Dan Svantesson

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.

Australia

Dan J. B. Svantesson — Tue, 06 Sep 2011 18:07:50 PDT

Some contemporary phenomena such as generalization of access to internet and mass tourism have strongly increased the internationalization of consumer law, a category formerly rather domestic. However, the internationalization of relationships has not always been followed by the updating of rules and mechanism to settle the new disputes that arise. In order to contribute to the improvement of that situation, we have conducted a comparative survey on the subject. in addition to classical issues of private international law (jurisdiction, applicable law and recognition and enforcement of foreign judgements), this book deals with the other methods (co-operation, procedural tools, arbitration, ADR) that legal systems could implement to cope with international protection of consumers.

'Sexting' and The Law - How Australia Regulates Electronic Communication of Non-Professional Sexual Content

Dan Svantesson — Tue, 06 Sep 2011 18:07:49 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 – 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 affect sexting.

Privacy and consumer risks in cloud computing

Dan Svantesson et al. — Thu, 14 Oct 2010 16:40:03 PDT

While vaguely defined, and wide in scope, so-called ‘cloud computing’ has gained considerable attention in recent times. Put simply, it refers to an arrangement under which a user relies on another party to provide access to remote computers and software, whose whereabouts, including their jurisdictional location, are not known nor controllable by the user. In this article, we examine the privacy and consumer risks that are associated with cloud computing.

A best practice model for e-consumer protection

Dan Svantesson et al. — Wed, 13 Oct 2010 23:36:53 PDT

This article outlines a set of criteria for assessing the value of e-consumer protection schemes. It is intended that it be used as a tool, for policy-makers, industry associations, corporations and consumer organisations in all jurisdictions, seeking to assess the appropriateness of their consumer protection regulation. It can be used to devise new, or improve existing, policies, and it can also be used to compare the usefulness of e-consumer protection in different jurisdictions. It commences with a brief review of existing frameworks for the protection of e-consumers, which demonstrates the need for a model that uncompromisingly presents the needs of consumers. An overview of the model is provided, followed by a presentation of the model's key features. A further section identifies the several ways in which the model can be applied in order to improve the usefulness of e-consumer protection. An earlier version of the model was published in checklist form (Clarke R. ‘A Major Impediment to B2C Success is … the Concept 'B2C' Invited Keynote, Proc. ICEC'06, Fredericton NB, Canada, 14–16 August 2006, at http://www.rogerclarke.com/EC/ICEC06.html#TNT). The present article revises and expands that checklist, and presents the rationale underlying each item in it.

Svantesson on the law of obligations

Dan Svantesson — Tue, 27 Jul 2010 21:09:54 PDT

The second edition of Svantesson on the "Law of Obligations" provides an accessible, yet comprehensive, overview of how the rules of common law and equity, together with the provisions of applicable legislation such as the Trade Practices Act 1974 (Cth), the Fair Trading Acts and the Sale of Goods Acts, affect contractual and other obligations. Thus, a range of topics are covered, including:

* the implication of terms;
* the effect of vitiating factors under contract law;
* the statutory prohibition against e.g. misleading and deceptive conduct and against misrepresentations; and
* the relevant economic torts.

While the material dealt with is approached from an Australian perspective, consideration is also given to comparative international treatment of the issues raised.

International ranking of law journals: Can it be done and at what cost?

Dan Jerker B. Svantesson — Tue, 29 Jun 2010 21:31:10 PDT

This paper discusses issues associated with international ranking of law journals. Some catalysts for the development of international journal ranking are highlighted, reasons for ranking are discussed and a range of ranking methodologies are analysed. The paper illustrates the problems associated with international journal rankings and the negative consequences that inevitably flow from such exercises.

The paper was prompted by the Australian Research Council's (ARC)'s recent Excellence in Research for Australia (ERA) scheme which, as one of its components, requires international journal ranking. While examples are drawn from the ERA scheme, the paper's discussion is general and much broader in scope. That is because schemes like the ERA will come and go, but the issues of international journal rankings will remain.

