1. READING (You Should at Least Do 20 Hours of Reading for This!)

TUTORIAL ONE Copyright, Content, Intermediary Liability

1. READING (You should at least do 20 hours of reading for this!) Copyright

 Christopher Millard “Copyright” Chapter 5 in Chris Reed & John Angel Computer Law, Oxford University Press 5th Edition 2003 OR  Hector MacQueen “Copyright and the Internet” Chapter 9 in Charlotte Waelde/Lilian Edwards Law & the Internet Hart, 2000  David A Rice, "Copyright as Talisman: Expanding Property in Digital Works" 16 International Review of Law Computers and Technology 113-132 (2002)  Colin Nasir, “Taming the Beast of File-Sharing- Legal and Technological Solutions to the Problem of Copyright Infringement over the Internet” Parts 1-3 in Entertainment Law Review 2005 16(3), 16 (4) and 16 (5) (Westlaw, UK Journals)  Muir/Stokes, Cuckoo Eggs, Worms and Webspiders…, EBL 4/9 (Photocopy)  Brett Glass, What does DRM really mean? (Photocopy)  Gillian Haggart Copyright Regulations 2003: a Review EBL 6/1 (Photocopy)  Catriona Smith & Amanda Maclachlan Saddling Up for the Database Rights Race EBL 7/2 (Photocopy)  Jonathan Band & Emmalena Quesada Peer-to-Peer the Supreme Court Showdown EBL 7/6 (Photocopy)

Content Regulation

 Chris Reed, Internet Law, Chapter 4  Yaman Akdeniz and Nadine Strossen “Sexually oriented expression” Chapter 9 and Yaman Akdeniz and Horton Rogers “Defamation on the internet” Chapter 13 in Akdeniz, Walker, Wall The Internet, Law and Society, Longman 2000 OR  Lilian Edwards Chapters 11 (Defamation and the Internet) and Chapter 12 (Pornography on the Internet) in Charlotte Waelde/Lilian Edwards Law & the Internet Hart, 2000  Scott Vine, Settling the COPA Debate-Is Filtering the Way Forward? EBL 6/7 (Photocopy)

Intermediary Liability

 Chris Reed, Internet Law, Chapter 4  Julia Hörnle, "Internet Service Provider Liability- Let's (not) play piggy in the middle", 7 Communications Law 85-88 (2002) (WebCT)  Rosa Julià-Barcelò Intermediary Liability in the E-commerce Directive: So far so good, but it's not enough, Computer Law and Security Report, Vol.16, No.4, 2000  Victoria McEvedy, The DMCA and the E-commerce Directive, 24 (2) European Intellectual Property Review 2002, pp.65-73 (Westlaw)*

2. QUESTIONS

1. What types of content cause problems on the Internet? 2. Why does the Internet pose problems for copyright? 3. How do the DMCA and the European Copyright Directive provide protection for copyright? 4. What are copyright protection mechanisms or digital rights management mean? 5. How can these protection mechanism clash with fair use? 6. What is peer-to-peer file sharing and how does this lead to copyright infringement? 7. Please briefly outline the Napster, the MGM v Grokster cases. 8. Please outline the law of pornography and child pornography in the UK? 9. Why is it so difficult to enforce content regulation on the Internet? 10. Please outline the three Yahoo cases (two French, one Californian) 11. Why is online defamation a big issue? 12. Please describe the Godfrey v Demon case 13. Please briefly describe the provisions in the DMCA regarding ISP liability (US- copyright). 14. What is the position on ISP liability in areas of law other than copyright- Communications Decency Act? 15. What is the position on ISP liability in the E-commerce Directive? 16. Please compare the position on ISP liability in the E-commerce Directive with that in the DMCA? 17. What is notice and take down? 18. What constitutes notice in under the E-commerce Directive? Imagine the following scenario: someone is aggrieved by a defamatory statement on a newsgroup and sends an email to the ISPs hosting the newsgroup- who should he send the notice to? How should the notice identify the material? How should the notice identify the location of the material? Should the notice be signed? Etc.

