Legal Risk Management in Electronic Commerce

The purpose of this chapter is to provide an introduction to the subject matter of this thesis, its hypotheses, the applied methodology and delimitation.

This thesis deals with cross-border law enforcement which, in this thesis, is defined as the enforcement of the legislation of one state on a natural or legal person established in another state. From a state perspective, the question is to what extent it can enforce its legislation on persons who are residing in other states. This thesis deals with cross-border law enforcement from a business perspective (legal risk management). From such perspective, the interest in cross-border law enforcement can be formulated as to what extent the law of foreign states can be enforced on a business and what the business can do to mitigate or eliminate such risk of cross-border law enforcement.

The focus in this thesis is on electronic commerce carried out on the Internet. The Internet is a world-wide computer network which allows people around the world to communicate easily at a low cost. Commercial transactions may be carried out on the Internet in the form of electronic commerce. The amount of commercial presence on the Internet is growing and entails different activities such as business and product presentations, sale of goods and services and delivery of 'digital goods' (for example music, film and software). Electronic commerce is interesting since it allows easy cross-border transactions between a business and its actual and potential customers, without a need for the business to engage in an establishment in the state of the customer.

The Internet has made it substantially easier for businesses to reach a global marketplace, but commercial activities which influence different markets are not unlikely to become subject to the legal regime of those states. In the absence of globally accepted standards for geographical delimitation of content on the Internet,¹ the infringement of foreign law is a risk which businesses inevitable will run when carrying out e-commerce on the Internet. 'The prospect that a website owner might be haled into a courtroom in a far-off jurisdiction is much more than a mere academic exercise, it is a real possibility'.² Compliance with national laws is rarely sufficient to limit a business's exposure to legal risks.³ Complying with law on a global basis is, if possible at all, expensive. Some people have suggested that the Internet should be recognised as a virtual world not regulated in a traditional, legal sense.

'Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather'.⁴

It is obvious that activities on the Internet influence people, societies and markets in a very tangible way. The Internet is solely a medium which facilitates communication between individuals, but with an enormous potential.⁵

States are sovereign, and are to that extend not obliged to accept illegal activities affecting the state, just because they are carried out on the Internet.⁶ States may take various actions to regulate the Internet.⁷ The enforcement of legislation is often cumbersome, if possible at all, and may only be carried out to the extend that it does not violate the sovereignty of other states. This thesis deals with the possibilities in cross-border law enforcement and the effect of certain risk mitigation measures.⁸ The main purpose is to provide research which supplies guidance on how businesses can deal with the risk of being met with legal requirements deriving from a state other than that in which the business is established.

A US study suggests that the risk of getting hauled into court is the biggest fear of companies operating online and that companies, particularly those situated in North America, seek to influence jurisdictional outcomes by using both technological and legal approaches to mitigate risk. The most common approaches were to either eliminate or reduce business activity in higher risk jurisdictions or to target specific jurisdictions that are perceived to be lower risk alternatives. The most commonly used approaches were technical access blocking (50 percent), user registration requirements self-identification, and password protection (40 percent). The most popular approaches to identify users were through user registration or self-identification.⁹

This thesis concerns in particular the discussion on zoning the Internet¹⁰ which is related to the questions of maintaining geographical borders in a medium which does not automatically recognise such borders. The idea is that the content of the Internet may, mainly through technological means, be reserved for certain geographically delimited areas. It has been recognised that there is a legal trend encouraging the use of reliable risk-management strategies, in order to re-create 'noticeable' national borders in cyberspace.¹¹

1.1. Quality

The famous book 'Zen and the Art of Motorcycle Maintenance'¹² tells a story about an academic's (Phaedrus) search for quality as an objectively definable concept. Phaedrus seems to discover that quality is subjective, but not always unharmonised among people. This is a PhD thesis which is submitted in order to achieve the PhD degree from Copenhagen Business School. The quality requirements are thus settled by Danish law.

A Danish PhD thesis must, in conjunction with the public defence, show that the candidate is capable of carrying out a scientific project by applying scientific methods within the branch of knowledge and the thesis must constitute a contribution to research in accordance with international standards for PhD degrees within the branch of knowledge.¹³ This definition is thus the yardstick for measuring the 'quality' of this thesis. The branch of knowledge in question is law and the methodology applied is described below in this chapter.

