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Positions and Statements

 

 

JURISDICTION IN THE CONTEXT OF ELECTRONIC COMMERCE

 

Dear Delegates:

 

Jurisdiction in cross-border transactions is an important issue for global business. Since 1992 the Hague Conference has been reviewing this issue and has recently released its Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. During the last eight yearswe have seen the advent of commercialization of the digital environment, adding a new element to the work of the Hague Conference.

 

It is no surprise that jurisdictional issues have become more complex because of electronic commerce. Various organizations on a global and regional scale – both governmental and in the private sector – have begun to address the complexities inherent in better understanding the impact e-commerce has on the nature of contractual relationships.

 

At the request of the business community, the United States Council for International Business (USCIB) and the World Information Technology and Services Alliance (WITSA) together with other industry representatives and the Internet Law and Policy Forum, have attempted to set forth a non-exhaustive catalogue of completed and ongoing work being conducted in a wide variety of global fora on the issue of jurisdiction in the context of electronic commerce.

 

Included is both the completed and ongoing work of the following organizations:

·         The Organization for Economic Cooperation and Development

·         The Free Trade Area of the Americas’ Joint Government-Private Sector Committee of Experts on Electronic Commerce

·         The World Intellectual Property Organization

·         The Internet Law and Policy Forum

·         The Business and Industry Advisory Committee to the OECD

·         The International Chamber of Commerce

·         The Alliance for Global Business

·         The Global Business Dialogue for Electronic Commerce

·         The Global Internet Project

·         The TransAtlantic Business Dialogue

·         The TransAtlantic Consumers Dialogue

·         Consumers International

·         The United States Government

·         The European Union

·         The Hague Conference on International Private Law

·         The American Bar Association

·         The Information Technology Association of America

·         The Software and Information Industry Association

·         The Electronic Commerce and Consumer Protection Group

 

If you have any questions regarding the attached catalogue or the issue of jurisdiction in the context of electronic commerce, please do not hesitate to contact us during the Electronic Commerce and International Jurisdiction Expert Meeting organized by the Hague Conference. If you cannot contact us during the meeting please feel free to leave a message for either of us at the Chateau Laurier where we will both be staying.

 

We look forward to discussing this important issue with you during the meeting.

 

Sincerely,

 

David Fares
Director, Electronic Commerce
USCIB
Tel: (212) 703-5061
Email: dfares@uscib.org

 

Marc Pearl
General Counsel & VP, Government Affairs
ITAA/WITSA
Tel: (703) 522-5055
mpearl@itaa.org

 

JURISDICTION IN THE CONTEXT OF ELECTRONIC COMMERCE

 

The International And Regional Fora Addressing this Issue

 

Completed Work:

 

1.       OECD Guidelines for Consumer Protection in the Context of Electronic Commerce: The OECD Guidelines negotiations lasted for approximately 2 years. During that process there was much debate over the issue of jurisdiction. Some delegations supported the country-of-destination, others the country-of-origin, and yet others focused on the development of online dispute resolution mechanisms. In the end, the negotiations did not result in a definitive position on jurisdiction but rather recognized that e-commerce poses challenges to the existing legal framework on jurisdiction and recommended that consideration be given to whether the existing framework should be modified. [see Appendix 1]

2.       Free Trade Area of the Americas’ Joint Government-Private Sector Committee of Experts on Electronic Commerce: Report with Recommendations to Ministers: The Experts Group stated that e-commerce is subject to the existing legal framework of jurisdiction. However, it called on governments to examine the existing national frameworks and noted that it could be an issue of future work for the group.

3.       World Intellectual Property Organization: WIPO has engaged in several activities with regard to private international law in the digital environment, as applied to copyrights and trademarks. In particular, it has commissioned studies on the copyright issues which include sections pertaining to jurisdiction. These studies can be obtained from the WIPO website. WIPO is currently planning its future work program in this area.

4.       Internet Law and Policy 1999 Annual Conference: In 1999, the ILPF began its focus on the rules for exercising jurisdiction over electronic commerce across national borders. It sponsored an international conference, Jurisdiction: Building Confidence in a Borderless Medium, to create a base line understanding among all stakeholders, including governments, consumer representatives, business and academics. Although participants were not asked to deliver formal conclusions, certain common themes emerged from discussions, including, with respect to cross border consumer transactions, the need for effective, alternative protections. Those common themes from the conference were then presented as a Hearing Statement to the European Commission at its hearings on proposed amendments to the Brussels Treaty on 4-5 November, 1999.

