Case Study: E-Commerce Law - Jurisdiction, Contracts, Consumer Law

This assignment presents a comprehensive case study of e-commerce law, focusing on jurisdiction, e-contracts, defamation in cyberspace, privacy, and consumer law. It examines the importance of choice of law rules in Australia and personal jurisdiction, referencing the landmark case of Dow Jones and Company Inc v Gutnick. The analysis extends to e-contracts, discussing the Peter Smythe v Vincent Thomas case and the incorporation of terms into commercial contracts, as well as the presentation of terms and conditions to website users. The study further delves into privacy issues, referencing ABC v Lenah Game Meats Pty Ltd and the Australian Privacy Principles, and concludes with an examination of consumer law in cyberspace, particularly misleading and deceptive conduct under the Australian Consumer Law (ACL), using the Google Inc v Australian Competition and Consumer Commission case as an example. Desklib provides access to this and other solved assignments to aid students in their studies.

Jurisdiction
1.
An overall observation that can be made regarding this case is that according to the present roles
of personal jurisdiction in Australia, a resident of Australia will nearly all the time be allowed to
sue in Australia regarding slanderous matter that has been published on a foreign-based Web
server, in any case, where the claim of the plaintiff has been confined to the damage caused to
the repute suffered in the medium of resolution.
It has been suggested in this case that in view of the present rules it has become relatively easy
for establishing jurisdiction in transnational defamation action in Australia, either on the ground
that the damage has been underwent in forum or on the basis that the tort took place there. While
interpreting the term 'damage', a very liberal view has been adopted by the courts in Australia. It
has been said that the consequences of physical, social or financial injury that has been found to
be taken place in the forum where the objectionable material has been published or distributed.
On the other hand, it has been noted by the court that it has been held since long that the plaintiff
who had started distinct actions in numerous dominions regarding the same issue has abused the
process and such plaintiff is required to bring all the claims in a solitary forum. Secondly, it will
be available to the defendant to challenge the selection of domestic forum (Australian) made by
the plaintiff by pursuing a stay on the ground that the nominated court by the plaintiff is
evidently unsuitable. It also needs to be noted that the defendant may also be allowed to contest
the establishment of overseas actions by the plaintiff, by making an application related with anti-

suit injunction. During the trial related with the merits of the action, it is possible for the
defendants to argue as a defense that the conduct of such defendant was reasonable and justified
in law and practice of the other nation where it had taken place. As a matter of practical issue, it
had been noted by the court that generally a plaintiff is doubtful to soar into sections where the
plaintiff does not have a reputation on account of the reason that very little or no damage may be
recovered.
2.
This case was decided by the High Court of Australia.1 It was related with Internet defamation.
The main point of contention in this case was if the courts in Australia have the jurisdiction to
resolve this case. In a undisputed judgment delivered by the seven justices of High Court, it was
held that Gutnick had the right of taking action in the defamation at the place of his primary
residence and at the place where he was known the best. Therefore, the High Court stated that it
had not taken place at the time of the publication of the material but as soon as any third party
has gone through the publication and assumed less of a person who has been defamed by such
publication.
In this way, this landmark decision of the High Court was the first decision by any final appellate
court regarding the issue of jurisdiction in case of Internet defamation. A wide range of
significant issues were raised by this case, like the meaning of 'publication' in case with
defamation, the issue of the place of publication, and application of basic principles related to the
conflict.
1 Dow Jones and Company Inc v Gutnick [2002] HCA 56

3. In this case, the reasoning of the High Court is based on precedent that is followed by several
other countries. Consequently, the Internet publishers operating strictly from their own ground
may have to face lawsuits all across the globe. A concern has also been expressed that these
publishers may have to face significant problems in defending these suits across the world.
4.
It can be stated that while Internet technologies have resulted in a revolution in communication,
the legal impact in context of cyber defamation has been more modest but nevertheless
significant. By focusing on the issue of publication in of deprivation, it can be argued that the
challenges created by Internet technologies have made the courts and legislatures to reconsider
the approach adopted towards key concepts and issues related to the defamation law.
E-Contracts
1.
A plane has been registered on eBay at an opening price of $150,000 even the proprietor feels
that the plane is worth more than $250,000. The plane is purchased by a person for $150,000.
The first owner claims that he is not required to deliver the plane as he had only made an
invitation to treat and there was no binding contract. The owner also claims that it will be
ridiculous that any person will purchase a plane on eBay without inspecting it. However, the

