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

[Alex Gakuru]

vika,

<random thoughts> rather than look at this problem through the old (
or traditional) legal lenses, maybe it may be necessary for an
international convention on cyberjuris for all netizens? - all
signatory nation states would then domesticate it to be in tandem with
their local laws? the current legal void is what continues to give
some states overwhelming powers over others in determining what
domains, rights or bytes will fly on the net and which one won't. i.e.
is the problem different hence needing a different solution?  </random
thoughts>

alex

On Tue, Dec 14, 2010 at 11:56 AM, Vika Mpisane <vika at zadna.org.za> wrote:
> I admit I read through the article quickly but I think the issue is not
> really in which domain you register – instead the issue is a pure legal
> relating to where jurisdiction lies for EU states where goods are advertised
> on a website and are directed to potential clients in another EU country. It
> doesn’t seem the ruling would affect non-EU countries.
>
>
>
> Yet the ruling still does raise a good question in terms of the law of
> contracts: where exactly does the cause of action arise in online
> transactions? If I’m a business in South Africa and Anne-Rachel in Niger
> accepts my terms & purchases something from me, and we subsequently have
> dispute leading to a court case, which court has jurisdiction – South
> African or Niger? Any contract lawyer on this list?
>
>
>
> Regards,
>
> Vika Mpisane
>
> ZADNA
>
> +27 11 275 0082
>
>
>
> From: africann-bounces at afrinic.net [mailto:africann-bounces at afrinic.net] On
> Behalf Of Rafik Dammak
> Sent: 13 December 2010 05:51 PM
> To: africann at afrinic.net
> Subject: Re: [AfrICANN-discuss] A .com domain name increases a company's
> exposure to foreign lawsuits, rules ECJ
>
>
>
> hello,
>
>
>
> 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.
>
>
>
> Regards
>
>
>
> Rafik
>
> 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.
>
> 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, 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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