5.       Business and Industry Advisory Committee to the OECD: During the negotiations of the OECD Consumer Protection Guidelines, BIAC, in coordination with the Alliance for Global Business, issued a Discussion Paper on Certain Aspects of Consumer Protection on Global Networks. The Discussion Paper recognized the complexity of the issue of jurisdiction in the context of e-commerce. BIAC recommended that there be an exhaustive review of the issue prior to governments making a definitive pronouncement on the issue. BIAC argued that premature conclusions that do not address practical realities and the unique circumstances of electronic commerce could create significant obstacles to the continued growth of electronic commerce.

6.       International Chamber of Commerce Briefing Note on Jurisdiction and Applicable Law in Electronic Commerce: Similar to the BIAC Discussion Paper, the ICC Briefing Note, recognizing the complexity of the jurisdictional issue in the context of electronic commerce, called for a thorough review of the issue before governments make definitive pronouncements. It too argued that premature conclusions that do not address practical realities and the unique circumstances of electronic commerce could create significant obstacles to the continued growth of electronic commerce. The ICC proposed that the private sector should be given adequate time to assess the market and to develop initiatives, including dispute resolution mechanisms, to address business-to-business and business-to-consumer online disputes.

7.       Alliance for Global Business – Global Action Plan for Electronic Commerce: The AGB Action Plan states that: "Business will work with governments to find solutions to the problems associated with determining the jurisdiction and applicable law in cyberspace. Alternative dispute resolution mechanisms and third-party schemes for compliance with self-regulation are being developed by existing and new types of providers of dispute avoidance and resolution." It also recommends the following government action: "Freedom of contract should be the guiding principal in business-to-business relationships. The international legal community has only just started reviewing the many complex legal issues surrounding applicable law and jurisdiction in cyberspace. Any premature regulation mandating the law and/or forum of the country of destination for consumer transactions could inhibit the growth of electronic commerce. Governments should rely on voluntary business self-regulatory practices and market pressures to develop more flexible and balanced solutions. The use of out-of-court dispute settlement procedures for consumers should be encouraged while maintaining court proceedings as the ultimate solution in case of conflicts."

8.       Global Business Dialogue on Electronic Commerce (GBDe): The GBDe has recommended that governments recognize the principle of freedom of contract in e-commerce disputes and respect agreements concerning choice of law and forum, subject to certain limited exceptions. In the absence of a contractual agreement, the GBDe argues, the country of origin should have jurisdiction over both consumer and business claims arising from e-commerce. In the GBDe’s view, criminal jurisdiction requires further study. The GBDe also favors the development of ADR mechanisms for both b-to-c and b-to-b disputes in e-commerce and urges governments to adopt the New York Convention or make modifications to their legal frameworks to allow easier enforcement of arbitration awards. The GBDe stresses that self-regulation is ordinarily preferable to government regulation and should be given time to develop.

9.       Global Internet Project: The GIP issued a statement entitled "Jurisdiction in Cyberspace" in September 1999. The statement warns against premature, one-size-fits-all solutions to jurisdictional problems in cyberspace. It notes that jurisdictional solutions that are viable in the paper-based world may not always make sense in the online world. It states: "[I]n many cases, they will be technologically impossible and economically unreasonable. Approaches grounded in traditional concepts of jurisdiction, may not always suit the needs of consumers, merchants or governments and may impede the use of e-commerce."

10.   TransAtlantic Business Dialogue: At the Berlin Conference in November, 1999 the TABD cautioned governments to avoid premature action that might lead to conflicting rules on jurisdiction. Moreover, it generally supported the freedom of contract and the country-of-origin. It recommended government-industry cooperation to achieve greater certainty about jurisdictional rules and methods, including country-of-origin analysis and alternative dispute resolution (ADR). Please see Annex 3 for the TABD recommendations.

11.   TransAtlantic Consumers Dialogue: The TACD has recommended that consumers should have recourse at least to the laws and the courts of their home country and called for cooperation among governments in support of legal redress.

12.   Consumers International: Speech by Pamela W.S. Chan, President – September 14, 1999: "…The extent to which this information can be made available would vary, depending on the complexity of the mechanisms that exist in the particular jurisdiction, and how difficult or easy it would be to include adequate information on a trader's website. Ideally, the applicable law for transactions should be the one of the country of the consumer and that the consumer should have recourse in his/her own jurisdiction. At the very least though, I think that a clear statement should be made as to what jurisdiction's laws would apply, in the same way that this information is provided in many written contracts. An easy way for traders to provide more detailed information to their customers, on consumer redress, would be to have a 'hot link' through to the appropriate national consumer organization."