3. EXAM QUESTION

1. Tango Ltd, a UK company, offers Internet access services, hosting services and other services. It is concerned to market its services in a family friendly way and wonders whether it could reassure parents in any way to ensure that their children do not visit sites featuring pornography or violence or unacceptable language.

Whizzbuzz is an electronic weekly magazine containing celebrity gossip. Individuals send contributions to this journal by e-mail to Gilbert who edits and owns Whizzbuzz. Tango Ltd hosts Gilbert's e-mail account and the website featuring Whizzbuzz. An internationally known British actor resident in California claims to have been defamed in Whizzbuzz and threatens to sue Tango Ltd for damages. Gilbert has signed an indemnity agreement with Tango Ltd but he is resident in France, is unemployed and has no substantial assets.

Furthermore, Tango Ltd has received a complaint from a weekly hard copy magazine "Celeb News" that large amounts of its recent issues have been copied and made available in Whizzbuzz.

Tango Ltd was recently asked by the French and German authorities to block access for French and German users to certain websites selling Nazi memorabilia. These websites, which are hosted by Tango Ltd., are maintained by various individuals in the UK where the sale of the items in question is no criminal offence.

Advise Tango Ltd.

2. Internet Service Providers (ISPs) face many uncertainties about the extent of their liability for illegal content hosted by them and for links to illegal content from webpages hosted or controlled by them. They may be confronted with the dilemma of liability whether or not they take illegal material down. The situation in the UK (and the EU) could be improved by adopting the solutions found in the US Digital Millenium Copyright Act and the Communications Decency Act."

Compare and contrast the legal status quo on ISP liability with regard to hosting and linking in the EU and the US. Argue for what you think is the most appropriate solution.

3. Ralph and Judy decide to promote new music by establishing a MP3 file sharing system. They set up a website using free webspace offered by UK ISP Pinhead.net. Ralph and Judy make this system available for free- they do not benefit from it commercially in any way.

The file sharing system works as follows. Users must first download a freeware program from the Ralph and Judy website and register on that website. When registering, they must include the details of the MP3 song files, which they intend to offer on the file sharing system.

When a user then searches for a specific song title or artist, the program connects to the Ralph and Judy website, which incorporates an indexed list of all the MP3 files made available by other users for download. The system locates the search term in file names in this index, and ascertains whether the user(s) making it available is/are currently online. The results of this search are then returned to the user. This information enables the user to establish a peer to peer connection with the user(s) making the MP3 file available. Thus, downloading occurs on a strictly peer to peer basis – the MP3 files are not available from the Ralph and Judy website and at no time do these MP3 files actually pass through the Pinhead.net server. Three months after setting up the site, Ralph and Judy have an argument. Judy continues the existing MP3 file sharing system by herself. Ralph sets up his own MP3 file sharing system.

Ralph's website also provides an MP3 file sharing service, hosted by Pinhead.net. However, this service operates in a completely different way. Ralph's website does not make available a search of an index of the file names. The software users download from Ralph's website enables the users to search for file names directly on the databases of other users- thus the search is not processed through Ralph's website or the Pinhead.net server. The only contact that the users have with the central Pinhead.net server is that Ralph sends out emails from time to time with a list of the "top tens" users should "listen out for".

Ralph’s website also contains a page of hypertextlinks to star interviews, reviews and information on other websites. These links are deep-links bypassing the homepage of the websites concerned. To make it easy to return to his website, Ralph frames the information on the other websites with his own website. Thus when a link is followed, the information is displayed inside a frame, surrounded by the various buttons and links within Ralph’s site.