Entering an era of research ranking: Will innovation and diversity survive?

Dan Jerker B. Svantesson et al. — Tue, 29 Jun 2010 21:31:10 PDT

There is something fundamentally absurd about the idea of ranking research. At the same time, no one can seriously argue that all research is equal in importance and quality. Either way, we are doubtlessly witnessing a dramatic change in the management and organisation of research. One aspect of this change is a move towards the ranking of research. In the United Kingdom, the Research Assessment Exercise (RAE) has been carried out on six occasions, with plans for another. Further, the Australian Government is in the process of introducing the so-called Excellence in Research for Australia (ERA). These are just some examples of a widespread trend affecting research around the world.

The choice of courts convention: How will it work in relation to the Internet and e-commerce?

Dan Jerker B. Svantesson — Tue, 29 Jun 2010 21:31:09 PDT

The Hague Convention on Choice of Court Agreements was concluded on 30 June 2005, and could be said to be the fruit of the Hague Conference on Private International Law's "judgement project" that commenced some 13 years earlier. As the name indicates, it aims to regulate choice-of-forum clauses.

Cross-border telemedicine: New area, same legal challenges?

Dan Jerker B. Svantesson — Tue, 29 Jun 2010 21:31:08 PDT

The availabililty of medical services and products online (telemedicine) creates serious regulatory challenges. Those challenges are complex where the provider and receiver are in the same country, and even more complex when the provider is not in the same country as the recipient. Focusing on Australian law, this paper examines the regulatory challenges associated with cross-border telemedicine.

The right of reputation in the Internet era.

Dan Jerker B. Svantesson — Tue, 29 Jun 2010 21:31:07 PDT

Protecting one's reputation has arguably become harder in this time of YouTube, 'blogs' and mobile phone cameras. The simple truth is that it is easier to get 'caught' doing something inappropriate and it is easier for people to publish defamatory materials. This article is a somewhat eclectic selection of issues of particular significance to the right of reputation in our modern Internet-based society.

A very expensive box- Exactly what do you get when buying computer software "off-the-shelf"?

Dan Svantesson — Thu, 11 Feb 2010 14:39:10 PST

Extract:

Imagine that you go to one of the major electronics stores, or perhaps a department store. You find a computer game that you like, take it to the checkout, pay for it and bring it home. When you get home, you eagerly rip open the package and insert the CD-ROM in the CD drive of your computer. Having spent 5-10 minutes waiting for the game to get installed onto your hard drive, you are asked to click "I agree" to a lengthy License Agreement. Do you read the agreement? Perhaps you should.

Codifying Australia's Contract Law - Time for a Stocktake in the Common Law Factory

Dan Svantesson — Thu, 11 Feb 2010 14:39:09 PST

It has been noted that: ‘the law of England has swollen to an unmanageable bulk. There is but one cure and that is codification…’ 2 . That statement was made approximately 200 years ago, and the situation is by no means better today. Nor can it be said that the situation in Australia is much better than that in England. The volume of case law, particularly when combined with what seems like an endless flow of lengthy and complex statutes, place the Australian law in an unhealthy state. Just like a store or a warehouse periodically needs to take stock of its assets, the common law is now in desperate need of stocktake.

Some observations on the regulation of misleading or deceptive conduct

Dan Svantesson — Thu, 11 Feb 2010 14:39:08 PST

Extract:

If one were to select the single most important statutory provision in Australian law, the choice would probably fall on s 52 of the Trade Practices Act 1974 (Cth) (the TPA). Few, if any, other legislative provisions have as wide and far-reaching an application as that section.

Privacy law: Australia: Conflict of laws issues associated with an action for interference with privacy

Dan Jerker B. Svantesson — Thu, 24 Sep 2009 21:49:51 PDT

Recent developments indicate that Australia may be ready to recognise an action for interference with privacy. Similar progress can be seen in some other countries. When such an action is recognised, whether in the form of a new tort or in the form of a statutory action, it will doubtlessly give rise to conflict of laws questions. A person in one state will perceive that her/his right to privacy has been violated by a person or organisation in another state, and questions as to where she/he can sue the other party, and which law will be applicable, will become relevant. Such scenarios are particularly likely to occur in the Internet context. This article examines those, and related, questions. In doing so, focus is placed on Australian law and particular emphasis is placed on the action’s application in relation to Internet conduct.