court stated that the person knew how eBay work and therefore he should have known that there
was a binding contract.2
2.
The court stated that when a buyer and a seller had agreed to admit the terms and conditions
provided by an online auction facility, it is acknowledged by the participants that such online
auction is going to have features that are similar as well as different from the auctions conducted
at other forums. We agree with this decision because it was held that online auction can be
described as a 'species of auction'.
3.
Faye Fangfei Wang had stated in this article that in the present age of globalization and Internet,
it is possible that more flexible methods can be applied for creating a contract on account of the
quickly altering technology being used in the contemporary commercial practices. By using
electronic means for contracting, the efficiency of the process of contracting can be increased
and trans border commercial dealings can be promoted.3
4.
2 Peter Smythe v Vincent Thomas [2007] NSWSC 844
3 Fangfei F, “The incorporation of terms into commercial contracts’ reassessment in the digital
age” Journal of Business Law . 2015, Issue 2, p87-119.

By clicking on the "I Agree" tab, the Internet users may into a legally binding electronic contract.
Such contract is legally enforceable with the online service provider. As is the case with any
legal contract, both parties including the user, is required to agree to the terms and conditions
that have been offered by the online service for the purpose of creating an agreement that is
enforceable by law.
5.
An exclusion clause or a limitation class can be described as a contractual term through which an
attempt is made to exclude or limit the liability of a party. The use of such clauses is widespread
in case of electronic contracts. However, in case of the exclusion or limitation clauses, apart from
the general contractual exclusion clauses, in case of electronic contracts, specific additional
clauses may appear. These clauses tried to exclude or limit the liability under specifics of
electronic contracts.
Defamation in Cyberspace
1.
Generally, a defamatory statement can be described as the statement that will be considered by
any ordinary person to be damaging for their reputation and character. For this purpose, the court
will decide if the statement can be actually considered as defamatory. In this regard, slander is
related with spoken defamation and libel is related with written defamation. There are certain
defenses available for a claim of defamation. Therefore if it can be established by the defendant

that whatever has been said or published by the defendant regarding the plaintiff was true, the
plaintiff cannot be successful in his action. On the other hand, in order to have a successful
action for defamation, the plaintiff should establish that the statement was untrue.
Another difference available is that of privilege. If the defendant is a particular public official or,
the statement has been made during certain official proceedings, it may be privileged and as a
result. It may not be considered as the basis of defamation suit.
2.
Hockey was related with a series of articles, advertising sign boards and placards and twitter
posts that appeared on the three Fairfax media newspaper mast heads. The Federal Treasurer had
received $8000 payout for the two tweats hundred and $20,000 for similar words mentioned in
the newspaper advertising signs and a total of $2000 as damages.4
This decision can be considered as a total vindication, as sought by the Federal Treasurer. The
verdict can be described as orthodox and unsurprising, keeping in view the principles of
defamation law.
3.
In Mickle v Farley [2013] it was stated by the court that a former Orange high school student is
required to pay $105,000 as damages for the false comments made by him regarding his former
teacher, on Facebook and Twitter.5
4 Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
5 Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652.

4.
It has been stated by Turner that the courts in Australia were generally reluctant in imposing a
positive duty for monitoring the open access to Internet discussion forum.6
5.
Belinda had identified outstanding jurisdictional and the selection of law issues, which are still
present regarding the actions related with defamation in Australia after the decision given in
Gutnick case.7
Privacy
1.
Regarding the issue of privacy, it was indicated by Court in this case that in future, the court may
be receptive towards the arguments according to which the right to privacy needs to be
recognized.8
2.
6 Turner R, “Internet Defamation law and Publication by omission: A Multi-Jurisdictional
Analysis”. [2014] UNSWLawJl 2
7 Robilliard B, “Jurisdiction and Choice of Law Rules for Defamation Actions in Australia
Following the Gutnick Case and the Uniform Defamation Legislation” Australian International
Law Journal at pg 189
8 ABC v Lenah Game Meats Pty Ltd [2001] HCA 63

