E-Commerce - legal aspects - a brief overview
Like in most other countries, the e-commerce field is developing rapidly at the moment.
Even if Norway is not a member of the European Union, Norway is as party to the European Economic Area Agreement (EEA) bound by the same regulation as the EU countries in most aspects in this field. EU directives and laws are therefore applicable here in the same way as in the EU countries.
The EU directive concerning electronic trade of 8 June 2000, with reference 2000/31/EC, shall according to Article 22 be implemented in the member countries within 17 January 2002.
We have in Norway today no Internet-specific legislation. Norwegian law is already to some extent in accordance with the directive. For example, according to Norwegian Internal Law, there is no need for a direct regulation stating that E-commerce contracts shall be legally binding, as this is already the case in advance.
A bill concerning electronic trade is at the moment out on hearing. The main points of this bill are being dealt with under item 1. hereunder. In addition I will also point to some other issues related to the topic above, Item 2-9.
1. BILL ON ELECTRONIC TRADE
Sec. 1 Scope and Purpose is based upon the directive art. 1 as to scope and purpose, and covers the establishment and operations of service providers having their place of establishment in Norway. The similar exceptions as in Art. 1 are made in this sec.
Sec. 2 Definitions cover Service provider, recipient of service, information society services, place of establishment, and regulated profession.
Sec. 3 The Sender State Principle equals art. 3 and states that Norwegian law governs as a main rule information society services delivered by a service provider having his place of establishment in Norway. Exceptions are made for choice of law clauses, contract obligations in consumer relations, certain agreements regarding transfer of ownership of land, immaterial rights, unsolicited advertising via e-post, electronic money, marketing of stock funds, insurances.
According to Sec. 4, limitations on information society services delivered by a service provider established in an other EEA state can not be made, if these services are allowed in the country of establishment, with some exceptions as maintenance of the public legal order, public health, public security and defence and protection of consumers.
Sec. 5 Information to be provided regarding the activity of the service provider, is based upon Art. 5 , 1, a-f. and states that the provider shall provide access to his name, address, e-post address and other information making it possible to obtain direct contact., in addition to company number incl. VAT number if applicable, any applicable public consents, work title if regulated by law and the rules that conduct the activity.
Sec. 6, which is based upon Art. 5, 2, Art. 6 and Art. 7, 1, regulates general information to be provided by concerning marketing activities and states that it shall be made in a way making it clear that it is marketing activities, with certain more specific requirements. It is i.a. clearly stated that marketing against consumer without prior approval by electronic post is prohibited.
Sec. 7 (Art. 7,2) states that a service provider shall respect opt-out registers.
Sec. 8 (Art. 10) Information to be provided, states that prior to agreements on information society services, the provider shall give information on:
a) The contents of the agreement incl. standard terms and trade terms,
b) Technical steps to conclude the agreement incl. correction of input errors
c) The language of the agreement
d) Whether or not the agreement will be filed by the service provider and whether it will be accessible
Agreement terms shall be made possible for the recipient to file and copy.
Sec. 9 (Art. 11) Order confirmation, states that the service provider always shall give an electronic confirmation without undue delay.
Sec 10 (Art. 12) Non-liability for certain transmission and access services, provided that the transmission does not take place on the initiative of the provider, the provider does not select the receiver, and does not select or modify the information.
Sec. 11 (Art. 13) Caching, the service provider ins not liable for storage of information provided that the provider does not modify the information, complies with conditions on access to the information, complies with rules regarding the updating of the information , and does not interfere with the lawful use of widely recognised and used technology. Non-liability is based upon immediate removal or disabling of access to the information upon obtaining actual knowledge of the fact that that the information at the initial source of the transmission has been removed from the network.
Sec. 12 (Art. 14) Hosting, is drafted in two alternatives, of which non-liability the second also has a reference to regulations regarding immaterial law, child pornography and racism and is dependant on the providers expedite action upon obtaining information of the illegal activity.
Sec. 13 (Art. 15) No obligation to monitor, states that the provider has no general monitoring obligation
Sec 14. Regulates the providers obligation to prevent access to information upon notice, and
Sec. 15 Contents of the notice, regulates the contents of such notices to:
- The sender’s name and address
- Identification of the information to be removed
- The reason for the request
- Statement that the information given in the request is correct.