 

Ongoing Activities:

 

1.                   The U.S. Government: The Federal Trade Commission (FTC) and the Department of Commerce (DOC) recently announced it would host a workshop to explore the use of alternative dispute resolution mechanisms for consumer transactions in the borderless online marketplace. The workshop aims to begin an open discussion of how alternative dispute resolution programs may contribute to fostering consumer confidence without unnecessarily burdening business, and to examine the use of alternative dispute resolution as one means of providing transparent, effective, quick and inexpensive redress for consumers engaging in online transactions. The FTC in its ongoing consideration of these issues held a workshop last spring on Jurisdiction in cyberspace.

2.                   The European Union – The Brussels Conventions, et al: The Brussels Convention established rules for the determination of jurisdiction, which were designed (1968) having in mind traditional trade and means of communication. The determination of the jurisdiction for cross border consumer disputes – based on the activity of the parties involved in the transaction – is one of the issues addressed. The European Commission has proposed a revision to the Convention (in the form of a Regulation) that builds upon the existing Convention and, in the case of contracts concluded with consumers, establishes a special regime that excludes the ability of parties to determine the competent jurisdiction by the terms of their contract. The Commission held a hearing on November 4-5, 1999 where it heard reactions from stakeholders on the proposed revision. There was no consensus among the stakeholders on the Commission’s proposal. The European Parliament is currently examining the Commission’s proposal and has expressed concerns about its potential affect on electronic commerce. The Parliament draft report (to be adopted in plenary in March) requests the Commission to defer the adoption of the draft Regulation.

3.                   Joint OECD, Hague, ICC Workshop on Online ADR: The OECD, The Hague Conference and the ICC are co-sponsoring a workshop to outline issues regarding online alternative dispute resolution. This workshop is tentatively scheduled for June 2000.

4.                   Hague Conference on International Private Law: The Hague Conference is in the process of developing a Convention on Jurisdiction and Foreign Judgments in Civil and Criminal Matters. The Hague Conference is holding an E-Commerce Expert’s Group Meeting to discuss the effect of the Draft Convention on E-Commerce in Ottawa, Canada, February 28 – March 1, 2000.

5.                   Global Business Dialogue on E-Commerce: The GBDe has a Working Group on Alternative Dispute Resolution, which will analyze online ADR and provide recommendations to governments.

6.                   International Chamber of Commerce: The ICC Task Force on Jurisdiction and Applicable Law is in the process of drafting a comprehensive statement on this issue which will include a presentation of business requirements both in the context of business-to-business and business-to-consumer transactions. Moreover, the ICC is beginning to analyze its role in the development of an international online dispute resolution mechanism.

7.                   Internet Law and Policy Forum: The ILPF will continue to focus on jurisdictional issues over the coming year and will again sponsor its annual international conference, ILPForum 2000 on this topic. The conference will address the need for approaches to jurisdictional rules rationalized across different areas of the law and explore some areas, which have received limited attention thus far in the international dialogue.

8.                   Information Technology Association of America: ITAA’s IP Counsels Roundtable has been studying and analyzing the issue of Internet/Online Service Provider liability in the context of digital copyright protection for a number of years. In addition to looking at the impact legal, legislative, and regulatory interventions have on E-Commerce, the organization has been a leading advocate of ‘technology solutions.’ It is currently turning its focus onto the broader content control issues and liability in the digital/Internet environment.

9.                   Software and Information Industry Association: The SIIA work program will focus on elements related to the effect of online jurisdiction issues on small and medium sized enterprises, the possible role of new technologies and the need for education. In particular, SIIA will be developing an outreach program for companies using e-commerce to expand their markets to educate them on the legal questions and developments surrounding jurisdiction that includes best practices, education on available technologies to address jurisdiction questions, the inclusion of jurisdiction in the Electronic Commerce Web Resource and a compilation of references to additional public and private resources in the U.S. and elsewhere.

10.               TransAtlantic Business Dialogue: The TABD will continue to evaluate the issue of jurisdiction online in 2000 building upon its current recommendations on the issue.

11.               American Bar Association: The ABA is coordinating "Transnational Issues In Cyberspace: A Project On The Law Relating to Jurisdiction." This Jurisdiction Initiative focuses on jurisdictional and enforcement issues raised by the growth of electronic commerce. The project is committed to describing current law from various national perspectives in a number of substantive legal areas, considering policy implications raised by those laws, and developing suggestions for any necessary changes.

12.               The Electronic Commerce and Consumer Protection Group: The ECCP Group is an industry group aimed at increasing the confidence of consumers who are making purchases online. To this end the companies are in the process of developing guidelines to establish a predictable and stable legal environment in which consumers and sellers can do business on the Internet.

