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Jurisdictions covered

The following 13 jurisdictions are covered in this report:

Brazil; Chile; China; Croatia; India; Indonesia; Japan; Malta; Norway; Poland; Russia; Switzerland; United Kingdom.

Questions

The set of questions relating to the topic of e-commerce and answered by the guide for each jurisdiction covered include:

General

• • How can the government’s attitude and approach to internet-related issues best be described?

Legislation

• • What legislation governs business on the internet?

Regulatory bodies

• • Which regulatory bodies are responsible for the regulation of e-commerce, data protection and internet access tariffs and charges?

Jurisdiction

• • What tests or rules are applied by the courts to determine the jurisdiction for internet-related transactions or disputes in cases where the defendant is resident or provides goods or services from outside the jurisdiction?

Establishing a business

• • What regulatory and procedural requirements govern the establishment of digital businesses in your jurisdiction? To what extent do these requirements and procedures differ from those governing the establishment of brick-and-mortar businesses?

Contracting on the internet

• • Is it possible to form and conclude contracts electronically? If so, how are contracts formed on the internet? Explain whether “click wrap” contracts are enforceable, and if so, what requirements need to be met?
• • Are there any particular laws that govern contracting on the internet? Do these distinguish between business-to-consumer and business-to-business contracts?
• • How does the law recognise or define digital or e-signatures?
• • Are there any data retention or software legacy requirements in relation to the formation of electronic contracts?

Breach

• • Are any special remedies available for the breach of electronic contracts?

Security

• • What measures must be taken by companies or ISPs to guarantee the security of internet transactions? Is encryption mandatory?
• • As regards encrypted communications, can any authorities require private keys to be made available? Are certification authorities permitted? Are they regulated and are there any laws as to their liability?

Electronic payments

• • Are there any rules, restrictions or other relevant considerations regarding the use of electronic payment systems in your jurisdiction?
• • Are there any rules or restrictions on the use of digital currencies?

Domain names

• • What procedures are in place to regulate the licensing of domain names? Is it possible to register a country-specific domain name without being a resident in the country?
• • Do domain names confer any additional rights beyond the rights that naturally vest in the domain name?
• • Will ownership of a trademark assist in challenging a “pirate” registration of a similar domain name?

Dispute resolution

• • How are domain name disputes resolved in your jurisdiction?

Advertising

• • What rules govern advertising on the internet?
• • How is online advertising defined? Could online editorial content be caught by the rules governing advertising?
• • Are there rules against misleading online advertising?
• • Are there any products or services that may not be advertised on the internet?
• • What is the liability of content providers and parties that merely host the content, such as ISPs? Can any other parties be liable?

Financial services

• • Is the advertising or selling of financial services products to consumers or to businesses via the internet regulated, and, if so, by whom and how?

Defamation

• • Are ISPs liable for content displayed on their sites? How can ISPs limit or exclude liability?
• • Can an ISP shut down a web page containing defamatory material without court authorisation?

Intellectual property

• • Can a website owner link to third-party websites without permission?
• • Can a website owner use third-party content on its website without permission from the third-party content provider? Could the potential consequences be civil in nature as well as criminal or regulatory?
• • Can a website owner exploit the software used for a website by licensing the software to third parties?
• • Are any liabilities incurred by links to third-party websites?
• • Is video content online regulated in the same way as TV content or is there a separate regime?
• • Do authorities has the power to carry out dawn raids and issue freezing injunctions in connection with IP infringement?
• • What civil remedies are available to IP owners? Do they include search orders and freezing injunctions?

Data protection and privacy

• • How does the law in your jurisdiction define “personal data”?
• • Do parties involved in the processing of personal data, such as website owners, have to register with any regulator to process personal data?
• • Could data protection laws and regulatory powers apply to organisations or individuals resident outside of the jurisdiction?
• • Is personal data processed on the basis of customer consent or other grounds? What is the commonly adopted mechanism for obtaining customer consent or establishing the other grounds for processing?
• • May a party involved in the processing of personal data, such as a website provider, sell personal data to third parties, such as personal data about website users?
• • If a website owner is intending to profile its customers base to carry out targeted advertising on its website or other websites visited by its customers, is this regulated in your jurisdiction?
• • Does your jurisdiction have data breach notification laws?
• • What precautionary measures should be taken to avoid data breaches and ensure cybersecurity?
• • Is cybersecurity insurance available and commonly purchased?
• • Does your jurisdiction recognise or regulate the “right to be forgotten”?
• • What regulations and guidance are there for email and other distance marketing?
• • What rights and remedies do individuals have in relation to other processing of their personal data? Are these rights limited to citizens or do they extend to foreign individuals?

Taxation

• • Is the sale of online products subject to taxation?
• • What tax liabilities ensue from placing servers outside operators’ home jurisdictions? Does the placing of servers within a jurisdiction by a company incorporated outside the jurisdiction expose that company to local taxes?
• • When and where should companies register for VAT or other sales taxes? How are domestic internet sales taxed?
• • If an offshore company is used to supply goods over the internet, how will returns be treated for tax purposes? What transfer-pricing problems might arise from customers returning goods to an onshore retail outlet of an offshore company set up to supply the goods?

Gambling

• • Is it permissible to operate an online betting or gaming business from the jurisdiction?
• • Are residents permitted to use online casinos and betting websites? Is any regulatory consent or age, credit or other verification required?

Outsourcing

• • What are the key legal and tax issues relevant in considering the provision of services on an outsourced basis?
• • What are the rights of employees who previously carried out services that have been outsourced? Is there any right to consultation or compensation, do the rules apply to all employees within the jurisdiction?

Online publishing

• • When would a website provider be liable for mistakes in information that it provides online? Can it avoid liability? Is it required or advised to post any notices in this regard?
• • If a website provider includes databases on its site, can it stop other people from using or reproducing data from those databases?

Dispute resolution

• • Are there any specialist courts or other venues in your jurisdiction which deal with online/digital issues and disputes?
• • What alternative dispute resolution (ADR) methods are available for online/digital disputes? How common is ADR for online/digital disputes in your jurisdiction?]