Law is more than just a belief that human beings need to act in a certain way. We all have these beliefs. There are many behaviours that are not socially acceptable, such as turning ones back on another during a conversation, but this does not make it illegal. Society has a way of imposing normative acceptable behaviour on individuals but for these norms to be come law they require something more. Law derives much of its existence from norms but law gains its power from the source. The body that makes the law is a sovereign body that requires obedience. For example this could be rules from government requiring compliance.
One major characteristic of law as opposed to a social norm is the concept of enforceability. The failure to comply with a law can result in a sanction, the ultimate sanction being loss of liberty and in some jurisdictions even the loss of life.
If it is accepted that law requires the ability to impose sanctions then the law as it relates to electronic commerce will experience some unique problems.
The first problem is just whose law applies to a particular activity. Law in cyberspace is beyond the boundaries. Which state has the power to impose law or execute the sanctions? The issue is one of JURISDICTION.
Employer Liability & Vicarious
The first issue is that of vicarious liability. All managers (and employees) should be familiar with this concept. Management cannot hide from the fact that it will more often than not be responsible for the actions of its employees.
Electronic commerce exposes management to great risk not only through its own activity but that of its employees be it through defamation, criminal activity or breach of intellectual property law.
Be familiar with the concept of vicarious liability and as you consider the law in the following weeks remember the implications of this liability.
The Principle of vicarious liability is that the employer has the responsibility of indemnifying a third party for damage or loss suffered as a result of a wrongful act committed by an employee in the course of an employee's employment . This duty also extends to other employees of the employer. The wrongful act may be in tort (which includes negligence and defamation), breach of contract or breach of a statutory duty under legislation such as the Trade Practices Act and can also include criminal acts.
The employer has also the responsibility of maintaining a safe place of work which is embodied by the relative occupational health and safety and the anti discrimination and anti harassment legislation.
Employer Liability For Employee Use Of The Internet Timothy Hughes, Lawyer and Tim Gole, Paralegal April 1999
Law And Borders--The Rise of Law in Cyberspace
"Law, defined as a thoughtful group conversation about core values, will persist. But it will not,could not, and should not be the same law as that applicable to physical, geographically-defined territories."
ENDNOTE ON REGULATING CYBERSPACE:
Graham Greenleaf discusses how governments could legislate to affect or control cyberspace. Provides an interesting (if not a bit wordy) overview of the structural issues relating to regulation.
The question still remains whether self regulation may be the only option.
Avoiding the Long Arm of
the Law in Cyberspace
The vexing problem of jurisdiction covers nearly all topics.
Once right is on your side how in fact do you enforce law in the international arena. Enforcement is a major problem which begs the question should there be an attempt to formulate uniform global enforcement policy or should we simply rely on self regulation?
No matter what topic you are considering the issue of enforcement will rise.
In Taxation, for example, what steps is the Australian Tax office taking to enforce revenue law? How can Victorian police enforce gaming regulation in Victoria when the offence is seemingly being perpetrated in another jurisdiction?
The same questions could apply to Singapore or any other country in the world.
global enforcement challenge
The Australian Competition and Consumer Commission. Discussion paper. The enforcement of consumer protection laws in a global marketplace.