The project is carried under a 2½ year scholarship ('kandidatstipendiat') which includes certain teaching obligations and course requirements, leaving 1½ year for researching and writing the thesis.

1.2. Purpose

The main purpose of this thesis is to provide an examination of to what extent the law of a foreign state can be enforced on a business which is carrying out electronic commerce on the Internet (World Wide Web), and how a business may mitigate or eliminate the risk of those requirements being enforced. The discussion consists of two parts:

1.2.1. Hypotheses

It requires knowledge of a field of research to formulate hypotheses, and hypotheses are likely to be refined in step with the knowledge acquired through research. Writing hypotheses in the context of a thesis is normally a self-referencing process - a strange loop.¹⁴ The hypotheses presented here are part of the entire research and serve mainly to define the research-theme, and to provide a structure for reaching conclusions through verifying or falsifying the hypotheses. These conclusions may be scrutinised by readers in general and the opponent to the thesis in particular. Similar conclusions to the hypotheses should be reached by other researchers based on the same methodology and delimitations.

The thesis seeks on the basis of the methodology and delimitation described below to discuss and to the extent possible verify or falsify the following hypotheses:

'Activities on the Internet are subject to geographical borders, and it is possible to identify factors that are relevant in assessing where activities on a website are directed.'

'Private parties are better able to carry out traditional cross-border law enforcement than public authorities.'

'The freedom to provide goods and services in combination with the 2000 E-Commerce Directive restricts the possibilities of cross-border law enforcement (both public and private law enforcement as well as traditional and alternative law enforcement).'

'Law enforcers established outside the Internal Market have limited access to traditional cross-border law enforcement against the Business, whereas alternative cross-border law enforcement can be applied.'

'Businesses can mitigate the risks of cross-border law enforcement by applying geographical delimitation and by entering into agreements on forum and applicable law.'

'The laws of the Internal Market limit the Business's possibilities in applying geographical delimitation.'

1.3. Methodology

As mentioned above, a PhD thesis is to be based on scientific methods within the branch of knowledge. Legal methodology can be discussed at length and opinions varies from the non-existence hereof over it being undefinable, yet easy identifiable to firm explanations and strict rules. Science is concerned with empirically observable facts and events.¹⁵ The observable facts dealt with in this thesis are the various sources of law, which comprise inter alia statutory law, case law, preparatory works, and general legal principles. The examination in this thesis is mainly focused on statutory law, preparatory works and case law which altogether to some extent may reflect general legal principles. Legal science will in this context be the systematic investigation of sources of law in order to reach conclusions that can be used to predict the outcome of a trial and/or describe the relevant factors of importance for a judge's decision.

The quality of available (or observed) sources of law is decisive for the validity of the predictions. The better sources of law, the better predictions. The sources of law are mainly identified, but not examined, through literature studies and structured examinations of legal databases. The systematic investigation of sources of law is intended to simulate judges' way of thinking - a thinking process which concerns the distribution of importance to facts and sources of law. This is a way of thinking that lawyers are trained in and which is reflected in judgments. This is not the only possible understanding of law, but the understanding on which this research is carried out. It should be mentioned that different courts may attach different degrees of importance to the various sources of law.

The thesis maintains a broad scope which also includes discussions on technology. The broad scope entails that the thesis to some extent relies on the findings of other researchers, including existing literature. This means that many of the covered areas can be researched further. The broader scope means, however, that conclusions can be reached at a higher level of abstraction.

This thesis deals with international law in a broad sense,¹⁶ including also EU and Community law. Sources of international law¹⁷ are mainly limited to generally accepted legal principles and international agreements, including in particular those establishing the European Union and the Internal Market. National law is, as a starting point, only dealt with to the extent it reflects international law. National law is, however, used to identify factors connecting Internet activities to particular jurisdictions. It should be noted that there is an interaction between national and international law, and a razor-sharp distinction between the concepts is not necessary in this context. A similar approach to 'international law' is seen in other works.¹⁸ The approach resembles what has been denoted an international technical and comparative approach.¹⁹

Case law is mainly based on decisions entered by the European Court of Justice and the European Court on Human Rights, but as mentioned immediately above, national case law is also examined to some extent, but only in an explorative manner. A number of the situations dealt with require the involvement of national courts, but it is not the intention to discuss national law in details, and under all circumstances only in a general manner. The case law is selected mainly on the basis of its authority and its relevance to distance activities, including both Internet activities and other activities carried out over a distance through other media such as for example television.

