View
218
Download
0
Tags:
Embed Size (px)
Citation preview
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Vicarious Liability Definition
The law holds a person liable for the wrongs of another even though the person has personally done no wrong
Examples Employer\Employee
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Vicarious Liability (cont.) Rationale
EconomicThe employer is usually insured
SafetyProvides an incentive for employers to choose staff carefully and provide training
PolicyEmployers profit from their enterprise and therefore should be responsible for any loss it causes
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Vicarious Liability (cont.) Indemnities
A contract can contain a clause requiring the employee to indemnify the employer
Some jurisdictions have abolished this right (e.g. s27C Wrongs Act (SA))
Employee is usually covered by employer’s insurance and insurer cannot recover against him (s66 Insurance Contracts Act)
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Vicarious Liability (cont.) Requirements
Commission of a tort Not contract or other legal liabilities
By an employee A Principal is not liable for acts of an
Independent Contractor Acting in the course of his employment
What was the employee employed to do. Employer will be liable for acts in that area or incidental to it or if the employer otherwise authorised the wrongful act.
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Vicarious Liability (cont.)Who is an Independent Contractor? Control test
Does the employer have the right to exercise control over what the employee does and how he does it?
Employer need only have power to control the employee’s work to the extent to which there is scope for such control
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Vicarious Liability (cont.) Control test (cont.)
Factors Can the employer tell the employee
what to do, how to do it, when to do it etc.?
Does the employer have the power of dismissal
Does the employer provide equipment Does the employer pay holiday pay, sick
leave, workers compensation?
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Vicarious Liability (cont.) Control test (cont.)
Integration testHow closely has the employee been integrated into the employer’s business
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Vicarious Liability (cont.) Control test (cont.)
Multi-factor testA worker is likely to be an independent contractor and not an employee if he: Owns and maintains his own equipment Is paid by results Takes the chance of profit\loss Has the right to delegate work Has the right to work for others Is not entitle to sick pay, workers compensation, sick
leave or superannuation Does not have PAYE tax installments deducted
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Vicarious Liability (cont.) Acting in the course of his employment
Wide meaning Employer is liable even when the employee does
something that is not part of his job Century Insurance Co Ltd v Northern Ireland
Road Transport Board [1942] AC 509 (P p417) Employer is liable even when the employee
commits an intentional or illegal act Poland v John Parr & Sons [1927] 1 KB 236 (P
p418) Lloyd v Grace, Smith & Co [1912] AC 716 (P
p417)
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Need Alignment with business strategy Protection of a valuable asset Networks produce a ripple effect
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Ownership Overall control Control of sub-systems
New Systems implementation
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Software Licensing Supported environments Auditing Software development
methodologies standards
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Data Ownership Control Validation Authoritative sources Copying and transfer Archiving
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Web Pages Consistency of layout Consistency of design Accessibility (W3C) Use of graphics Navigation Links
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Web Pages (cont.) Proprietary information Disclaimers Terms and conditions Privacy statement Copyright notice
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Security Storage
Firewalls Access Permissions Encryption
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Security (cont.) Anti-viral measures
software installation updating
filtering attachments
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Security (cont.) Intrusion monitoring and response Logging Backups Auditing Remote Access
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Employee Usage Personal and\or business Subverting systems Permitted software Reporting of breaches Password protection Monitoring Privacy
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Employee Usage (cont.) Vilification and Harassment
Inclusive language
Race Religion Ethnicity Gender Sexuality
Marital status Pregnancy Age Disabilities
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Employee Usage (cont.) Emails
When to use How to use
Flaming
Archiving Format of attachments Privacy & Monitoring Mail lists
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Employee Usage (cont.) Compliance with Federal & State law Penalties
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Dissemination Publication New employee inductions Training Signed acknowledgement
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Trade Practices Act Prohibits
Misleading & Deceptive Conduct Unconscionable Conduct
Implies Terms Creates
Civil Remedies Criminal Penalties
Applies to Trading & Financial Corporations Use of Telegraphic Service (i.e. Internet)
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Identifying Businesses Necessary to
Create Trust Provide details of whom to claim against
Business Names Acts If you trade under a name other than your
own you must register it. Must register in each state in which business
trades
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Identifying Businesses (cont.) Corporations Law
Covers the whole of Australia Provides an on-line database Must state ACN on
Invoices Receipts Agreements Other essential documents
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Identifying Businesses (cont.) Trade Marks
Registering business name or company name gives no intellectual property rights
Trade marks are nation based Infringement of intellectual property rights can
be misleading & deceptive conduct contrary to TPA
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Identifying Businesses (cont.) Spoofing
Impersonation of reputable business Uses
Web site with similar name; or Email with embedded link
Relies on “human engineering” Difficult to authenticate site
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Information on Goods & Services Misleading Advertising
Even if goods & services are free Expired information
Mere puffery Bait Advertising
Must be able to supply goods at stated price for a reasonable period
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Information on Goods & Services Pyramid Schemes Pump and Dump Schemes Health Products
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Transactions Form requirements
Language Currency
Use of $ symbol may be misleading
Taxes Licensing
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Transactions (cont.) Implied Terms
Goods Merchantable quality Reasonable fit for purpose
Services Supplied with due care and skill Reasonably fir for purpose
Terms implied by TPA may not be excluded May be limited for goods not ordinarily acquired for
personal, domestic or household use
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Transnational Contracts Governing Law
Jurisdiction clauses May be ignored as an attempt to oust
jurisdiction of local courts Alternative Dispute Resolution (ADR) clauses Conflict with local laws
TPA will apply if any part of transaction or pre-contractual negotiations occurs in Australia
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Transnational Contracts (cont.) Uniform Computer Information Transactions Act
Actively promoted by Business Software Alliance
Enacted in some US States Actively promoted by Business Software
Alliance Enacted in some US States Aust Courts may refuse to uphold it for
Australian sales because of conflict with TPA Severe attack on Open Source Software
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
UCITA Consumer
must travel to developers jurisdiction to commence litigation
surrender rights to content made with software
must delete software if don’t agree to licence changes that developers can impose at any time
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
UCITA (cont.) Developers can
monitor consumers computer use Internet to switch off software on user’s
computer prevent users from publicising flaws in
software avoid liability for bugs
Prohibits reverse engineering (conflicts with Aust Copyright Act
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Hague Convention Covers private international commercial litigation
Specifies which countries laws applies Specifies which countries courts have
jurisdiction Provides for registration of foreign judgments
US opposes it Prefers privately-run ADR
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
European Union Distance Sales Directive
Allows consumers to withdraw from consumer contracts within 7 days
Would apply to any sale to a EU consumer Only 10 of 17 European nations have enacted
it.
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
European Union (cont.) Distance Sales Directive (cont.)
Suppliers must Identify themselves and provide an address Inform consumer of right of withdrawal Provide information regarding characteristics;
price; delivery; payment method; after-sales services and warranties; duration of contract; period of offer; right of termination (if > 1 year)
Fulfil order within 30 days
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Trans-national Consumer Protection Industry Codes of Practice Netiquette Best Practice