[AfrICANN-discuss] A .com domain name increases a company's exposure to foreign lawsuits, rules ECJ

Rafik Dammak rafik.dammak at gmail.com
Mon Dec 13 17:50:44 SAST 2010


sorry Ntahigiye but I don't really agree with you, do we know why our
citizens buy domains under .com instead of ccTLDs ? maybe it sometimes more
easy and without so much burden.



2010/12/13 Ntahigiye <antahigiye at tznic.or.tz>

> Inne,
> A good lesson to our citizens preferring .coms instead of .ccTLDs.
> Ntahigiye Abibu (.tz registry)
> *From:* africann-bounces at afrinic.net [mailto:africann-bounces at afrinic.net]
> *On Behalf Of *Anne-Rachel Inné
> *Sent:* Sunday, December 12, 2010 1:27 PM
> *To:* africann at afrinic.net
> *Subject:* [AfrICANN-discuss] A .com domain name increases a company's
> exposure to foreign lawsuits, rules ECJ
> http://www.out-law.com/page-11658
> A .com domain name increases a company's exposure to foreign lawsuits,
> rules ECJ
> OUT-LAW News, 10/12/2010
> Companies using a .com or .eu domain name, or displaying international
> codes for phone numbers, are more likely to be 'directing' their activities
> at foreign consumers, affecting where they can sue or be sued, the Court of
> Justice of the EU has ruled.
> Consumers can demand that contract disputes are heard in the courts of
> their own country if a company in another EU Member State has directed its
> business at consumers in that state or all EU Member States.
> The ECJ said, though, that merely operating a website which foreigners can
> access is not enough to qualify as a company directing its activities to
> other countries.
> "It does not follow ... that the words ‘directs such activities to’ must be
> interpreted as relating to a website’s merely being accessible in Member
> States other than that in which the trader concerned is established," said
> the ruling<http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?lang=en&num=79898792C19090144&doc=T&ouvert=T&seance=ARRET&where=%28%29>
> .
> The ECJ ruled on two cases together which both concerned the use of the
> internet to book or reserve services abroad.
> In one case, Austrian resident Peter Pammer sought a refund from German
> shipping company Reederei Karl Schlüter for a voyage that he booked but did
> not take. He argued that the ship did not match the website's description.
> The shipping company said his action should be heard in Germany, not
> Austria.
> In the other case, German resident Oliver Heller booked rooms in Hotel
> Alpenhof in Austria but left without paying his bill due to complaints about
> the accommodation. The hotel tried to sue him in an Austrian court and
> Heller argued that any action should be in Germany.
> An EU Regulation of 2001 on jurisdiction, known as the Brussels I
> Regulation<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R0044:EN:NOT>,
> says that, generally, a consumer can sue a foreign business either in his
> own Member State or in the business's, while a business must sue a consumer
> in the consumer's Member State. This consumer protection will apply in most
> cases, but only when a trader 'directs' its activities to the EU Member
> State the consumer lives in or to several countries including that Member
> State.
> In the two cases it was claimed that because the consumers used the
> internet to access the foreign operators' services, those services were
> directed to the consumers' countries. The ECJ was asked to determine the
> criteria by which a trader's activity on its website or on an intermediary's
> site can be said to be directing its activity to a Member State.
> The ECJ said that the 2001 Regulation on jurisdiction had loosened the law
> in response to changing technology so that it would apply to more
> businesses.
> "This change, which strengthens consumer protection, was made because of
> the development of internet communication, which makes it more difficult to
> determine the place where the steps necessary for the conclusion of the
> contract are taken and at the same time increases the vulnerability of
> consumers with regard to traders’ offers," said its ruling.
> Having said that the mere fact of having a website does not count as
> directing activities to every country from which it is accessible, the ECJ
> outlined the factors that do point towards activity being directed at
> foreign countries.
> "The trader must have manifested its intention to establish commercial
> relations with consumers from one or more other Member States, including
> that of the consumer’s domicile," said the ruling. "Clear expressions of
> such an intention on the part of the trader include mention that it is
> offering its services or its goods in one or more Member States designated
> by name."
> "The same is true of the disbursement of expenditure on an internet
> referencing service to the operator of a search engine in order to
> facilitate access to the trader’s site by consumers domiciled in various
> Member States, which likewise demonstrates the existence of such an
> intention," it said.
> The ECJ listed factors that, "possibly in combination with one another,"
> are capable of demonstrating the existence of an activity 'directed to' a
> consumer's Member State.
> "The following features ... would, subject to the relevant national court
> ascertaining that they are present, constitute evidence of an activity
> ‘directed to’ one or more other Member States," it said. "The international
> nature of the activity at issue, such as certain tourist activities; mention
> of telephone numbers with the international code; use of a top-level domain
> name other than that of the Member State in which the trader is established,
> for example ‘.de’, or use of neutral top-level domain names such as ‘.com’
> or ‘.eu’; the description of itineraries from one or more other Member
> States to the place where the service is provided; and mention of an
> international clientele composed of customers domiciled in various Member
> States, in particular by presentation of accounts written by such
> customers."
> "If ... the website permits consumers to use a different language or a
> different currency, the language and/or currency can be taken into
> consideration and constitute evidence from which it may be concluded that
> the trader’s activity is directed to other Member States," it said.
> According to the ruling, then, if a company operates websites at addresses
> using other country's top level domains, such as .uk when used by a French
> company, or if it uses non-geographic top level domains such as .com, this
> indicates a directing of activity at other countries.
> The ruling said, though, that the mere presence of " email address or
> geographical address, or of its telephone number without an international
> code " does not prove that the site is directed outside of its country's
> borders because these details are needed for domestic, as well as
> international, customers.
> The ruling also warned companies that the nature of sites run by agents or
> business partners could also determine whether consumers can force legal
> action to be taken in their home country.
> "The fact that the website is the intermediary company’s and not the
> trader’s site does not preclude the trader from being regarded as directing
> its activity to other Member States, including that of the consumer’s
> domicile, since that company was acting for and on behalf of the trader," it
> said. "It is for the relevant national court to ascertain whether the trader
> was or should have been aware of the international dimension of the
> intermediary company’s activity and how the intermediary company and the
> trader were linked."
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