E-Commerce

E-Commerce is a transaction between a buyer and seller where the offer, acceptance, order placement, fulfillment, tracking and reporting of the transaction is done totally, or predominantly, over an electronic network (the internet). E-Commerce differs in two significant ways from other commerce: first, there is little or no human involvement; and second, there are often no, or few, intermediaries between the buyer and the seller.

Up to twenty years ago, there was little commerce that did not contain a human interchange as well as intermediaries between the buyer and seller. A purchase made out of the Sears-Roebuck catalog was an early exception. Catalog sales made over the telephone was another exception, although in those situations a human being was usually on the other end of the telephone line and the transaction was not as impersonal and dehumanized as an e-commerce transaction over the internet.

Because of the absence of traditional contract 'events' in e-commerce, a number of important issues surrounding an e-commerce transaction have arisen. The following are of particular interest:

1. How and when a transaction becomes legally binding. (See "Electronic Signatures").

2. How can the method of paying for products purchased over the internet be protected.

3. What courts have jurisdiction over a dispute, now that e-commerce extends to every place on the planet. (See "Jurisdiction On The Internet")

4. What privacy rights do individuals have who do business on, or simply surf, the internet. (See "Privacy And The Internet")

5. What is the impact of the European Union regulations on e-commerce and privacy issues. See "The Impact Of The European Union On The Web" in this website.

Governments have begun the process of trying to develop policies and laws dealing with e-commerce. However, the attitudes of European countries and the United States differ greatly. Americans value the First Amendment and freedom of information (with the exception of pornography and obscenity); the Europeans value privacy, and government regulation over freedom.

The United States has taken a laissez-faire attitude toward e-commerce issues. There has always been a reluctance on the part of Americans to enter into treaties that might affect business in the United States. For example, the Berne Convention, one of the cornerstones of international intellectual property rights, was first signed by ten countries in 1886. The United States did not join the treaty until 1988, 102 years later. Part of this disdain for international cooperation came from the dominant economic position America has held for so many years. Part of this comes from arrogance and from a lack of understanding of how international the world has become.

In 1997 the Clinton administration published a white paper entitled "The Framework For Global Electronic Commerce", which is sometimes referred to as the Magaziner Report after a former advisor to the President named Ira Magaziner. The report made suggestions on how to deal with e-commerce issues but is not binding on anyone and Congress has ignored it while proposing laws of their own.

Meanwhile, the EU has been issuing directives on privacy and e-commerce that are having a significant impact on e-commerce in the United States. See "The Impact Of The European Union On The Web" in this website.

Law Offices of Douglas Clark Hollmann

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