Please advise Ralph and Judy on the potential liability they could face as a result of these activities. TUTORIAL TWO Regulation, Internet Governance, Domain Names & Internet Crime

1. READING (Please do some 20 hours of Reading or so-you should read all of the following!)

REGULATION  Hörnle, Julia “Global Regulation of Internet Transactions” Chapter 18 in Encyclopedia of E-commerce Law, Sweet & Maxwell Looseleaf (WebCT)  Lessig, Lawrence, "The Law of the Horse: What Cyberlaw Might Teach", 113 Harvard Law Review 501 (1999) (Westlaw)  Michael Froomkin, "Form and Substance in Cyberspace" 6 Journal of Small and Emerging Business Law 93 (2002) (Westlaw)  Jose MAE Caral, “Lessons from ICANN-is self-regulation of the internet fundamentally flawed?” 2004 12 (1) International Journal of Law and Information Technology 1-31 (Athens online)

DOMAIN NAMES  Stephen Ware, 'Domain Name Arbitration in the Arbitration Law Context: Consent to and Fairness in the UDRP', 6 Journal of Small and Emerging Business Law Spring 2002, pp.129-165 (36 pages)  Douglas Hancock, 'An Assessment of ICANN's Mandatory Uniform Dispute Resolution Policy in Resolving Disputes over Domain Names', 3 Journal of Information Law Technology 2001, available online from: http://elj.warwick.ac.uk/jilt/01-3/hancock.html  John Olsen “Domain Names” Chapter 9 in the Encyclopedia of E-commerce Law, Sweet & Maxwell Looseleaf OR  Chris Reed, Internet Law, Chapter 3 OR  Charlotte Waelde/Lilian Edwards Law & the Internet Hart, 2000, Chapters 6 and 7

INTERNET CRIME  Ian Walden “Computer Crime”, Chapter 8 in Chris Reed & John Angel Computer Law, Oxford University Press 5th Edition 2003

2. QUESTIONS

1. Why does the Internet pose a challenge for regulators or what is it about the nature of the Internet that makes it so difficult to regulate? 2. What basic information conflicts are there on the Internet? 3. How can the internet be regulated- how can states harmonise and enforce their laws? 4. Where can laws, which are infringed on the Internet be enforced and how? 5. What does the concept of regulatory arbitrage mean? 6. What is self-regulation? 7. Do you think self-regulation is effective? 8. What role does technology play in the context of regulation? 9. Why is it so difficult to harmonise laws? 10. Please give an examples of convergence of laws applying to the Internet 11. What is meant by accidental convergence? 12. Please describe the country of origin rule contained in the E-commerce Directive. 13. Do you think country of origin rule is the solution to all regulatory conflicts on an international level? 14. What is the role of ICANN? How can ICANN be criticised? 15. What is the domain name system and how does it work? 16. What are top-level domain names? 17. What is a trademark and how are trademarks protected? 18. How can trademarks and domain names clash? 19. What is a metatag? 20. How can trademarks and metatags clash? 21. Please explain briefly how the UDRP works? 22. What is reverse domain name high-jacking (have a look at the ICANN website)? 23. Imagine the following scenario: a company has registered a trademark in 2000 and wishes to claim against a company who has registered the name as a top-level generic domain in 1999- what would you advise? 24. Can UDRP decisions be appealed? If so, how? 25. What types of internet crimes are there and how are they committed? 26. How are they regulated? Please make reference to the Computer Misuse Act and the Cybercrime Convention 27. How can a crime instigated in country A be enforced in country B, where it takes effect? Please explain by way of an example.

3. EXAM QUESTIONS (Discussed in the Tutorial)

1. “A balanced regulation of the Internet will depend as much on the technology and the behaviour of service providers themselves as on individual governments and national regulatory authorities.”

Discuss this statement, giving examples to support your arguments.

2. "Regulators should abstain from even further regulating the Internet- a plurality of technologies developed on the Internet will take balance conflicting interests. Regulation by nation states only leads to uncertainty and confusion and can therefore be unfair."

Discuss this statement, giving examples to support your argument (here is will have been useful if you have read the Lessig articles). 3. "Paris" is the trading name of a Europe-wide operating online job agency whose registered office is in England. On its website at "www.paris.com" it offers general career advice, legal information for employees and a database of job advertisements. "Paris" generates its income from charging a fee to the advertising employers and from placing advertising banners on its home page (but on no other pages).