Inspiration for the interpretation of the acts examined is also found in preparatory work and other documents elaborated by well-respected legal writers and international organisations, including in particular the European Commission and the Hague Conference. The value as a source of law may, in principle, be limited, but those documents serve to provide an understanding of the intentions behind the acts. In particular in international criminal law, the amount of traditional sources of law is limited. For practical reasons, this thesis is build mainly on sources written in English and Danish.

Scientific research is often based on a number of premisses which are not corresponding completely with the world around us. In fact all observations done by human beings are limited by the sensors, processing power and intellectual capacity of human beings. Research is about compressing information to an operational level of abstraction.²⁰ The construction of law concerns the evaluation of both facts and sources of law. As somewhat uncommon in legal research, an imaginary test set-up is created to provide a set of 'facts', upon which the law is applied. This approach is inspired by other areas of science, where experiments are carried to verify or falsify hypotheses. The idea is to maintain the focus of a standardised business ('the Business'). This approach has proven helpful in defining the scope of the thesis, since a number of discussions are excluded by defining the test set-up. Through this approach, it has been possible to maintain a rather broad scope, dealing in particular with private and public international law as well as the laws of the Internal Market and more technical issues. The test set-up is thus part of the general delimitation.

It has been important to examine and discuss the law from a business's point of view rather than providing a general presentation of the law on its own premisses. The approach is not that different from what is applied in the practice of the law, but instead of maintaining the focus of one client, this thesis intends to reach conclusions which are relevant for a number of businesses. This is in good harmony with the fact that this thesis is written and submitted for evaluation at a business school, and the need for providing research which may be utilised by businesses. The applied methodology leans against an economical 'realism', but the economical part is left to be pursued in later work.

1.4. Delimitation and Definitions

This thesis deals with a broad variety of legal areas, and it is difficult to provide a general overview of all delimitations carried out. In general, it can be said that the thesis is confined to the areas actually dealt with in the thesis. The main topics dealt with are the free movement of goods and services in the Internal Market, freedom of expression, public international law, private international and procedural law, geographical delimitation / targeted online activities and discrimination based on domicile/nationality in the Internal Market. These areas of law are confined to issues relevant to cross-border law enforcement within the provided test set-up. The analysis of the Internal Market is confined to the free movement of goods and services, which means that the free movement of persons, capital and the freedom of establishment is not examined.

The focus of this thesis is confined to electronic commerce, which in this context is defined as commerce carried out on an electronic network. This thesis focuses on activities carried out on the World Wide Web through the Internet. Even though the Internet and the World Wide Web are distinct entities, they are, for the sake of simplicity and unless otherwise stated, referred to collectively as 'the Internet'.²¹

Law enforcement concerns a variety of activities with a view to compelling observance of legal norms. By 'enforcement' is understood imposing sanctions on the infringer of a norm. 'Law enforcement' is the enforcement of 'legal norms', whereby is meant norms that can, at least in principle, be enforced through the judiciary. Law enforcement that is carried out through the judiciary is labelled 'traditional law enforcement', whereas enforcement of law carried out in other ways is labelled 'alternative law enforcement'. Alternative law enforcement can for example be carried out through the market (reputation) or by technical means. Law enforcement may be carried out by both public and private entities and is in this thesis denoted 'public law enforcement' and 'private law enforcement' respectively. Private entities are entities not exercising public powers.²² Cross-border law enforcement is in this thesis understood as imposing sanctions under the law of one state upon an infringer established in another state.

Traditional cross-border law enforcement normally requires cooperation by the state in which the business is established. Traditional law enforcement may be carried out 1) if the state, in which the business is established, recognises a foreign judgment, where foreign law is applied or 2) if the state in which the business is established applies foreign law. In more severe crimes which are not dealt with in this thesis, traditional cross-border law enforcement may also be carried out by means of extradition of the offender.

