(1)
People v. Lipsitz New York Supreme Court 1A Part 8,
June 1997. In this case the defendants were accused
of fraudulent solicitation of magazine subscriptions
under a variety of business names and over the Internet.
The defendants tried to rely on the defense that their
actions took place outside of the geographical boundaies
of New York. The New York Court held that the regardless
of whether the case came from out of state, the acts
had an effect in New York and violated NY Law. The Court
pointed out that Internet brings nothing new to world
of fraud and existing fraud laws may be adequate.
(2)
Compuserve v Patterson, 1996 WL 405356 (6th Cir.(Ohio)),
No. 95-3452, July 22, 1996) This case used "long arm
jurisdiction" to establish jurisdiction over non residents
if their acts met the definition of "transacting business"
The Court concluded that there was sufficient contacts
to give the state jurisdiction even though those contacts
were electronic contacts.
(3)
Playboy Enterprises, Inc. v. Chuckleberry Publishing
Inc., S.D.N.Y. No 79 Civ 3525 (SAS0, June 19, 1996.)
An Italian company was accused of infringement of its
Playboy's trademark rights. The issue for the Court
was whether jurisdiction was established in the US based
on the actions of the Italian web site. The Court determined
that, although the web site was physically located in
Italy, there were sufficient contacts with the USA to
conclude that the Italian company was soliciting US
customers through their web site. Activities on the
web site included, receiving faxes and emailing passwords
to US consumers.
E.
Practical Considerations for Minimizing Liability for
Web sites
(1)Disclaimers:
(a) Disclaim warranty as to merchantability or fitness
for particular purpose, when applicable.
(b) If
the site has editorial content, disclaim any guarantee
as to the accuracy of the information, when applicable.
(c)Disclaim any warranty as to the accuracy or reliability
of sites to which your web site links.
(2)
Indemnification: Require acknowledgement that the web
site visitor agrees to indemnify the web site owner
for any damages caused, when applicable.
(3)
Formal Linking Agreements: Case law from the United
States has held that the listing of links to other websites
is in the nature of a database, and does not require
formal linking agreements. However, if there is likely
to be any controversy concerning said links, a formal
agreement is advised.
(4)
Checklist for Merchants:
(a)Ensure all terms displayed in clear simple language
(b) Use page prompts to encourage consumer to scroll
through terms and conditions.
(c) State that agreement online is the sole exclusive
agreement and final
(d)
Offer telephone line to provide explanation of any terms
the consumer does not understand.
(e) Include warranty" that the person indicating acceptance
has the authority to do so.
(f)Good
record keeping.
(g)For
larger purchases get a fax back signature
(h) Get traditional hard copy agreement with long term
trading, business partners, large contracts or when
you require more assurance from the other party.
Conclusion:
The purpose of this article has been to provide an
overview of commercial legal issues involving the
use of the Internet. Internet legal issues have a
particularly international character because of their
multi-jurisdictional nature. Thailand is still in
the process of forming its Internet legal infrastructure.
Nevertheless, reference has been made to existing
Thai law that may be applicable and proposed draft
legislation in Thailand. Recognition has been given
however to the law of the United States which is currently
the world leader in Internet technology and Internet
law.
