new or old?
size & shape
This page explores the legal framework for the information
It covers -
It highlights electronic commerce law and administration
in Australia and offshore, including questions of jurisdiction,
evidence and signatures. There is a broader exploration
of regulating cyberspace in the Governance
As discussed in our governance guide, varying perceptions
of challenges posed by a global, borderless and networked
information economy have resulted in different proposals
for the development of law.
Some groups have, unconvincingly, asserted that there
is no need for law in cyberspace, particularly law that
While increased reliance on private law - agreement to
abide by terms & conditions or to use particular arbitral
mechanisms - is likely, the likelihood of states abandoning
their colonisation of the web is small. As Lawrence Lessig
argues in the influential polemic Code & Other
Laws of Cyberspace (New York: Basic Books 1999), during
the first decade of the web governments had a hands-off
approach but their involvement is increasing. That involvement
is broadly welcomed by many areas of business and by community
Some theorists have criticised the effectiveness of piecemeal
extension of national/regional legislation and the evolution
of global/bilateral agreements such as the EU-US Safe
Harbor privacy agreement.
They have called instead for more radical schemes that
provide a new global framework for doing business online
and across borders. One example is the controversial suggestion
in the American Bar Association's major cyberspace
for a global commission to set international rules regarding
banking, consumer protection, privacy, taxation, gambling
and other online activities. Another is Ralph Nader's
call for a World Consumer Protection Organization (WCPO)
along the lines of the World Intellectual Property Organization,
a UN agency.
Such proposals appear unlikely to get off the ground.
Our expectation is that we'll continue to see a mix of
national law - often ad hoc and ill-conceived, such as
Australia's datacasting restrictions and online censorship
rules - global agreements and bilateral arrangements involving
compliance with major trading blocs. All in all, business
At the national level Australia has chosen incremental
improvement of the existing regime rather than a broad
suite of new legislation specific to cyberspace.
That's unsurprising, given both the nature of law-making
and the opportunities to build on existing legislation
dealing with evidence, intellectual property, privacy,
censorship, trade practices and other concerns.
The Australian Electronic Transactions Act 1999
is perhaps the major achievement of the national government's
'strategic framework for the information economy' under
the coordination of the National Office for the Information
giving electronic transactions involving Commonwealth
government agencies the same status as those using paper.
Because most contract law is a state responsibility, the
Act is to be 'mirrored' by complementary state legislation. As
yet, similar acts have come into effect in Victoria and
NSW; further progress is likely to be slow.
ETA reflects changes to the Evidence Act during the
past decade - the law now looks more kindly on newfangled
technology such as the photocopier - and the Electronic
Commerce Expert Group's 1998 Electronic Commerce: Building
the Legal Framework report,
that embraced electronic signatures,
record-keeping, contracts, the UNCITRAL model code for
ecommerce, and other matters.
The Commonwealth Attorney-General's Department has an
primarily concerned with the Electronic Transactions Act. The
Treasury Department has a small set of pointers
to e-commerce and consumer affairs. More detailed
information about security, intellectual property and
consumer issues is found in those guides on this site.
The slow pace of electronic commerce reform at the
national and state/territory levels has been speeded up
by overseas developments. In the US the Electronic
Signatures In Global & National Commerce Act came
into effect in October 2002.
The United Nations Commission on International Trade Law
has proposed a model code for ecommerce, to be reflected
in national legislation and practice across the globe.
Information about the code is available on the UNCITRAL
In Europe the European Commission published a proposal
for a Directive
to "establish a coherent legal framework for electronic
commerce across the EU".
As bureaucracies respond to perceived opportunities and
dangers (or merely a chance for travel to meetings in
exotic locations) governance of the network of networks
is coming under greater government scrutiny and increasing
control. A perspective on that process is provided
by the excellent Global Business Regulation (Cambridge:
Cambridge Uni Press 2000) by John Braithwaite & Peter
Drahos and All Politics Is Global: Explaining International
Regulatory Regimes (Princeton: Princeton Uni Press
2007) by Daniel Drezner.
The American Bar Association has developed an excellent
exploring global jurisdiction issues.
The Global Internet Project's 1999 paper
on Jurisdiction in Cyberspace is worth reading. We
also recommend the Commonwealth Attorney-General's discussion
on the proposed Hague Convention on Jurisdiction
& Foreign Judgements in Civil & Commercial Matters
international agreement applying to most private litigation.
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