Alternative law enforcement is enforcement by other means than those imposed by the judiciary. This could for example be by blocking a website, whereby the citizens of a state are denied access to certain content.²³ Also enforcement through unfavourable commenting may be quite efficient in terms of imposing sanctions on a business. It falls outside the scope to evaluate the effects ('value') of law enforcement, since the thesis only focuses on the possibilities herein, including legal barriers to law enforcement which may be derived from the law of the Internal Market. The analysis concerning alternative law enforcement is confined to its compatibility with the laws of the Internal Market. It is assumed that alternative law enforcement can be carried out without cooperation of the state in which the business is established. As regards the effectiveness of such enforcement, the consequences for the business and the possibilities of managing such risks require discussion of economic and technical issues which are not dealt with in this thesis.

Cross-border litigation is normally both expensive and cumbersome. This may deter an aggrieved party from suing another party even if the outcome of a case would clearly benefit the aggrieved party.²⁴ This is especially the case where the subject matter is of insignificant value like in most consumer purchases on the Internet. This is only one obstacle to cross-border law enforcement which also counts problems relating to serving documents, discovery, investigation, legal aid, risk of procedure (cost-benefit) etc.²⁵ These factors are not dealt with in this thesis, which only focuses on the possibility, in principle, of imposing sanctions or restrictions.

The subject matter has for practical reasons been delimited to the enforcement of requirements in connection with commercial communications and practices (unfair competition law).²⁶ This includes enforcement of this body of law through contractual relations.²⁷ Even though unfair competition law may be severely sanctioned, the analysis deals only with fines, injunctions, damages and contractual liability or consequences. This means that for example custodial penalties, disqualification, confiscation, extradition, community service etc. are not dealt with. The thesis takes the viewpoint of a profit-optimising business which is concerned with the sanctions deriving directly from the types of enforcement described above. The analysis does not deal with the magnitude of sanctions. Only the possibilities in cross-border law enforcement are examined. It is not the intention to elaborate on material law, it is just assumed that the law of a foreign state is infringed.

Unfair competition law can be defined by its objective to prevent the competition which takes place on a particular market from degenerating and becoming harmful or even abusive. The rules against unfair competition are intended to protect the qualitative aspect of competition, and are thereby to be distinguished from rules on restrictions of competition (antitrust laws) which are concerned with the structure of the market and intended to protect the quantitative aspect of competition.²⁸

Antitrust laws seek to preserve freedom of competition by combating barriers to trade and the abuse of economic power, whereas the law of unfair competition seeks to ensure fair competition by requiring all participants to play the game according to the same rules. The distinction between an act of unfair competition and a restriction of competition is not always easy to make, and the line of demarcation is not the same in all legislation.²⁹ A coherent body of unfair competition law can be identified as provisions dealing with comparative advertising, confusion, parasitic behaviour, special offers, low prices, prohibiting disparagement of competitors and discriminatory sales conditions, including price discounting.³⁰ Unfair competition law may be formulated in a special law or specific provisions inserted into legislation of general scope or through general rules which provide for civil or penal sanctions.³¹

1.4.1. The Test Set-Up

The test set-up applied in this thesis involves a business ('the Business') which is established in a state which is member of the European Union. It is assumed that the Business has no establishment or goods in other states than the state in which it is established.³² The Business is carrying out electronic commerce on the Internet. The online activities consist of publishing marketing material and selling products (goods or services) to both businesses and consumers ('the User'). Since the thesis adopts the viewpoint of the Business, the use of the term 'foreign' (as in foreign courts and foreign law) refers to another state than the state in which the Business is established.

The Business is assumed to comply with the law of the state in which it is established. This means that it, in principle, is without interest if a foreign court applies the law of the state in which the business is established. In practice it may have consequences for the Business if a foreign court applies the law of the Business. It means that the Business will have to defend itself in a foreign court and the risk of misinterpretation of the law is larger, all else being equal. There is in the Internal Market a substantial harmonisation of substantive law, which means that there to some extent in practice are limited difference between the laws of Member States in certain areas. This includes in particular the 1984 Misleading Advertising Directive,³³ the 1997 Distance Selling Directive,³⁴ the 2000 E-Commerce Directive,³⁵ and the 2005 Directive on Unfair Commercial Practices.³⁶ It falls outside the scope of this thesis to present and discuss this harmonised body of substantive law.

