3 1 January 2001

News:

Yahoo has halted sales of Nazi memorabilia on both its French and US site but has asked a US Federal Court in California to rule that French Courts have no jurisdiction over the content of a US based company.

Deep Linking disputes look set to rise in Europe following two high profile actions, in one of which an injunction was obtained by online recruitment consultancy, StepStone in Cologne, Germany on 21 December against Danish media company OfiR.

The OECD Committee for Fiscal Affairs failed in their latest memorandum (22 December 2000) to resolve disagreements over whether the use of a web server in another country could create tax liabilities in that country.

Features:

A successful injunction and an effective solicitor’s letter do not make a precedent. Nevertheless the legal action taken by StepStone and Haymarket over the linking and framing of their websites does signify a shift in European e-commerce.

In December 2000 the German Government presented a bill concerning the revocation of the German Rebate Code and the Ordinance on Bonuses. Following the legislative procedure, the statutes are expected to become invalid later this year, which will lead to a liberalisation of German competition law.

Since last summer, the courts have had to deal with the question of whether generic domain names violate German unfair competition rules. Most courts based their judgements on the Hamburg Court of Appeal’s landmark case mitwohnzentrale.de, (“flatshare.de”, see E-Commerce Law & Policy 08/2000), which declared the use of a generic domain name by a competitor as infringing unfair competition laws.

The OECD Committee for Fiscal Affairs has, for some time, been discussing whether the mere use of computer equipment in another country could render a business user subject to tax there. In particular, they have been considering whether a web site server could constitute a “permanent establishment” and so make a business resident in Country A susceptible to tax in Country B through the mere use of a server located in Country B. Unfortunately, in their new Commentary (22 December 2000), the Committee has failed to produce a definitive view and so, like many tax questions, the answer remains “It all depends”.

At first glance a spider site appears to be of benefit to all concerned. From the consumer’s point of view, the spider site does all the “cyber leg work” by trawling all sites of interest and aggregating the information in one place. It then provides an easy to use search facility so you can search across all listed items from the web sites it has trawled to obtain exactly what you want and even compare information from other sites. Once you have made up your mind what you want to buy you can then link to the appropriate site and complete the transaction. Fantastic. The spider site owner gets traffic through his site and can thus attract advertising revenue. But what about the owners of the sites from whom the spider site has obtained information?

In the last year, billions have been spent on acquiring 3G licences. With the rates of subscriber growth in mobile telephony slowing, together with the falling average revenues per subscriber, the question everybody is asking is “How will these businesses recoup their investments?”. The growth of data services promises to be a valuable income stream for these licence-holders, however current legislation may prevent them from realising these potentially substantial returns.

Reverse search directories for electronic communication services are becoming widely and publicly available. In view of this, the European Commission has taken steps to address the issue of protecting subscribers’ privacy rights.

Dispute resolution procedures employed in the offline world reflect many years of evolution. So, are the needs of today’s society met by existing methods of dispute resolution?

In the first of a two part series, a WIPO panelist, who has decided on more than twenty cases examines the ICANN dispute resolution policy.