Dan Svantesson

Online workplace surveillance - the view from down under

Dan Svantesson — Sun, 26 May 2013 16:30:58 PDT

A large part of our activities at work take place using the Internet. This article examines a selection of issues that arise when employers monitor their employees' online activities while at work, and at home (such as monitoring of e-mail and computer usage). In doing so, it approaches these issues primarily from the perspective of Australian law.

Celebrating 20 years of WWW - A reflection on the concept of jurisdiction

Dan Svantesson — Sun, 26 May 2013 16:30:58 PDT

As the Internet, and the discussion of Internet regulation, has matured, it now – 20 years after the birth of the World Wide Web – seems clear that rather than there being no regulation, or under-regulation, the Internet is overregulated in that conduct on the global Internet may come under the jurisdiction of virtually all states in the world. At the same time, there is a recent trend of courts showing reluctance to claim jurisdiction as broadly as they arguably can do under applicable law. This paper discusses, and analyses, a selection of approaches to the concept of jurisdiction. In doing so, account is taken of both public international law and private international law.

Time for the Law to take internet geolocation technologies seriously

Dan Svantesson — Sun, 26 May 2013 16:30:57 PDT

There are longstanding assumptions that the Internet operates independently of geographical location, and that it is borderless in nature. After all, sending an e-mail to a person in the office next door is done in the same manner as sending the same e-mail to a person located on the other side of the planet. Similarly, visiting a local website is done in the same manner as visiting a foreign website. The important role these assumptions have played in Internet regulation, 1 as well as more broadly, should not be underestimated. In fact, it could be said that a significant part of the current thinking about matters falling within the scope of Internet regulation takes these assumptions as its point of departure. In particular, these assumptions have guided our thinking on the matters of when a court may exercise jurisdiction over Internet conduct, and which country’s law should govern Internet conduct.

Data protection in cloud computing - The Swedish perspective

Dan Svantesson — Sun, 26 May 2013 16:30:56 PDT

This article describes and analyses three recent decisions by the Swedish Data Inspection Board (Datainspektionen) directly focused on cloud computing. All three decisions were published on 28 September 2011 as part of a supervisory project seeking to clarify what demands the Data Protection Act places on organisations utilising cloud computing. As such, and due to the fact that similar concerns arise in the three matters, there is considerable overlap between the three decisions. Indeed, large parts of text are identical in the three decisions. To avoid repetition, I discuss the first decision in most detail, and limit the discussion of overlapping issues in the context of the other two decisions.

Systematic government access to private-sector data in Australia

Dan Svantesson — Sun, 26 May 2013 16:30:55 PDT

This study of systematic government access to private-sector data in Australia suggests that, while the Australian government has a range of powers to obtain such data, those powers appear primarily aimed at obtaining specific data for specific purposes. Little was found by way of direct unmediated access by the government to private-sector data or government access to private-sector data in bulk. However, recent initiatives suggest that, in a not too distant future, Australian law may well cater for extensive, not to say excessive, systematic government access to private-sector data.

The Extraterritoriality of EU Data Privacy Law - Its Theoretical Justification and Its Practical Effect on U.S. Businesses

Dan Jerker B. Svantesson — Sun, 28 Apr 2013 22:55:43 PDT

Due to its extraterritorial effect, the European Union’s trailblazing data privacy law has long been a major concern for U.S. businesses. With the proposal for a new data privacy framework in the EU, with potential penalties of up to 2% of an offending enterprise’s annual worldwide turnover, such concerns are justified indeed; particularly as the EU at the same time seems to be expanding the extraterritorial reach of its data privacy law.

This article examines the extraterritoriality of current and proposed EU data privacy law and analyses whether those claims of extraterritoriality can be either justified or objected to by reference to international law. In doing so, it is demonstrated that international law lends support to the approach to extraterritoriality adopted in the EU’s data privacy law. However, at the same time, the examination of EU law highlights that, from the perspective of extraterritoriality, the current EU Directive is dysfunctional in its unnecessary complexity and the proposed EU Regulation is in desperate need of refinement.