Due to the international nature of the Internet, the Business is facing the risk of being met with legal requirements under the law of a foreign state. These legal requirements may be enforced by either 1) a public authority, 2) a private party without a contractual relationship with the Business and 3) a private party with a contractual relation with the Business. A number of imaginary experiments within the described test set-up is assumed. The experiments assume that a law enforcer seeks to impose a sanction on the Business. The observations made will be whether the law enforcer can expect to succeed in sanctioning the business or not. In a number of situations it will be clear whether law enforcement is possible, but in other situations knowledge of national law is required.

The project deals with two categories of enforcement, i.e. 1) traditional law enforcement carried out through the judiciary and 2) alternative law enforcement carried by other means. It is assumed that only one enforcement action is carried out at the time. This entails that the thesis does not deal with questions concerning competing competence in the same dispute.³⁷ What is interesting in this context is the legal competence of various courts and in particular the access to have judgments recognised and enforced.

In the first round of experiments the Business will not apply any risk mitigation and the outcome will provide information of the possibilities in law enforcement.³⁸ In the second round of experiments the Business applies various methods of risk mitigation as further described in chapter 5. I.e. 1) geographical delimitation and 2) choice of forum and applicable law. The outcome will be used to evaluate the effect of such risk mitigation.

1.5. What is New?

A PhD thesis must constitute a research contribution according to international standards for PhD degrees within the branch of knowledge. One key contribution lies in the applied methodological approach. Legal risk management, as a proactive approach to law, is subject to discussions³⁹ and this thesis is not only a contribution to research within the subject matter covered, but it is also an example of how research can be carried out in order to contribute to proactive law and legal risk management.⁴⁰ The methodology applied in this thesis is based on a traditional approach to law and legal research. The adopted approach differs from what is normally seen in legal research,⁴¹ since it takes a particular point of view. In this situation the viewpoint of a profit-maximising business. This approach has made it possible to reach conclusions which are easily integrated into practice, but the approach has also allowed to deal with a relatively broad body of law because the test set-up excludes a number of legal discussions within the different areas of law.

The thesis also deals with questions on the interaction between law and technology.⁴² This interaction is in this thesis dealt with in connection with the idea of zoning the Internet, which has been discussed at some length, but mainly from a US perspective and mainly in the context of US law. The focus in these discussions has mainly been concentrated on jurisdiction and choice of law, whereas this thesis focuses on the enforcement of law across borders - an approach which unavoidably comprises questions on both jurisdiction and choice of law as elements. The focus is on the actual burden on the Business (enforceable sanctions) rather than a hypothetical burden including unenforceable sanctions.

The Internet is a relatively young medium and the application of law on this medium is despite a great deal of attention still a young branch of law, if a branch at all. International law, which is the legal core of this thesis has a longer history. This thesis works across both private and public law enforcement, since the Business may not from an economical point of view care whether a punishment falls under public or private law. Public and private law enforcement is often dealt with separately. The identification and structuring of the issues dealt with in this thesis provides a framework in which further research in legal aspects of international e-commerce can be fitted. It is also discovered through the research, where a need for harmonisation or clarification may be found. This is in particular true for areas where the Business will have to consider foreign, national law.

The thesis contains discussions including the most recent case law which, in itself, provides something new. The most important conclusions are made on a higher level of abstraction, but the thesis includes a number of discussions covering more detailed questions, and providing legal research at a lower level of abstraction. It is not always, in this context, a goal in itself to provide clear answers to the discussed question. The establishment of possible outcomes and the points of uncertainty may be more valuable than a single, vaguely founded, answer.

1.6. Outline of the Thesis

This is the introductory chapter which provides the background and purpose of the project along with the hypotheses to be examined and the applied methodology and delimitation.

In this chapter, the legal background of the Internal Market is introduced along with the principles of free movement of goods and services, in order to determine its influence on measures taken by both public and private law enforcers. The country of origin principle of the 2000 E-Commerce Directive is also introduced and its consequences for the Internal Market are discussed. The concept of freedom of expression is examined in order to establish to which extend the Business can rely on that freedom to avoid sanctions.

