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

[Badru Ntege (NFT)]

Alex

The challenge is who would lead this discussion and to what point do we make
progress without falling into the debate of trying to capture / own the
internet.  I kind of see a protracted IGF like discussion with no clear end.

 Badru
[] 
> 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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