The tourist board of Paris (owned and operated by the city of Paris) has demanded the transfer of the domain name "www.paris.com" from the "Paris" job agency. It wishes to provide tourist information under that address. The job agency has traded offline under the "Paris" name for the last twenty-five years. However it has no registered trade mark in the name.

A disgruntled job-seeker has registered a website "www.parissucks.com" on which he complains about the business practices of "Paris" (such as lack of support, low wages for the jobs offered etc). “Paris” cannot point to any of his allegations as being definitely untrue.

A competitor "Jobs on the Net" operates a website also offering job advertisements. However, the source of its advertisements is not the employers but other online job agencies. "Jobs on the Net" essentially operates a search engine, which finds and automatically links to the job advertisements of other agencies. Among others, "Jobs on the Net" deep links directly to the job advertisements of the "Paris" website, bypassing the "Paris" homepage. "Jobs on the Net" have also copied on their website one of the animated logos used by "Paris" on its website. "Paris" has registered the logo as a Community Trademark.

Finally, "Paris" publishes so-called "success stories" on its websites where it describes true profiles of individual job seekers and the kind of jobs they found through the "Paris" database. It does not mention the names of the individuals, but it mentions such details as their age, details of their education and previous experience. "Paris" says it has not obtained the individuals' consent to this publication since "it does not identify them".

Advise "Paris" in respect of its on-line activities, ignoring any regulatory issues applying specifically to job agencies.

4. Brent is the legal officer of the Californian Music Recording Industry Association (CMRIA). One of his responsibilities is to implement appropriate measures to prevent the exchange of copyright-infringing MP3 music files by using decentralised networking software (such as Kaaza). For this purpose, Brent makes 'cuckoos eggs' available across the network. These ‘cuckoo eggs’ appear from their labelling to be MP3s of well-known songs, however, when played the listener hears only random noises, such as radio static. Recently he has decided to take this one step further: he has also made available MP3 files containing a worm which substantially slows down the receiving user's computer. Users affected by the cuckoo eggs and the worms are now threatening to take legal action against Brent and CMRIA. CMRIA has recently lost its Uniform Domain Name Dispute Resolution (UDRP) administrative procedure against the Connecticut Mumps, Measles and Rubella Inoculation Association (the Association) which registered the domain names CMRIA.net and CMRIA.org in 1998. Brent tells you that CMRIA registered a US federal trademark in the name 'CMRIA' in 1999. He tells you that he wishes to 'defend CMRIA's trademark rights by legal action' and that he wants to 'have that appalling decision overturned'.

The Association is a non-profit corporation headquartered in Connecticut. Its domain names resolve to a website containing information about the benefits of mumps, measles and rubella vaccination. The website also contains free software for downloading. Furthermore, the website allows users to register to receive a monthly bulletin and to participate in a discussion forum. About fifty residents of California have registered with the website and 30 of them are actively participating in the discussion forum. The website also contains a special feature on the controversial measles and rubella vaccinations in Californian schools. TUTORIAL THREE Online Contracting, Webvertising, Electronic Payment, Electronic Signatures & Tax

1. READING

Online Contracting

 Andrew Murray “Entering into Contracts Electronically: The Real www” Chapter 3 in Charlotte Waelde/Lilian Edwards Law & the Internet Hart, 2000 OR  Rafi Azim-Khan “Contracting Online” Chapter 1.2 (only 2.1 and 2.2) in the Encyclopedia of E-commerce Law, Sweet & Maxwell Looseleaf  Chris Reed Internet Law Chapter 6

Webvertising

 James Pond The Legal Risks of Webvertising Chapter 6 in the Osborne Clarke Practical Guide OR  Brinsley Dresden Webvertising Chapter 5 in the Encyclopedia of E-commerce Law, Sweet & Maxwell Looseleaf (Photocopy)*  Julia Hörnle "Online pharmacies-at the borderline of legality?" 6 Electronic Business Law 6-9 (July 2004) (WebCT)*  Simon Shooter Website Content and the FSMA 2000 EBL April 2002 (Photocopy)*