This chapter focuses on public entities' access to carry out traditional cross-border law enforcement. This chapter deals with enforcement under administrative and criminal law ('public law') and will examine enforcement arrangements and the limitations inherent in international and Community law.

This chapter explains the possibilities in traditional cross-border law enforcement within private international and procedural law. It is also discussed how Community law, including in particular the country of origin principle, may hinder private law enforcement.

This chapter comprises an introduction to the technology behind the Internet. Based on the technology and case law, it will be discussed if it is possible to consider the Internet as a zonable medium. It will be examined, based on case law from various jurisdictions, which factors are relevant when considering where a website is directed. The possibilities in delimiting the impact of a website on the markets of foreign states are discussed. The chapter also deals with to what extend Community law may limit the Business's access to discriminate on the basis of nationality or place of residence.

Overall conclusions, where the outcome of the analysis will be discussed in order to establish whether the hypotheses can be verified or falsified.

1See for example Vasiljeva, Ksenija, 1968 Brussels Convention and EU Council Regulation No 44/2001: Jurisdiction in Consumer Contracts Concluded Online, European Law Journal, Volume 10 (January 2004), Issue 1, p. 123 at page 133f.

2Geist, Michael A., Is there a There There? Toward Greater Certainty for Internet Jurisdiction, Berkeley Technology Journal, No. 16, 2002, p. 1345, p. 1.

3Geist, Michael A., Is there a There There? Toward Greater Certainty for Internet Jurisdiction, Berkeley Technology Journal, No. 16, 2002, p. 1345, p. 3.

5See for example Haines, Avril D., The Impact of the Internet on the judgments Project: Thoughts for the Future, Hague Conference, Permanent Bureau, Preliminary document 17, February 2002, p. 5.

6'A nation's right to control events within its territory and to protect its citizens permits it to regulate the local effects of extraterritorial acts'. Goldsmith, Jack L., Against Cyberanarchy, 65 University of Chicago Law Review, Fall, 1998, p. 1199 at IV-A.

7See for example Ramberg, Christina, Internet Marketplaces, the Law of Auctions and Exchanges Online, Oxford University Press, 2002, paragraph 2.05 with references.

8Geographical delimitation of content on the Internet and the choice of forum and applicable law.

9Global Internet Jurisdiction, The ABA/ICC Survey, American Bar Association, Sub-Committee Chair: Professor Michael Geist, April 2004, pp. 2-3 and 14-15.

10See Lessig, Lawrence and Resnick, Paul, Zoning Speech on the Internet, Michigan Law Review, November 1999, p. 395. See Spang-Hanssen, Henrik, Cyberspace & International Law on Jurisdiction, DJØF Publishing, 2004, p. 313ff. for an overview of this discussion.

11Kohl, Uta, The Rule of Law, Jurisdiction and the Internet, International Journal of Law and Information Technology, vol. 12, no. 3, p. 367-376 at p. 371f.

12Pirsig, Robert M., Zen and the Art of Motorcycle Maintenance: 25th Anniversary Edition, Vintage books, 1999.

13See section 3(1) of the Danish Order Concerning the PhD Education and the PhD Degree ('bekendtgørelse 114 (8 March 2002) om ph.d.-uddannelsen og ph.d.-graden').

14See in general on the concept of strange loops, Hofstadter, Douglas R., Gödel, Escher, Bach: an Eternal Golden Braid, 20th-anniversary ed., Penguin Books, 2000.

15Freeman, M. D. A., Lloyd's Introduction to Jurisprudence, seventh edition, Sweet & Maxwell, 2001, p. 13.

16See in general Shaw, Malcolm N., International Law, Fifth Edition, Cambridge University Press, 2003, p. 48ff.

17See in general on sources of international law, Shaw, Malcolm N., International Law, Fifth Edition, Cambridge University Press, 2003, p. 65ff.

18See for example International Law Association, Transnational Enforcement of Environmental Law, Second Report, Berlin Conference (2004), Dr Christophe Bernasconi and Dr Gerrit Betlem (Rapporteurs), p. 2. Where it is stated that 'it is not feasible to provide a comprehensive analysis of numerous domestic laws. More detailed discussion is limited to regionally harmonised private international law of the European Community, as that encompasses 25 jurisdictions in one go, and to some individual domestic jurisdictions where the law can be deemed to be representative of wider trends or contains innovative approaches'.