 

ANNEX 1 – RELEVANT PORTIONS OF OECD GUIDELINES

 

(59) VI. DISPUTE RESOLUTION AND REDRESS

 

(60) A. APPLICABLE LAW AND JURISDICTION

 

(61) Business-to-consumer cross-border transactions, whether carried out electronically or otherwise, are subject to the existing framework on applicable law and jurisdiction.

 

(62) Electronic commerce poses challenges to this existing framework. Therefore, consideration should be given to whether the existing framework for applicable law and jurisdiction should be modified, or applied differently, to ensure effective and transparent consumer protection in the context of the continued growth of electronic commerce.

 

(63) In considering whether to modify the existing framework, governments should seek to ensure that the framework provides fairness to consumers and business, facilitates electronic commerce, results in consumers having a level of protection not less than that afforded in other forms of commerce, and provides consumers with meaningful access to fair and timely dispute resolution and redress without undue cost or burden.

 

(65) B. ALTERNATIVE DISPUTE RESOLUTION AND REDRESS

 

(66) Consumers should be provided meaningful access to fair and timely alternative dispute resolution and redress without undue cost or burden.

 

(67) Businesses, consumer representatives and governments should work together to continue to use and develop fair, effective and transparent self-regulatory and other policies and procedures, including alternative dispute resolution mechanisms, to address consumer complaints and to resolve consumer disputes arising from business-to-consumer electronic commerce, with special attention to cross-border transactions.

 

      (i) Businesses and consumer representatives should continue to establish fair, effective and transparent internal mechanisms to address and respond to consumer complaints and difficulties in a fair and timely manner and without undue cost or burden to the consumer. Consumers should be encouraged to take advantage of such mechanisms.

      (ii) Businesses and consumer representatives should continue to establish co-operative self-regulatory programs to address consumer complaints and to assist consumers in resolving disputes arising from business-to-consumer electronic commerce.

      (iii) Businesses, consumer representatives and governments should work together to continue to provide consumers with the option of alternative dispute resolution mechanisms that provide effective resolution of the dispute in a fair and timely manner and without undue cost or burden to the consumer.

      (iv) In implementing the above, businesses, consumer representatives and governments should employ information technologies innovatively and use them to enhance consumer awareness and freedom of choice.

(68) In addition, further study is required to meet the objectives of Section VI at an international level.

 

ANNEX 2 – RELEVANT PORTIONS OF BIAC DISCUSSION PAPER

 

Choice of Law and Forum:

A primary goal of commercial law is to develop legal certainty for transacting parties. The issue of choice of law and choice of forum in the context of electronic commerce is a very complex issue.

 

The Internet offers small and medium enterprises a global marketplace for their goods or services offering consumers greater choice. Such choice could be greatly restricted if businesses are required to comply with a country of destination principle. Compliance with the laws of many different countries would impose tremendous costs on business and would be prohibitively expensive for small and medium-sized enterprises. It would also not offer businesses the certainty they need to offer their goods and services globally via the Internet and may lead them to voluntarily restrict transactions to limited jurisdictions thereby reducing consumer choice. Electronic commerce will not be viable if every online transaction were subject to each set of laws in the jurisdiction of every potential consumer, laws which may subject the transaction to inconsistent regulations. The lack of certainty would be exacerbated if a consumer uses an infomediary to purchase a good or service and pays for that good or service with digital cash. In such a situation, a business would never know what laws and forum it is subjecting itself to.

 

On the other hand, it is understandable that consumers cannot be expected to understand all of the consumer protection policies and laws where online businesses are located.

 

Enforcement of foreign judgments is another complexity. Is a consumer offered transparent and effective protection if they have the benefit of their laws and courts but cannot enforce a judgement against a business located in a foreign jurisdiction? It is arguable that this offers less protection because the consumer may incur significant additional costs to bring an action, the potential judgement of which cannot be enforced.

 

Given these and other complexities, a thorough and exhaustive review of this issue is essential before governments make definitive pronouncements. Premature conclusions that do not address practical realities and the unique circumstances of electronic commerce could create significant obstacles to the continued growth of electronic commerce. The private sector should be given adequate time to review the market and to develop initiatives to address this issue. Such initiatives will take into consideration the demands of the market and the unique circumstances of electronic commerce.

 

ANNEX 3 - TABD BERLIN RECOMMENDATIONS

 

·         Governments/administrations and industry should work to achieve greater certainty about the jurisdictional rules that apply to electronic commerce. Possible jurisdictional methods include country-of-origin analysis and alternative dispute resolution (ADR) mechanisms. Governments/administrations should pass any legislation that may be necessary to authorize and promote such ADR mechanisms in cases involving business entities or consumers.