Electronic Payment, Electronic Signatures & Tax

 Chris Reed What is a Signature? JILT 2000 http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_3/reed/  Lorna Brazell Electronic Signatures Chapter 10 in the Encyclopedia of E-commerce Law, Sweet & Maxwell Looseleaf OR  Chris Reed “On the Internet, nobody knows you’re a dog: identity and identification” Chapter 5 of Internet Law OR  Martin Hogg “Secrecy and Signatures” Chapter 3 in Charlotte Waelde/Lilian Edwards Law & the Internet Hart, 2000  Mathias Siems, "The EU Directives on Electronic Signatures- A Worldwide Model or a Fruitless Attempt to Regulate the Future?"16 International Review of Law Computers and Technology 7-22 (2002) OR  Stephen Mason, "Electronic Signatures-Evidence", 18 Computer Law and Security Report (2002), pp.175-180 OR  Christina Spyrelli, "Electronic Signatures- A Transatalantic Bridge?" 2002 JILT Issue 2, http://elj.warwick.ac.uk/jilt/02-2  Saul Miller “Payment in the Online World” Chapter 4 in Charlotte Waelde/Lilian Edwards Law & the Internet Hart, 2000* OR  Laura Edgar “Electronic Payment” Chapter 7 in Hörnle/Walden E-commerce Law and Practice in Europe Woodhead 2000 (WebCT)*  Graham Roe “From Bricks to Clicks: Taxation” Chapter 9 in the in the Osborne Clarke Practical Guide OR  Trefor John “Taxation of Electronic Commerce” Chapter 7 in in the Encyclopedia of E-commerce Law, Sweet & Maxwell Looseleaf  Jonathan Nugent “Consumer & Regulatory Law” Chapter 4 in the Encyclopedia of E- commerce Law, Sweet & Maxwell Looseleaf*  Paula Staunton Chapter 2.7, 2.8 in the in the Osborne Clarke Practical Guide*

2. QUESTIONS 1. What legal mechanisms govern the regulation of advertising in the UK? 2. What are the most important pieces of legislation? 3. How is advertising law enforced? 4. What are the issues in relation to cross-border advertising, from the viewpoint of the advertisers and the regulator? 5. Please explain the country of origin rule and how advertising regulation may conflict with the freedom to provide cross-border services in the EU? 6. What about global cross-border regulation? 7. Where are contracts made through a webform formed? 8. How are contracts made through email formed? 9. Can an electronic agent conclude a contract? 10. Please explain the postal rule and how it applies to online contracts? 11. How do formal requirements apply to online contracts? 12. What has the UNCITRAL Model Law on E-commerce and E-signatures to say in this respect?

3. EXAM QUESTION

1. DocNorris NV is a Dutch company, which runs a licensed pharmacy on premises in Arnheim, Netherlands. It also operates an online pharmacy through a website. The website is multi-lingual (Dutch, English, French and German) and allows users to order cosmetics, prescription and non-prescription medicines by filling in a webform and paying by credit card. The medicines are delivered to the customer's address by post or courier in discreet and small packages.

For prescription medicines, DocNorris requests that a doctor's prescription is sent by post or courier in hardcopy form before it can send the medicines. For all other medicines no formalities are required. Customers can send an email to [email protected] to ask questions about any product. However it usually takes DocNorris about a week to answer any query and some emails are not replied to. Some email replies are automated (based on a software keyword search).

As part of the new marketing campaign DocNorris has included testimonials on its website by people having used non-pharmaceutical products, such as cosmetics and weight-loss products. Some testimonials are invented by DocNorris, others are statements by actual customers.

For the real testimonials DocNorris has included the name and town of the person making the statement.

Furthermore the website states that DocNorris does not accept any returns or exchanges of medicines and will not refund any money to customers who have received delivery of the medicines ordered.

DocNorris is concerned about UK regulation and enforcement. In relation to the facts given above, please advise DocNorris on

(i) Whether English law applies AND (ii) what provisions of English law and self-regulatory codes DocNorris possibly infringes (please answer this part of the question even if you said above that English law does not apply- assume that English law applies) AND (iii) which enforcement body/bodies could take action against DocNorris AND (iv) what this action would consist of.