Finally, the article presents a doctrine of “market sovereignty,” established by reference to the effective reach of “market destroying measures,” as a mechanism for determining the extraterritorial reach of jurisdictional claims.

'Sexting' and the law - How Australia regulates electronic communication of non-professional sexual content

Dan Jerker B. Svantesson — Mon, 10 Dec 2012 20:46:02 PST

Sexting - the electronic communication of non-professional images or videos portraying one or more persons in a state of nudity or otherwise in a sexual manner - has serious legal implications. For example, where the content portrays a person who is underage, the sender, receiver and any intermediary involved in the communication can be charged with child pornography offences under current Australian criminal law. In addition, sexting can give rise to other actions under criminal law, as well as a host of actions under civil law. This article describes sexting as a four-step process and seeks to identify the areas of law affecting sexting.

Privacy, the Internet and transborder data flows - An Australian perspective

Dan Jerker B. Svantesson — Tue, 25 Sep 2012 18:00:53 PDT

Cross-border transfer of personal information is now more common than ever before. Indeed, modern technologies like the Internet would simply not work in the absence of such transfers. At the same time, cross-border transfer of personal information is associated with serious privacy risks.

Taking an Australian perspective, this paper examines how the law seeks to balance these two considerations – the need for transfer, and the need for privacy protection.

A call for judicial activism: Rapid technological developments and slow legal developments

Dan J B Svantesson — Tue, 25 Sep 2012 18:00:52 PDT

Extract:

In most regards, the recent judgment in Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [20 I 0] NSWSC 267 ('the Gammasonics case') is rather uninteresting. In fact, taken at face value, the only interesting aspect of the case is that it contains a discussion of one significant legal question: that is, under what circumstances can software be classed as 'goods'? That is no doubt an important question, not least as such a classification may determine whether a buyer of software is entitled to rely on the terms implied under the various state Sale of Goods Acts.

'Sexting' and the law - 15 minutes of fame, and a lifetime of shame

Dan J B Svantesson — Tue, 25 Sep 2012 18:00:51 PDT

Sexting - the electronic communication of non-professional images or videos portraying one or more persons in a state of nudity or otherwise in a sexual manner - may have serious implications for the persons involved. From a legal perspective, such conduct may, for example, give rise to issues under defamation law, privacy law and copyright law. Even more seriously, where the content portrays a person who is underage, the sender, receiver and any intermediary involved in the communication can be charged with child pornography offences under criminal law. This paper examines some of the legal implications of sexting.

Pammer and Hotel Alpenhof - ECJ decision creates further uncertainty about when e-businesses 'direct activities' to a consumer's state under the Brussels I Regulation

Dan J B Svantesson — Tue, 25 Sep 2012 18:00:50 PDT

The European Court of Justice's recent judgement in the joined cases C-585/08 and C-144/09 will have substantial long-term implications for European e-businesses and e-consumers trading across borders. The key question considered was whether the fact that a website can be consulted on the Internet in the Member State of the consumer's domicile is sufficient to justify a finding that commercial or professional activities are being directed to that Member State within the meaning of Article 15(1)(c) of the Brussels I Regulation.

The Emperor's new legal education theory

Dan J B Svantesson — Tue, 25 Sep 2012 18:00:49 PDT

This article argues that good law teaching does not require a solid understanding of education theory. Instead, successful legal education requires four things - knowledge of the subject matter, creativity, interpersonal skills and showmanship - none of them benefitting significantly from any degree of deeper theorising. These observations are followed by some speculations as to the reasons why so many legal academics devote their limited research time to topics falling within legal education theory. Finally, dangers stemming from a misguided focus on legal education theory are highlighted.

'Unconscionability' in consumer ecommerce

Dan J B Svantesson — Tue, 25 Sep 2012 18:00:48 PDT

This article examines Australia's regulation of unconscionable conduct, in the setting of consumer ecommerce. Both the equitable doctrine of unconscionability and the regulation of unconscionable conduct under the Competition and Consumer Act 2010 (Cth) with its Australian Consumer Law are considered. Account is also taken of case law relating to how unconscionable conduct was regulated under the Trade Practices Act 1974 (Cth). The article highlights that, while the regulation of unconscionable conduct has great potential to benefit and protect ecommerce consumers, it has not really been utilised so far. Further, our key areas of concern for the unconscionability regulation of consumer ecommerce are identified and discussed. Finally, a few speculations as to the future role of unconscionability regulation for consumer ecommerce are presented.

