".
• Defamation / Harrasment: Electronic media are perfect tools for sending defamatory or humiliating e messages around the office. This immediately exposes the company to litigation by the subject of these messages. Employers must educate their staff, and take steps to preclude such activity.
• Illegal Use: An employee who accesses or interacts with sites concerning e.g. child pornography, or terrorism may also be exposing his/her employer to being sued by anyone affected by this activity.
• e-mail supervision: Employees must use their e-mail in the same responsible way they manage files and correspondence. In particular, the perrenial sending of "fun" e-mails, often containing obscene or offensive material should be stopped. Harmful vruses are often spread in this way. Employees should be instructed to open a personal e-mail address for non-work related messages.
• Legal Effect: Employees should be educated that electronic communication is as binding as a letter or fax. Despite itÕs informal nature, e-mail can be relied upon to bind a company, or may be used in evidence a company. A confidentiality Note and disclaimer should appear at the bottom of every e-mail.
• Maintenance of Network: No unqualified or unauthorised mployee should be allowed tinker with any part of the IT infrastructure. No software, games, diskettes, or e-mail attachments should be installed or opened without prior permission.

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In order to minimise the potential for damage caused by misuse of IT, a company can take certain steps. First of all, a proactive and ongoing information campaign for employees can be set up. Training and guidance on IT ethics and etiquette as well as the serious implications of misuse, should be given to staff.

A clear and concise policy statement dealing with misuse of IT should be circulated to staff and displayed prominently. Contact LegalAdvice.ie for a sample 'e-mail Policy Statement'.

A company also has a right to monitor and supervise its IT users, in order to protect business interests. A company must, however be careful not to breach the employees privacy rights.

Finally, every company should ensure that they have the best security software, and anti-virus software installed. Not only does this show that you ar a responsible corporate citizen, it also adds amore layers of protection to your companies' IT system.

Remember that electronic information and communications are admissable as evidence in litigation. You should, therefore, identify all sources of information in your company, and have such information stored in an orderly fashion, in case you ever need to retrieve it. Electronic Discovery of documents may be a complicated process, nevertheless.

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In law you must have an 'offer' and an 'acceptance' of the offer to form a contract. So it is on the Internet. Therefore, be careful that you do not use language that can be construed as an offer on your website, unless you wish to do so. Acceptance of an offer occurs when a buyer recives an acknowledgement of his order, and a message that his order has been accepted.

You must also give a prominent spot to your terms and conditions of sale, and you must ask the buyer to click the 'I accept' button to acknowledge them. However no set of terms, or disclaimer will protect the seller of defective goods, as these notices are deemed to come before the contract is concluded. Also the test of whether a disclaimer is acceptable is whether it is "fair and reasonable".

The Brussels Convention and Regulations govern cross-border electronic contracts. Please contact legalAdvice.ie for specific advice on jurisdiction matters.

The contents of a contract are covered by a variety of legislation, and in particular the EU Distance Contracts Directive covers B2C contracts, and reflects much of EU consumer law. Before setting up as an 'e-tailer', LegalAdvice.ie strongly recommends you take professional legal advice. We can provide you with this advice.

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