2. RentaPorsche Ltd is a car-hire company, based in Glasgow, Manchester and London, specialising in the rental of expensive sports cars UK wide. Cars can only be rented via the RentaPorsche website by completing a registration form and entering credit card details. Customers can view and download their rental agreements from the RentaPorsche website. In case of queries or complaints, customers must call a premium telephone line ('calls cost 99p per minute'). The website does not mention a postal or email address for queries or complaints.

On opening the home page of the RentaPorsche website, a viewer sees a pop-up window, mentioning fantastic offers, such as "rent a Bentley for a week for only £80- unlimited mileage". However, when proceeding to the "Book now" section of the website, these offers do not seem to be available.

At some point last month, because of a programming mistake, the booking form stated that a week's rental of a Ferrari only cost £7 (instead of £700) and £7 was the amount that customers' credit cards were charged. Each customer was also sent an email, confirming the car and hire dates but silent on the hire price. When customers came to collect their cars, RentaPorsche refused to hire the cars out on these terms.

RentaPorsche is planning to diversify its activities and is planning to introduce a Porsch Credit Card, available to regular users of RentaPorsche car hire. In order to assess whether there is sufficient demand for such a credit card, they have included a link on the homepage of the car hire website. This link pictures the image of the Porsch Credit Card and announces "out soon- your posh Porsch Credit Card". When clicking on the link viewers are taken to a page giving more information about the Porsch Credit Card.

The homepage also contains several pictures of sports cars. All of these pictures have been incorporated into the homepage by external links (inline links) from the websites of the various sports car manufacturers. When consumers click on these pictures they are taken to the webpages of the car manufacturer.

The UK Consumer Association has received many complaints against RentaPorsche and has now decided to take action against RentaPorsche. You have just joined their "Action for Consumers" team and are asked to advise on all legal aspects of the RentaPorsche file, including different enforcement mechanisms.

3. Two entrepreneurs, Jack and Jill, are intrigued by the possibilities that e-money offers, in particular the potential for anonymous purchasing. They feel that there is a real gap in the market for this type of payment method and would like to set up an e-money scheme. Jack and Jill plan to call this e-money smartcard the ‘Boyster Card’. Jack and Jill are planning to run this business from their home in London.

They have managed to arrange an 800,000 euro loan to cover the costs of setting up the scheme. However the repayments are high and they would need to ensure that the scheme was profitable within a relatively short time. Although a financial institution has approached them to discuss jointly setting up the scheme they are reluctant to go down this route as they are worried about the onerous regulations which apply to financial institutions.

With the aim of keeping the costs of the scheme down they are considering allowing other companies to use the Boyster Card as a payment mechanism for the goods and services provided by these companies. They wonder whether they could reach some agreement with one of the main supermarkets to run their loyalty card scheme on the Boyster Card.

Finally they are wary about any liability they might incur from misuse of the Boyster Card. They are seeking advice on how they could limit any claims against them.

Jack and Jill wonder whether they could include a term in the contract with their customers (the users of the Boyster Card) that all disputes should be solved by the online arbitration procedure provided by the American Arbitration Association. They wonder whether it is possible to prevent consumers from going to court.

Please advise Jack and Jill on the legal issues they need to consider when setting up the scheme. TUTORIAL FOUR Jurisdiction & Applicable Law, Dispute Resolution and Data Protection