An introduction to jurisdictional issues in cyberspace

Dan Jerker B. Svantesson — Thu, 24 Sep 2009 21:49:49 PDT

Imagine a state proclaiming that it will claim jurisdiction over, and apply its laws to, any website that can be accessed from a computer located in its territory. The response would perhaps be outrage from some. Others would point to the ineffective nature of such a rule, and yet others would perhaps view the model as infeasible. Indeed, when the Advocate-General’s office of Minnesota in the mid 90’s issued a statement that: ‘[p]ersons outside of Minnesota who transmit information via the Internet knowing that information will be disseminated in Minnesota are subject to jurisdiction in Minnesota courts for violations of state criminal and civil laws’, it was met with strong criticism.

Against this background, persons unfamiliar with private international law (or as the discipline is referred to in common law systems, conflict of laws) might be surprised to find that many, not to say most, states’ private international law rules do in fact provide for jurisdictional claims over any website that can be accessed in its territory, in relation to a wide range of legal matters. Similarly, many, not to say most, states’ private international law rules do provide for the court to apply the law of the state where the court is located in many situations where jurisdiction is being exercised over a foreign website.

This article examines the issues associated with the application of private international law to online activities. In doing so, the four interconnected elements of private international law; jurisdiction, choice of law, the courts’ option of declining jurisdiction and recognition and enforcement are examined. Examples and experiences are primarily drawn from Australia, and particular focus is placed on the Internet defamation dispute between US publishing giant, Dow Jones & Company Inc, and Victorian businessman, Joseph Gutnick. However, non-Australian materials, particularly from the European Union (i.e. community instruments), the People’s Republic of China and the United States of America, are relied upon.

The times they are a-changin' (every six months)-- The challenges of regulating developing technologies

Dan Jerker Borje Svantesson — Mon, 10 Aug 2009 21:55:21 PDT

For a period of time, the Internet has been seen as a virtually borderless communications medium, making it possible to think of a world not divided by geographical, political, cultural or even linguistic borders. However, the Internet is changing rapidly, continuously and substantially. The Internet of today is radically different to the Internet of five, ten or twenty years ago. Indeed, today, it is getting difficult to view the Internet as borderless. So-called geo-location technologies – technologies making it possible for Internet actors to identify the geographical location of those they come into contact with – challenge the Internet‘s borderless nature. Drawing upon examples taken from the interaction between the law and geo-location technologies, this paper examines the challenges associated with the regulation of rapidly developing technologies. More specifically, focus is placed on such challenges in the context of Internet regulation.

How does the accuracy of geo-location technologies affect the law?

Dan Jerker B. Svantesson — Mon, 10 Aug 2009 21:55:20 PDT

Geo-location technologies allow website operators to identify the geographical location of those who visit their websites. Having knowledge of an access-seeker’s geographical location means that they can provide content targeted to that location. This has several uses. For example, it enables the website operator to:
I. Provide advertisements relevant for the access-seeker’s particular location;
II. Restrict access to content that may be unlawful in certain jurisdictions;
III. Restrict access to content that the website operator is licensed to provide only in a limited geographical area; and
IV. Avoid entering into transactions with people from locations known to be “fraud hot-spots”.

The accuracy of geo-location technologies is obviously of fundamental importance for all these uses. However, the consequences of providing advertisements aimed at the wrong location may be far less serious than, for example, failing to restrict access to content that the website operator is licensed to provide only in a limited geographical area. In situations where a website operator seeks to rely on the use of a geo-location technology to argue that it has met its legal obligations, the accuracy levels of the geo-location technology used may indeed be determinative.

Having provided a brief overview of how geo-location technologies work, this paper examines how accurate they are. As part of that discussion, recommendations are made for how courts ought to approach the use of geo-location technologies.