·         Governmental/administration policies should encourage, or at least not impede, freedom of contract, whereby parties may adopt contract terms mutually agreeable to them for e-commerce as they do in traditional commerce.

·         In the absence of a choice of national forum provision in a contract or in case of a civil claim based on an alleged violation of a non-contractual obligation, the defendant, whether a consumer or a business entity, should be able to choose which court will rule on the case.

·         In the absence of a contractual choice of law, governments/administrations should adopt legal rules that apply the law of the country of establishment of the supplier of services/goods, recognizing that there may be areas such as disputes involving intellectual property rights where exceptions are appropriate.

·         It will be important especially for business-to-consumer trade that the Web site clearly state the supplier/vendors’ country of establishment and inform the consumer of his/her legal rights or that there are other reasonable and equally effective means (if they exist) for the consumer to make informed choices and gain confidence in e-commerce.

·         Governments/administrations should avoid taking premature action on jurisdiction issues that might lead to conflicting rules in the global marketplace.

·         Therefore, Working Group V urges the EC and Council of Ministers to reconsider the draft regulation to transpose the Brussels and Lugano Conventions into European law, exposing e-businesses to litigation in all EU Member States. Decision-makers should enter into a dialogue with consumers and industry representatives to find a well defined solution for consumer contracts, taking into account the legitimate interests of both.

 

ANNEX 4 - INFORMATION REGARDING EXISTING DISPUTE RESOLUTION MECHANISMS

 

Name of Initiative

BBBOnLine Reliability Program and BBBOnline Privacy Program

Objective

BBBOnLine was established to help build consumer trust and confidence in online commerce. The Reliability programs helps assure that a company’s advertising is truthful & accurate, the company commits to delivering the products & services offered and that, if the company cannot resolve a dispute with a consumer, it commits to using a third party arbitration/mediation program such as the Better Business Bureau. BBBOnLine Privacy offers a comprehensive assessment process to measure a company’s ability to stand behind the promises made in its online privacy policy and offers a dispute resolution process for consumer privacy concerns.

Enforcement mechanism(s)

In both the reliability and Privacy programs a company signs a license agreement committing to the principles of the program and the particular resolution process applicable to the program.

Leader(s) initiative

Issuing/
Implementing organisation(s)

BBBOnLine is part of the Council of Better Business Bureaus representing 320 major corporations and 132 local Better Business Bureaus. The local bureaus have over 270 000 business as part of their membership base.

Supporting organisation(s)

 

[expected] Date of issuance / implementation

BBBOnLine Reliability was launched on 30 April 1997
BBBOnLine Privacy was launched on 17 March 1999

Scope

General

Both programs are applicable to all businesses that are able to meet the standards and other criteria of the program.

Sector

BBBOnLine Reliability is applicable to companies located in the United States and Canada. BBBOnLine Privacy is applicable to a company located anywhere if it markets to citizens of the United States or Canada. BBBOnLine is working with organizations in different countries to build co-operative partnerships to address privacy and consumer protection issues.

Geographic

 

Examples of application

The BBBOnLine Reliability Program currently has 3,500 companies participating and new companies are being added at a rate of between 50 and 70 a week. As of this date all disputes have been resolved without a formal arbitration needed. The BBBOnLine Privacy Program has 60 companies approved and about 400 companies in one stage or another of the process.

Participation public sector

BBBOnLine works closely with the US Federal Trade Commission, State Attorney Generals and local law enforcement organisations if a fraudulent or scam type web site is identified. In developing the new Privacy program BBBOnLine worked closely with the Department of Commerce and Federal Trade Commission. The Council of Better Business Bureaus has a long successful history working closely with appropriate government organisations.

For full text/further information consult/contact

Mr Russell Bodoff
Senior Vice President & COO
BBBOnLine Inc.
42 Wilson Boulevard
Arlington, VA 22202
Tel 703 247 9331
Fax 709 276 8112rbodoff@cbbb.bbb.org
URL: www.bbbonline.org

Possible/expected evolution of the initiative

Goal is to partner with other organisations to develop a global approach to building consumer trust and confidence n online commerce.