Truisms about the Australian publishing climate for law journal articles, and some strategies to cope; or 'A Feminist perspective on the human rights of vegetarian child-soldiers in outerspace'

Dan J B Svantesson — Tue, 25 Sep 2012 18:00:47 PDT

The Australian Research Council's now abolished ranking of journals provided a tool to decide where an author should publish her/his journal articles. This article aims to provide some further, more balanced, guidance on journal article publishing for Australian authors.

Recent developments in private international law applicable to the internet

Dan J B Svantesson — Tue, 25 Sep 2012 18:00:46 PDT

Extract
The law is often criticized as being too slow to adapt to new technologies. Such criticism is well founded, not least in the context of rapidly developing Internet technologies. At the same time, it must be acknowledged that significant progress has been made in the law during the short lifespan of the Internet. Considering the area of private international law (or conflict of laws, as it often is referred to in Common Law countries), for example, the law has developed and even matured considerably. In fact, in 2010 and 2011 alone, there have been several important developments in private international law as applied to the Internet.

The regulation of cross-border data flows

Dan J B Svantesson — Tue, 25 Sep 2012 18:00:45 PDT

The regulation of cross-border data flows represents one of the greatest challenges currently facing data protection authorities and legislators around the world. An excessively strict approach will be harmful to international cooperation, trade, and engagement, while at the same time, too lax an approach will fundamentally undermine the value of privacy protection as a whole. This article discusses the conundrum of regulating cross-border data flows. While it does so in general terms, some special attention is given to how such regulation applies to cross-border data flows on the Internet. Having provided some necessary background observations regarding the issues surrounding the regulation of cross-border data flows, the article provides a brief overview of how a selection of regulatory schemes seeks to address cross-border data flows. Those approaches are then analysed, resulting in the proposal of four fundamental principles that ought to guide the regulation of cross-border data flow.

A legal method for solving issues of Internet regulation

Dan J B Svantesson — Tue, 25 Sep 2012 18:00:44 PDT

This article presents a legal method that can be used to find solutions to the challenge of regulating Internet technology. The method consists of ten steps and the reader is guided through the application of these steps. As the method can easily be transferred to other areas of regulation, the article should benefit anyone with an interest in research methodology.

An overview and analysis of the National Unfair Contract Terms Provisions

Loren Holly et al. — Mon, 12 Sep 2011 17:23:46 PDT

The Commonwealth Parliament has recently introduced the Australian Consumer Law, a legislative regime for a national consumer protection framework. One of the most significant changes to consumer protection within Australia has been the introduction of provisions governing unfair contract terms within consumer contracts. This article outlines the new provisions and examines the way in which the law is likely to be applied by the courts, with reference to relevant case law relating to similar provisions found in legislation in Victoria and New South Wales and United Kingdom.

Fundamental policy considerations for the regulation of Internet cross-border privacy issues

Dan J.B. Svantesson — Tue, 06 Sep 2011 18:07:54 PDT

We are currently witnessing major changes to the regulation of privacy, both in Europe and North America, as well as in the Asia-Pacific region. One of the most complex and controversial aspects of any regulatory scheme addressing privacy is the regulation of cross-border data flows, and such regulation has become all the more complex in an interconnected world. After providing some necessary background observations regarding the issues surrounding the regulation of cross-border data flows on the Internet, this article identifies and analyses eight fundamental policy considerations for any regulatory scheme addressing cross-border privacy issues.

What is Contract Law?

Dan J B Svantesson — Tue, 06 Sep 2011 18:07:52 PDT

Imagine a world without legally enforceable contracts. Could such a world function? Well, even if it could, commercial life in particular would be much less certain. Let’s say that you ordered a book from a website. You gave the seller your credit card details, they charged the agreed amount to the account, but did not send you the book. In a world without legally enforceable contracts there would perhaps be little you could do about it.