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Internet and E-commerce laws in New Zealand, by Eugene Duhovnikoff BA/LLB

The World Wide Web had revolutionized many areas of our life including the way people and businesses communicate with each other as well as the way they do commerce with each other. Some of the well established arrears of law such as defamation, privacy, consumer law and the law of contract were adapted to suit the online environment. There is also a grown industry of e-commerce where goods and services are being sold nationally and internationally by the individuals and the companies to other individuals and the companies. Given the complexity of this area many disputes do not go into the litigation but rather are being resolved by the mediation and arbitration.

 

The Electronic Transactions Laws

Advances in technology have created new ways of dealing with information. Law was considered uncertain as to whether electronic records fulfilled legal and policy requirements. The lack of electronic transactions legislation may indeed have contributed to, rather than impeded, the spectacular growth of electronic commerce and deployment of digital technology. Modern electronic transaction legislation aims at reducing uncertainty regarding the legal effect of electronic information and the time and place of dispatch of electronic communications and allowing the use of functionally equivalent technology to meet paper-based legal requirements for writing, signature or the retention of documents. In practical terms modern laws aim to provide a number of useful definitions such as definitions of writing, information and information system. It also provides practical guidance for resolutions of practical legal difficulties associated with online environment by providing when a certain act is deemed to have taken place. For example an electronic communication is taken to be received when it arrives in information system designated by the addressee for the purpose of receiving electronic communications.

 

Unsolicited Electronic Messages Legislation

These laws are introduced in an attempt to resolve the Problem with Spam which undermines the consumer confidence in the safety of the Internet as a business environment and can cause the loss of speed and efficiency of the Internet and injury to business goodwill of an ISP and the value of its possessory interest in its network. For example in New Zealand the Unsolicited Electronic Messages Act 2007 prohibits commercial electronic messages that have a New Zealand link from being sent to people who have not given their prior consent to receiving those messages; prohibits promotional electronic messages that have a New Zealand link from being sent to a person who has withdrawn consent to receiving those messages; requires all commercial and promotional electronic messages to include accurate information about the person who authorized the sending of the message, and contain a functional unsubscribe facility; prohibits address-harvesting software and any electronic address list produced using that software from being supplied, acquired for use, or used in connection with sending unsolicited commercial electronic messages promotional electronic messages. It is important to note that the majority of the common law jurisdictions extend application of their relevant extraterritorially. At its core such laws prohibit sending a commercial e-message unless the customer opts-in and provides for the proper identification of the sender of a commercial e-message. These laws aim to stop the following behavior:

  • Prohibition on unsolicited commercial e-message;
  • Requirement for accurate sender information;
  • Requirement for commercial e-messages to contain functional unsubscribe facility; and Restriction on address harvesting and harvested address lists -third party breaches of the Act.

 

Giving false advice

The person who put the information on the Internet will only be liable if he owes a duty of care to the person who acts or relies on the information and suffers loss. Damage caused in this way will normally be pure economic loss. No different legal principles apply to misrepresentations on a website than to those anywhere else in the public domain. A duty of care can arise from statements on websites. A negligent statement on a website could be remedied by a disclaimer elsewhere on the site however whether something is a disclaimer or not would be determined depending on the circumstances. Another issue associated with the giving negligent advice in the online environment is a possibility of a duty or care arising out tailoring of advice to specific questions in today’s interactive websites. In some circumstances a passive publication may give rise to liability. For instance in a situation where a person reads advice on a medical website, follows it and suffers physical injury. However all the ingredients of a tort should be proved such as reliance which should have been reasonable in the circumstances otherwise the provider of information will be free from liability in negligence to readers.

 

No advice

This website contains general information about legal matters. The information is not advice, and should not be treated as such.

Limitation of warranties

The legal information on this website is provided “as is” without any representations or warranties, express or implied. Reeves Duhovnikoff & Associates Limited makes no representations or warranties in relation to the legal information on this website. Without prejudice to the generality of the foregoing paragraph, Reeves Duhovnikoff & Associates Limited does not warrant that: the legal information on this website will be constantly available, or available at all; or the legal information on this website is complete, true, accurate, up-to-date, or non-misleading.

Professional assistance

You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

Reeves/Duhovnikoff & Associates Ltd. 2017

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