1. READING

 Julia Hörnle First Chapter of my PhD Thesis ;-) on WebCT  Julia Hörnle, "Private International Law and E-finance: the European Perspective" 8 The EDI Law Review 209-229 (2001) (on WebCT)  A. M. Susman, "International Electronic Trading: Some Legal Issues" 10 Computers and Law 29-30 (February/ March 2000) (Photocopy)  Lorna Gillies, "A Review of the New Jurisdiction Rules for Electronic Consumer Contracts Within the EU" JILT [2001] available at http://elj.warwick.ac.uk/jilt/01- 1/gillies.html  Michael Geist, "Is There a There There? Towards Greater Certainty for Internet Jurisdiction" 16 Berkeley Technology Law Journal 1345-1407 (Fall 2001) (Westlaw)*  Gerald Ferrera, Stephen Lichtenstein and others, Cyberlaw Text and Cases (West 2001) Chapter 2 (Photocopy)  Julia Hörnle “Online Dispute Resolution” Chapter in Tackaberry & Marriott, Bernstein’s Handbook of Arbitration and Dispute Resolution Practice Sweet & Maxwell 2004 (WebCT)  Ian Walden Data Protection Chapter 11 in in Chris Reed & John Angel Computer Law, Oxford University Press 5th Edition 2003 OR  Andrew Charlesworth Data Privacy in Cyberspace Chapter 5 in Charlotte Waelde/Lilian Edwards Law & the Internet Hart, 2000  Akdeniz, Yaman, New Privacy Concerns: ISPs, Crime Prevention and Consumers Rights, International Review of Law Computers & Technology, Vol.14, No1, pp.55- 61,2000

2. QUESTIONS

1. When does the Brussels Convention/ Council Regulation EC/44/2001 apply? 2. Which rules do the courts of EU/EEA countries apply when the Brussels Convention/Regulation does not apply? 3. Under what circumstances can parties choose which courts are to have jurisdiction? 4. What are the rules on jurisdiction in consumer contract cases? 5. If there is no express choice, how do you determine jurisdiction under the European rules in contract cases? 6. What are the rules on jurisdiction in tort cases? 7. Please summarise the following cases: Bier v Mines de Potasse; Dumez France v Hessische Landesbank; Marinari v Lloyds Bank; Bonnier Media Ltd v Greg Lloyd Smith and Kestrel; Gutnick v Dow Jones (Australian case); Euromarket Designs v Peters and Trade & Barrel; Mecklermedia v DC Congress. 8. What is the rule in multi-state torts? Please summarise the Shevill v Press Alliance case. 9. What are the rules on cross-border enforcement in the EU? 10. When does the Rome Convention on Applicable Law apply? 11. Which law applies to a contract under the Rome Convention? 12. What are the special consumer rules in the Rome Convention? 13. US Jurisdiction: what are the traditional rules for a court in a particular state to assume jurisdiction? 14. What other grounds are there? 15. What constitutional restrictions are there on the courts assuming jurisdiction? 16. Please summarise/outline the following questions: International Shoe v Washington; World-Wide Volkswagen v Woodson; Asahi Metal Co v Superior Court of California; Burger King v Rudzewicz; Calder v Jones; Compuserve v Patterson; Bensusan Rest v King, Zippo v Zippo; Mink v AAAA Development; Donmar v Swanky Partners; Young v New Haven Advocate. 17. Why is individuals’ privacy endangered by the internet? 18. What amounts to personal data? 19. When does the European regime on data protection (Directive 95/46/EC) apply? 20. What formal administrative procedure do businesses who collect personal data have to comply with? 21. Under what circumstances can website operators collect data from individuals? 22. Do they always need an individual’s consent? 23. Please outline the eight data protection principles in the EU Data Protection Directive 95/46/EC 24. What sanctions are available against non-complying businesses? 25. Can data be easily transferred outside the EU? What are the possibilities for making such a transfer legal? 26. Explain the differences in data protection law and privacy law in the EU and the US. How was a compromise reached to reconcile these two approaches 27. Please explain the concept of data subject access request 28. Apart from data protection are there other legal instruments in the UK protecting privacy? 3. EXAM QUESTION