Parts of the directive not to be implemented directly is Art. 16 concerning the encouragement of drawing up codes of conduct, as this is already the situation here, i.a. concerning the Nsafe-arrangement which is a result of a cooperation between the Consumer’s Council and Eforum, the Nordic Consumer Ombud arrangement, Net council (European Parliament nr. 276/1999/EC )
Art. 17 regarding out-of-court dispute settlements will not be impended in the act as this is already the situation here
Art. 18 regarding court actions will not be directly implemented as the Department of Justice is of the opinion that the present legislation already takes care of that.
2. REGULATION OF DOMAINS
From February 2001, the Norwegian rules concerning domains have been changed. Formally a legal entity could only have one domain. With the new rules, this will be extended to 15 domains per legal entity.
The former requirement of a "connection" to the name has now been deleted. Any legal entity can now apply for any kind of domain.
As a consequence, we have seen that various legal entities have tried to obtain unspecified domain-name as for example "advokat.no", or to ensure that various versions of company names are secured.
In connection with the new rules, a system of drawing lots has been chosen. After this period, a regular system of first priority now takes place.
3. ELECTRONIC SIGNATURES
Following the EU directive concerning electronic signatures of 13 December 1999, the member countries have been given a time limit to implement the directive to 19 July 2001. A bill with a proposal to an Act concerning electronic signatures has been passed by the Parliament, and is expected to be in force from 1 July 2001.
The purpose of the Act is to enable the providers of certificates, services and products on the Norwegian market to fulfil a certain high security level. The requirements as to security shall be balanced between business, consumers and society interests.
4. MARKETING ACTIVITIES
The Act concerning control of marketing and terms of agreement has been amended recently. According to section 2 B, it is prohibited in commercial activities without the advanced consent of the receiver to market against consumers by means of Tele communication message, allowing individual communication, for example by electronic mail, SMS, to cellular phones, telefax or automated call systems.
According to section 2 C it is further prohibited in commercial activity to deliver or to instruct a provider to deliver unaddressed advertising to consumers that clearly have stated that they resist such advertising.
5. THE CONFLICT BETWEEN TRADE MARKS AND DOMAINS
We have recently had some court cases where the question of trademark infringement by domains has been an issue. The courts have generally ruled that infringement of trademarks through domains is covered by the same legislation as elsewhere. This means that even if a domain has been recognised by the domain recognising body in Norway, NORDIC, a domain may represent an infringement of trademark.
6. SALES FROM OUTSIDE THE SELLER’S PLACE OF BUSINESS
The Act concerning information obligations and reversal right through distant sales and sales outside a permanent place of business, has been amended to implement the EU directive related to distant sales. This Act gives the consumer a right to reverse a transaction within 14 days after the transaction has been made. The Act further requires that a professional seller give various kinds of information prior to and at the same time as the agreement is made.
7. OBLIGATION TO INFORM
Following an EU directive, which is expected to be implemented in Norwegian law in 2002, it is i.a. expected that the terms of agreement and general terms shall be put to the customer's disposal in a way that allows him to store and recall them.
8. SPECIAL REQUIREMENTS AS TO WRITTEN DOCUMENTS
According to Norwegian law, certain agreements shall be made in writing and to some extents also witnessed. This is i.a. wills, deeds, agreements concerning retention of title, credit sales, arbitration and agreements as to legal venues. Such agreements should be physically prepared and signed on documents.
9. STANDARD TERMS
Plain referrals to standard terms on home pages etc. will probably not be sufficient as documentation for acceptance by the customer. It is recommended that the customer expressly accepts such terms after having been given the possibility of reading them, and that the customers accepted is kept in a log file or similar.
The information contained in this brief is given in good faith, and is believed to be correct. However, no responsibility for errors or omissions shall be attached to this law firm and to Euro-American Lawyers Group. The information is provided for guidance only for use of member firms of Euro-American Lawyers Group and their clients, and shall not be relied upon in substitution for advice from the member firm in the relevant jurisdiction.