Editors --- "The Law of Electronic Commerce by Alan Davidson" [2010] JlLawInfoSci 8; (2010) 20(1) Journal of Law, Information and Science 243

• The Law of Electronic Commerce

The Law of Electronic Commerce

Alan Davidson

Cambridge University Press, Melbourne (2009) ISBN 978-0-521-67865-0

399 pgs (including index and appendices)

The Law of Electronic Commerce is an excellent introductory text to the developing field of ‘cyberlaw’, which can be taken to include a wide range of subjects, including: national electronic surveillance; privacy; defamation; and cybercrime. Davidson argues, convincingly, that aspects of these traditionally disparate legal disciplines have developed and been unified into a discrete and distinct body of law in the electronic environment. He points to a developing body of international and domestic jurisprudence – such as the Cybercrime Act 2001 (Cth) – which unifies, builds upon and refocusses traditional legal doctrines under the mantle of electronic commerce and cybercrime law.

Despite Davidson’s insistence that a discrete legal regime is evolving in the electronic environment, the style of his book does illustrate that cyberlaw is a new forum for old rules derived from almost every area of the legal arena. For instance, domain names are a concept entirely unique to the online environment, yet in resolving domain name disputes counsel have argued pre-existing doctrines including various proprietary interests and the tort of passing off. Rather than attempting to restate existing principles of law, Davidson chooses to focus on how the electronic age has created new and interesting legal problems and the international, legislative and judicial responses to them.

The Law of Electronic Commerce is written ‘specifically for legal practitioners and students.’ It is easy to read, the information is not presented too densely and there is no presupposed degree of technical knowledge. Nor does the book contain overly detailed explanations of the technology under contemplation. However, Davidson does discuss the broad technological and societal contexts within which a particular topic sits, making the information easy to follow. The ‘Further Reading’ list provided at the end of most chapters will also prove useful, particularly for students requiring more detailed information than the text, with minimal footnotes, provides. Davidson’s style is likely to find favour with students.

The book does not contain a glossary. However, technical terms are explained adequately where they appear and Chapters are self-contained in the sense that they do not presume knowledge from earlier chapters. This means that the text will not lose effectiveness if used in courses structured in a different fashion to the book itself. The headings are also sufficiently precise that one can easily navigate to a relevant section.

The book’s case list is relatively short and features a high proportion of case law from non-Australian jurisdictions, including New Zealand, US, UK, and India. Given the trans-jurisdictional nature of the subject matter, such an international focus is important, both for a proper understanding of the law, and the ability of domestic practitioners to draw on international examples in the absence of local precedent. The four appendices contain extracts from the Electronic Transactions (Victoria) Act 2000 (which has parallel legislation in every Australian jurisdiction), the UNCITRAL Model Law on Electronic Commerce, the Copyright Act 1968 (Cth) and the ICANN Uniform Dispute Resolution Policy (which deals with domain name disputes). The ease of access provided by the inclusion of the relevant sections is of obvious benefit to both practitioners and students.

The book is well structured with many of its 19 chapters logically flowing from one to the next. Contractual issues are covered in chapters 3–5, intellectual property is covered generally in chapters 6 and 7 and with specific application to domain names in chapters 8–10 which also looks at the tort of passing off. Conflicts of laws is addressed briefly in chapter 11, entitled Jurisdiction. This uses the tort of defamation as an example which is then expanded upon as a separate topic in chapter 12. Chapter 13 looks at privacy and data protection, 14 at email and online presence and 15 at national electronic surveillance. Chapter 16 examines cybercrime including child pornography and assisting suicide and 17 looks at the rules of evidence in respect of electronic records. Chapter 18 deals with censorship and chapter 19 canvasses the international responses and approaches to commercial conduct in the electronic age.

An interesting aspect of the text is that, in acknowledging the problems facing the individual, lawyer and regulator in these fields, Davidson argues that, in particular areas, self-regulation, rather than legislative intervention will be more appropriate. This harks back to the conclusion of the second chapter, entitled, ‘The Rule of Cyberspace’ which takes a somewhat philosophical and sociological approach as to how order may be generated in the chaos of the internet. He concludes that this may occur in three main ways: general use, legislation and governmental regulation, and self-developed protocols. For the most part, however, Davidson refrains from declaring how he sees the law developing or how he believes it should develop.

In conclusion, this book provides a well researched snap shot of where the law currently stands regarding a broad range of electronic issues. This makes it an excellent starting point for both students and practitioners.

Caitlin Dwyer, Honours Student, University of Tasmania