19See Spang-Hanssen, Henrik, Cyberspace & International Law on Jurisdiction, DJØF Publishing, 2004, p. 198f.

21See for a similar approach Yahoo! Inc v. La Ligue Contre le Racisme et l'Antisemitisme et al, United States Court for the Northern District of California, San Jose Division, 169 F. Supp. 2d 1181; 2001 U.S. Dist. LEXIS 18378; 30 Media L. Rep. 1001 (7 November 2001), footnote 1. 'Generally speaking, the Internet is a decentralized networking system that links computers and computer networks around the world. The World Wide Web is a publishing forum consisting of millions of individual websites that contain a wide variety of content'. See 5.2.1.1 for a technical introduction to the Internet and World Wide Web.

23See for example Dornseif, Maximillian, Government Mandated Blocking of Foreign Web Content, md.hudora.de and Ramberg, Christina, Internet Marketplaces, the Law of Auctions and Exchanges Online, Oxford University Press, 2002, paragraph 2.05.

24See for example Cooter, Robert and Ulen, Thomas, Law & Economics, Third Edition, Addison-Wesley, 2000, p. 336.

25See in general Lookofsky, Joseph and Hertz, Ketilbjørn, Transnational Litigation and Commercial Arbitration, second edition, Juris Publishing and DJØF Publications Copenhagen, 2004, p. 609ff. and Bellia, Patricia L, Berman, Paul Schiff and Post, Davis G., Cyberlaw – Problems of Policy and Jurisprudence in the Information Age, Thomson West, 2003, p. 168ff with references.

26See in general Kabel, Jan, Swings on the Horizontal, The Search for Consistency in European Advertising Law, IRIS 2003-8.

27The distinction between private and public law is becoming increasingly blurred, and in particular consumer protection is often enforced through private law remedies. See Hörnle, Julia, The European Union Takes Initiative in the Field of E-Commerce, JILT 2000 (3), p. 333 at p. 352. See also Schepel, Harm, The Enforcement of EC Law in Contractual Relations: Case Studies in How Not to 'Constitutionalize' Private Law, European Review of Private Law, 5-2000, p. 661, in particular p. 664f.

28Note on Conflicts of Laws on the Question of Unfair Competition: Background and Updated, drawn up by the Permanent Bureau, Preliminary Document No 5, April 2000, p. 7 with references.

29Note on Conflicts of Laws on the Question of Unfair Competition: Background and Updated, drawn up by the Permanent Bureau, Preliminary Document No 5, April 2000, p. 7 with references.

30Thunken, Alexander, Multi-State Advertising Over The Internet And The Private International Law Of Unfair Competition, International and Comparative Law Quarterly, October 2002, p. 3 with references.

31Note on Conflicts of Laws on the Question of Unfair Competition: Background and Updated, drawn up by the Permanent Bureau, Preliminary Document. No 5, April 2000, p. 15.

32If the Business would have valuables in other states, the risk of being sued there would in most cases be greater, since a judgment can be enforced by seizing the valuables there. See also Geist, Michael A., Is there a There There? Toward Greater Certainty for Internet Jurisdiction, Berkeley Technology Journal, No. 16, 2002, p. 1345 at II.

33Directive 84/450 (10 September 1984) concerning misleading and comparative advertising.

34Directive 97/7 (20 May 1997) on the protection of consumers in respect of distance contracts.

35Directive 2000/31 (8 June 2000) on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).

36Directive 2005/29 (11 May 2005) concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council.

38See in general on various ways of enforcing legislation across borders in Trzaskowski, Jan, Cross-Border Law Enforcement in the Information Society, Julebogen 2003, DJØF Publishing, 2003.

40See for example the preface to Dahl, Børge and Nielsen, Ruth (editors), New Directions in Business Law Research, GadJura, Denmark, 1996 and Østergaard, Kim, Metode på cand.merc.jur. studiet, Julebog 2003, Jurist- og Økonomforbundets forlag, 2004, p. 269. See also www.proactivelaw.org on 'the Nordic School of Proactive Law'.

42See in general about 'code' as law in Lessig, Lawrence, Code and Other Laws of Cyberspace, Basic Books, 1999.

1. Introduction