 

Name of Initiative

CPA WebTrust

Objective

1.       To build trust and confidence in eCommerce by increasing consumer confidence in using the Internet

2.       Helping businesses deliver on their sales promises

Enforcement mechanism(s)

WebTrust involves a full-scope audit of a website by an independent, specially trained CPA, or their equivalents around the world, using the WebTrust Principles and Criteria as a benchmark to determine the soundness of on-line businesses’ activities. Due to the nature of an audit, WebTrust is an effective eCommerce fraud deterrent and a comprehensive eCommerce seal of assurance. All WebTrust audits are performed on site and involve a critical review of online businesses internal control policies and procedures related to eCommerce.

Leader(s) initiative

Issuing/
implementing organisation(s)

American Institute of Certified Public Accountants, Canadian Institute of Chartered Accountants

Supporting organisation(s)

VeriSign, Inc. is a strategic partner of CPA WebTrust and offers state of the art encryption technology to prevent the WebTrust seal from being copied on the Web.

[expected] Date of issuance / implementation

Version 1.0 issued September 1997; Version 1.1 issued April 1999; Version 2.0 issued August 1999

Scope

General

CPA WebTrust entails an independent CPA performing an audit of a website’s (1) business practices and privacy (tests to perform that an online business properly discloses business and privacy disclosures and can demonstrate compliance with those policies over a given time period); (2) transaction integrity (tests to determine that an on-line business can demonstrate a proven history of delivery goods and services at prices it agreed to with online consumers) and (3) information privacy (tests to determine that appropriate security measures are in place (such as firewalls, SSL technology) both during transmission of data online and also once information reaches an on-line business.

Sector

WebTrust is available to all sectors (public and private)

Geographic

WebTrust is currently offered in the United States, Canada, the United Kingdom and Ireland, France, Australia and New Zealand. Plans are underway for future expansion into other European countries and Asia. Certain accounting firms have been granted worldwide licenses to offer WebTrust in any country where they have offices. WebTrust is scalable upwards to meet more rigorous laws or regulations in certain countries. No exceptions or exclusions are ever made to the fundamental WebTrust Principles and Criteria.

Examples of application

WebTrust is currently designed for use in a business to consumer application. The AICPA has recently added WebTrust for Internet Service Providers into the WebTrust family of services. Also expected in the near future are WebTrust for Certificate Authorities and WebTrust for Business to Business applications.

Participation public sector

None

For full text/further information consult/contact

Anthony Pugliese
Director of Assurance Services
Tel 212 596 6083
e-mail: apugliese@aicpa.org
Sheryl Weiner
WebTrust Team Leader
Tel 201 938 3751
e-mail: sweiner@aicpa.org

Possible/expected evolution of the initiative

The AICPA anticipates WebTrust will evolve into the recognized seal of choice by consumers and businesses alike due to the fundamental nature of the program itself. It represents an independent examination by a qualified CPA or their equivalents around the world. WebTrust is an effective self- regulatory model for government due to its inherent fraud detection capabilities and its comprehensive nature.

 

Name of initiative

Cybertribunal

Objective

The establishment of an innovative service for the prevention and resolution of conflicts arising in cyberspace by recourse to electronic mediation and arbitration.

Enforcement mechanism(s)

The market. Cyber-sellers (including any physical or legal person offering products, services or licenses on the Internet) are invited to obtain the CyberTribunal seal and post it on their Websites, thereby committing to submitting any conflict with clients to the mediation process and, if necessary, the CyberTribunal arbitration procedure.

Leader(s) initiative

Issuing/
Implementing organisation(s)

The CyberTribunal is for now hosted at the University of Montreal, Quebec, Canada.

 

Supporting organisation(s)

Ombuds-Online, an online mediation initiative, of the University of Massachussetts, USA.

[expected] Date of issuance /implementation

June4th, 1998

Scope

General

Areas of action are: electronic commerce, competition, copyright, trademark, privacy, freedom of expression and all other type of cases with the exception of cases under criminal law or involving public order (ordre public). Services of arbitration and mediation are offered in English and French, and soon, in Spanish. The CyberTribunal will deal only with conflicts arising in cyberspace, not with conflicts arising in the physical world.

 

Sector

Non sector-specific

 

Geographic

No geographic boundaries: the Internet

Examples of application

The CyberTribunal has dealt, since its launch, with cases involving mainly consumers and cyber-sellers (e-commerce disputes) and with copyright issues (disputes between two individuals concerning the ownership of some electronic materials accessible through a website).

Participation public sector

Sponsored, in part, by the Quebec Government and the Government of Canada

For full text/further information consult/contact

Prof. Karim Benyekhlef
e-mail: karim.benyekhlef@umontreal.ca
URL: www.cybertribunal.org

Possible/expected evolution of the initiative

Setting up partnerships with similar foreign endeavours to provide mediation and arbitration services worldwide on the Internet.