1. Question

Hanna, an Irish national, is a very wealthy lawyer resident and domiciled in Rome, Italy. At times she gets really bored with law and she draws funny cartoons related to law and politics, which she uploads onto her website hosted by Renard, a French ISP. Users wishing to retrieve these cartoons obtain a licence to use the drawings for private purposes on paying a small fee to the ISP, Renard. Renard takes a small commission and pays the remainder to Hanna. In one of her cartoons she makes a drawing of Bigwig, one of the well-known judges of the European Court. Bigwig is represented as a pig throwing dice in a courtroom. Bigwig is a German national resident in Germany. However he has a secondary residence in Luxembourg where he lives during the week, while the Court is in session. Hanna has also recently discovered that about 50 of her drawings were reprinted by a US magazine WOW, incorporated and having its central management in California. This magazine is produced and published in California and has its main readership in the US. However it is also available online against payment of a subscription. Finally Hanna bought some flight and car hire tickets (for her holiday) with Fastwings travel- an Australian corporation, which has physical travel agency offices in London and Brussels. She bought the tickets from their website at www.fastwings.co.uk, paying by credit card. The tickets, to a value of £ 1,000 never arrived and Hanna has heard rumours that the company is being liquidated.

(i) Bigwig is threatening to sue Hanna for defamation. Hanna assumes that he might bring proceedings in Germany but wonders, where else he could bring proceedings against her. (ii) Renard is threatening to sue Hanna for breach of contract in France. The contract between Hanna and the ISP provides that the customer is not allowed to upload any defamatory (or other illegal) material and that the she is to indemnify the ISP against any liability arising from such material being uploaded. The contract furthermore provides that the French courts should have exclusive jurisdiction for any disputes arising from the webhosting contract and that French law applies to such disputes. Renard has notified Hanna that he has terminated her account and shut down her website and that he demands payment of all outstanding charges and fees. (iii) Hanna refuses to pay any outstanding charges on the contract and considers taking action against Renard. (iv) Hanna wants to sue the publishers of the US magazine WOW for copyright infringement and wonders whether she could sue them in the UK courts and what law would apply. (v) Hanna also wonders where to bring proceedings against Fastwings. Please advise Hanna on which courts are competent (jurisdiction) in the various claims indicated and which countries' laws apply and also on the relevant issues relating to enforcement. Please only deal with conflict of law issues and ignore any substantive law issues.

2. Question

Elegant De-Lites is a new, UK online spa cuisine order service that will deliver selected pre-prepared meals to your door according your individual preferences and dietary needs or goals. Via a secure socket layer window, each new client registers with the service online, providing name, credit card details and delivery address and a brief description of his or her objectives, such as to save time in food preparation, to lose weight, to eat more nutritious meals, to eat less salt, etc. This is the only part of the site and the system that uses encryption.

The client then receives an individual password and schedules an initial appointment in a password-protected chat room with a registered dietician. This covers a whole range of issues to ensure that the client’s needs are met, including food allergies and other dietary restrictions, usual eating habits, lifestyle, health issues and individual food preferences, e.g., vegetarianism. A set of menus is agreed for two weeks.

Meals are then delivered to the specified address by a third-party delivery service with vans operated by chefs who can provide last-minute assembly and preparation so that the food is always is if it were just prepared. At the end of two weeks, these chefs bring along a scale for the client to weigh themselves, if they choose. These and other results reported by the client are recorded by the dietician in a biweekly chat room session. The recorded client information is maintained in a central database which can be accessed by Elegant De-Lites staff and the delivery chefs only according to preauthorised levels. So, for example, the delivery chefs can only check location and food preference and allergies for their assembly and delivery via a handheld wireless device. Only the assigned dietician can access the entire record.

Recognizing that this service will likely be used by affluent, busy people concerned about their appearance, producers of many fine food, beverage and personal products have approached Elegant De-Lites to have send their clients information about their products in the email that it sends them with their weekly menu selection options. So far, Elegant De-Lites has not accepted any of these offers. However, these could prove very financially rewarding, so it is seriously considering it.

A hacker was detected monitoring the system. While the intrusion was possibly detected right away, it is not absolutely certain what information he had access to. In light of all the bad publicity about hackers taking personal data, Elegant De-Lites’ owner has come to you seeking advice about its current and likely future operations to ascertain its compliance with and possible liabilities under the data protection law of the UK. Please advise her in this regard.