In case the new action for the invasion of privacy is being developed in Australia, it should be
limited to protecting the privacy of a natural person. It can be suggested in this regard that such
limitation needs to be based on the fact that law has been designed for protecting the dignity of
human beings and it becomes less relevant while dealing with the privacy of organizations.
3.
Professor Niloufer Selvadurai had pointed out that it is becoming increasingly difficult to secure
the privacy of the information that has been collected, exchanged or stored on the Internet.9 The
reason is that the technologies that can support intrusive practices like data mining, spyware and
that are missing are increasingly becoming the more subtle and sophisticated. Therefore, the
challenge faced by the lawmakers is to create laws that can deal with the threats that have been
already identified and also have the capacity to deal with future evolution in technology.
Consumer law in Cyberspace
1.
A specific prohibition has been imposed on misleading and deceptive conduct. It has been
imposed by section 18, ACL. Although the terms, misleading and deceptive have not been
described in the ACL, and therefore the dictionary meaning of these terms need to be adopted.
Typically the conduct requires that this representation of some nature should be made. However,
9 Selvadurai N, “Identifying the creators of online content in a converging digital environment”
(2013) 18 (3) Media and Arts Law Review 177-194

mere exaggerated claims or puffery Belmar dedicated to be considered as misleading/deceptive
conduct.
2.
It was decided by the majority of the High Court that the principles developed on the basis of
section 52 including that the intention was irrelevant and section 22 can be breached by a
corporation even in cases where it had acted honestly and reasonably. It was earlier observed by
the High Court that it is apparent that corporation was not the source of information, and it had
impliedly or expressly disclaimed any belief regarding the truth or the falsity of the statement
and it was simply passing on the information for what it is worth. The court stated it was
doubtful if Google can be considered to be involved in conduct that was misleading or deceptive.
3.
The court had stated that first of all, the fact needs to be noted that the misleading conduct
completely lay within the text of advertisements. The second fact is that each advertisement
comprised of three elements that have been dictated by the advertiser. These are the headline of
the ad, the text of the ad and the URL of the advertiser. Therefore the court stated that if Google
was considered to be responsible, it will result in "absolute liability of an exceptionally wide
nature for the party's publishing information in the media. And there would be a distinction
between the ads published in online media and the advertisements that take place in traditional
media".
Telecommunications law, Broadcasting law and Electronic commerce

Question - Moot
Justices French, Crennan and Kiefel had stated in their judgment that the essence of the matter
was to decide if there was an influence of authorization that was the result of the answers to the
factual questions arising in this case. Regarding the first two questions, it appears that it was
discovered by the High Court that iiNet did not have the required control or the ability for
preventing infringement, mainly due to the reason that iiNet did not have any direct power of
preventing the customers from using BitTorrent system.10
On the other hand, Justices Gummow and Hayne did not consider that it was reasonable for iiNet
to act on 'incomplete allegations' related with the infringement of copyright mentioned in the
infringement notices without first investigative action for substantiating these claims. Therefore
these judges stated that iiNet did not have to take such investigations at its own costs and no such
obligation is imposed on the company by the Copyright Act.
10 Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA

Bibliography
Fangfei F, “The incorporation of terms into commercial contracts’ reassessment in the digital
age” Journal of Business Law . 2015, Issue 2, p87-119.
Robilliard B, “Jurisdiction and Choice of Law Rules for Defamation Actions in Australia
Following the Gutnick Case and the Uniform Defamation Legislation” Australian International
Law Journal at pg 189
Selvadurai N, “Identifying the creators of online content in a converging digital environment”
(2013) 18 (3) Media and Arts Law Review 177-194
Turner R, “Internet Defamation law and Publication by omission: A Multi-Jurisdictional
Analysis”. [2014] UNSWLawJl 2
Case Law
ABC v Lenah Game Meats Pty Ltd [2001] HCA 63
Case and the Uniform Defamation Legislation”
Dow Jones and Company Inc v Gutnick [2002] HCA 56
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
Peter Smythe v Vincent Thomas [2007] NSWSC 844
Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA