Legal Aspects of Internet and Electronic Commerce
The advent of the Internet, together with the revolutionary development of e-commerce, have compelled legislators, scholars and practitioners to adapt traditional rules and theories to the new challenges posed by digital technologies. Despite all the efforts, the particular characteristics of the cyberspace created substantial legal lacunae, posing two fundamental policy questions: how (much) should we regulate the Internet? And which criteria should we follow when selecting a specific regulatory (or deregulatory) option?
The course aims to provide a comprehensive picture on the past, present and future answers to these interrogatives offered in the European Union and the United States. We will commence with a brief overview of the debate concerning the pros and cons of legislative intervention and party autonomy in the cyberspace. Then, we will focus on how traditional private law institutions have been adjusted to adequately function in the digital ambience, examining substantive law topics such as the enforcement of intellectual property against the new possibilities of infringement offered by the Internet (e.g. peer-to-peer downloads, linking, framing, meta-tagging, ad-words etc.); domain dispute resolution and its connection with traditional trademark law; the direct and contributory liability of Internet Service Providers (ISPs) and its policy implications; the protection of the digital person, with a focus on privacy, defamation and spam cases. The course will then analyze the most controversial elements of the regulation of e-commerce, such as contract formation, electronic signature and consumer protection. Last, it will conclude with an overview of recurrent jurisdictional and conflict of laws problems in the digital environment, with a focus on the most recent judicial trends and their impact on the goals pursued by national and supranational regulations of the cyberspace.
Each subject will be studied in a comparative perspective, taking into account the accomplishments of international or regional harmonization, the factors influencing the level and intensity of the regulation, and the policy rationale supporting each regulatory option.
Ability to understand how private law categories and rules vary in the digital environment, and to select the right legal/interpretative tools to use in case of lacuna.
Ability to identify and understand the conflict of laws and jurisdictional problems arising on the Internet and to solve them correctly.
Ability to analyze the different regulatory models proposed at a national and supranational level, to assess their rationales and to argue on their strength and weaknesses.
Assessment will be based 70% on a written final exam (two hour closed book in-class exam, with two short-answer questions and a case study) and 30% on class participation.