 

Name of Initiative

Digital Signatures for XML

Objective

Build privacy protection and personal information management tools into the infrastructure of the World Wide Web

Enforcement mechanism(s)

P3P is a voluntary technical specification

Leader(s) initiative

Issuing/
implementing organisation(s)

World Wide Web Consortium
Internet Engineering Task Force

Supporting organisation(s)

 

[expected] Date of issuance / implementation

1Q2000

Scope

General

Digital Signatures/Authentication

Sector

 

Geographic

Global

Examples of application

Ability to digitally-sign any document on the Web will enable applications such as electonic checks, web-based contracting, secure access to web pages, and trusted privacy policies through W3C’s Platform for Privacy Preferences (P3P).

Participation public sector

 

For full text/further information consult/contact

Daniel J. Weitzner
Technology and Society Domain Leader
e-mail: djweitzner@w3.org
URL: http://www.w3.org/Signature/

Possible/expected evolution of the initiative

 

 

Name of Initiative

European Advertising Standards Alliance (EASA): Cross-Border Complaints System

Objective

The key objectives of the EASA’s development of self-regulation for the Internet are:

a.       To provide effective channels for the resolution of cross border complaints about advertisements;

b.       To develop high Internet standards through best advertising practice to give consumers confidence and trust in the advertisements they access;

c.       To give national, European and International Governments, consumer bodies and opinion formers confidence in the advertising industry’s self-regulatory systems to keep the need for legislation to a minimum.

Enforcement mechanism(s)

National self-regulatory systems

Leader(s) initiative

Issuing/
implementing organisation(s)

EASA Internet Working Group/ National Self-regulatory Organisations

Supporting organisation(s)

EASA Members – Self-regulatory Organisations

[expected] Date of issuance / implementation

(July 1999 – issued to advertising industry bodies for consultation/feedback) Issuance expected in 2000

Scope

General

National self-regulatory codes/principles. The existing national self-regulatory systems for advertising in the EASA member countries

Sector

 

Geographic

The EASA has 27 members from 24 countries, and comprises of 22 European countries, including all European Union (EU) Member States, as well as two corresponding members in South Africa and New Zealand. The national codes/principles are based on those drawn up by ICC.

Examples of application

The EASA established a cross border complaint procedure in 1992, and this has now been extended to co-ordinate consumer complaints about the content of electronic advertisements. The procedure is based on the country of origin principle, as prescribed in the EU Television Without Frontiers (Broadcasting) Directive (97/36/EC) and applies to complaints from one member country about advertisements that originate in another. These procedures are applicable for Internet advertising as self-regulation, backed up where appropriate by nationally based legislation, is seen to be the most appropriate and effective measure to provide protection for consumers while enabling commerce to flourish. To date the cross-border complaints system has closed a number of Internet complaints.

Participation public sector

National organisations and EU

For full text/further information consult/contact

Phil Murphy
Project Co-ordinator
European Advertising Standards Alliance
10A Rue de la Pépinière
B - 1000 Brussels Belgium
Tel (+32 2) 513 78 06
Fax (+32 2) 513 28 61
e-mail: library@easa-alliance.org

Possible/expected evolution of the initiative

This will contribute to a wider evaluation of internet advertising and cross-border complaints handling with the advertising industry, and to the stimulation of discussions that will aid our understanding and further develop the self-regulation of Internet advertising on a global level.

 

Name of Initiative

SILEC (Inter-American Society for the Freedom of Commercial Speech)

Objective

To defend freedom of commercial speech and to fight for recognition of the consumer's right to be fully informed regarding all lawful products throughout Latin America. Three main lines of action: (1) communication of the doctrine of freedom of commercial speech; (2) promotion of advertising self-regulation; (3) dialogue with legislators and government.

Enforcement mechanism(s)

Voluntary acceptance of our guidelines, norms and recommendation by the leaders and other members of the advertising industry. We work through bi-annual regional assemblies, symposia, seminars, conferences, alliances, meetings with government authorities, publications, etc. We strongly promote industry self-regulation through a council formed by advertisers, advertising agencies and the media, using the ICC code of ethics as a guide. Finally, due to the increase of globalization of advertising and growth in Internet usage and e-commerce throughout the region, we are also trying to create a Regional Self-Regulation Alliance with the objective of improving and/or promoting self-regulation and develop a complaint system for cross-border advertising.

Leader(s) initiative

Issuing/
implementing organisation(s)

SILEC is formed by 14 Latin American countries' advertisers, advertising agencies and the media, represented by their trade associations. Working with trade associations allows us to act quickly and efficiently.

Supporting organisation(s)

Our efforts are also supported by – among others – the International Advertising Association (IAA).

[expected] Date of issuance / implementation

SILEC was founded in Caracas, Venezuela on August 9, 1992

Scope

General

Business-to-Business action / observations. However, the implementation of self-regulation is aimed at giving consumers confidence in advertising and reducing incentives for government regulation.

Sector

The advertising industry

Geographic

Latin American region

Examples of application

SILEC has caused the number of self-regulation systems in the region to double from 4 to 8 since its inception. Awareness of the value and importance of self-regulation has been significantly heightened among Latin American industry leaders. Governments in the region have changed their attitude toward self-regulation for advertising as a possible substitute to legislative restrictions. We have achieved higher ethical standards among professionals leading the advertising and communications industry. The initiative has also prevented the enactment of laws that would restrict or prohibit advertising for lawful products.

Participation public sector

None

For full text/further information consult/contact

José M. Gonzalez-Llorente
PMB 406
1172 South Dixie Highway
Coral Gables, Fl 33146-2918
USA
Fax 305 661 8017
e-mail: jgllorente@aom.com
URL: A HREF="http://www.silecinternacional.com"www.silecinternacional.com

Possible/expected evolution of the initiative

Affiliation of the remaining 5 Latin American countries. Creation of a culture of freedom of commercial speech, ethics and responsibility in advertising in Latin American markets. The conversion of Latin America into a self-regulated region in the next 5 years. The education of new generations of advertising professionals on the subject of ethics and self-regulation. The inception of a Latin American Self-Regulation Alliance to improve existing self-regulation, promote it in the markets where this practice does not exist, and develop a complaint system for cross-border advertising. And as a result of all that, avoid unwarranted government regulation.

 

Name of Initiative

TRUSTe

Objective

Building consumer trust and confidence in e-commerce by empowering users to decide how their personally identifiable information will be used by the Web site. To educate site developers on the importance of demonstrating the site’s commitment to addressing online privacy to both consumers and governments.

Enforcement mechanism(s)

Sites that choose to become licensees of the TRUSTe program must sign a one-year contractually binding licensing agreement. The agreement must be renewed each year. The agreement stipulates conditions by which the licensee must adhere, including privacy principles and escalation procedures. The site must demonstrate, to TRUSTe’s satisfaction, compliance with the TRUSTe privacy principles prior to obtaining the TRUSTe seal or trustmark. Over the course of the contract, subsequent reviews will be conducted by TRUSTe to ensure the site is in compliance with TRUSTe’s privacy principles and their own stated privacy practices. A variety of mechanisms including offsite surfing of the site and "seeding" technologies are also used.
The TRUSTe program also includes a consumer dispute resolution where consumers can voice concerns about TRUSTe licensees should their interactions with the licensee prove unsatisfactory. Complaints generated by either a consumer or TRUSTe follow a progressive escalation process that is dictated by the licensing agreement. Sites have agreed, by signing the contract, to cooperate with TRUSTe’s review and escalation process. TRUSTe also offers its special Children's privacy Seal, which has heightened requireme,y for websites directed at children under 13.

Leader(s) initiative

Issuing/
implementing organisation(s)

TRUSTe—the digital industry’s only non-profit, self-regulatory effort focusing exclusively on individual privacy rights online.

Supporting organisation(s)

Founding Organisations: Electronic Frontier Foundation, CommerceNet Consortium

[expected] Date of issuance / implementation

Commercial launch of the program: June 1997

Scope

General

Business-to-consumer primarily, business-to-business secondarily

Sector

All

Geographic

US, with presence established in Europe and Asia

Examples of application

# of licensees: 850 sites as of July 15, 1999
Influence of licensees: 15 of top 20 most visited sites, including all major Internet portals are TRUSTe licensees. It is estimated that TRUSTe licensees reach 90% of US Internet users.

Participation public sector

TRUSTe has participated at a number of US government-sponsored forums including the FTC Privacy Workshop, the Department of Commerce Privacy Forum and privacy workshops. In addition, TRUSTe has testified at congressional hearings and has presented its program internationally to OECD-led privacy workshops.

For full text/further information consult/contact

URL: www.truste.org
Paula J. Bruening
e-mail: Pbruening@truste.org
1816 S St Nw
Washington DC 20009
Tel 202 484 1900
Tel 408 342 1950

Possible/expected evolution of the initiative

The TRUSTe program has evolved in the 2 years since its commercial launch. It is anticipated that further developments and changes will occur as market and government forces dictate. Global expansion of the program is planned in 1999.





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