Operators of websites and those engaging in e-commerce are potentially promoting goods and services to, and conducting business with, businesses and consumers in many countries and territories around the world. Laws and procedures vary from country to country around the world and therefore business activity that is lawful in one place might expose operators of websites to civil or criminal liabilities elsewhere. Different decisions in different countries give some guidance as to how the courts are dealing with these issues, but no common trends are emerging.

One of the earliest cases illustrating the dangers of operating a website is that of Virgin Atlantic in 1996. Here an advertisement on the United Kingdom site for low cost flights to New York contained outdated information. Someone in the United States relied on the information to their detriment and this was held to be in breach of US advertising law.

In the 1999 US case of People v. World Interactive Gaming Corporation the court found a New York corporation (and its directors) to be in breach of New York gaming laws notwithstanding the fact that the site was operated by an Antiguan corporation from Antigua. The facts are as follows. Golden Chips Casino Inc ("GCC") is an Antiguan corporation licensed to operate a land based casino in Antigua. GCC is a wholly owned subsidiary of World Interactive Gaming Corporation ("WIGC"). Although GCC operated the site from servers based in Antigua, WIGC was said to be the alter ego of GCC. WIGC assisted the set up of the site in Antigua and, significantly, promoted the site in New York. The case is a significant warning to offshore gaming sites that they may well breach laws in countries to which the sites are directed.

In the UK case of Victor Chandler International v. Customs & Excise earlier this year the Court of Appeal reached a similar result, although based on somewhat different facts. In this case Victor Chandler, based in Gibraltar, circulated in the United Kingdom electronic messages promoting gambling. The advertisements were not transmitted over the Internet but were instead sent by means of the "Teletext" system which operates on UK televisions. The messages were sent from servers in Gibraltar to Teletext's central editing system in the UK. Teletext then distributed the advertisements to its databases for access by Teletext's users. The issue was whether the process by which the data was sent by Victor Chandler to computers in the UK and made available for viewing on UK monitors amounted to the "issue, circulation or distribution in the United Kingdom of advertisements or other documents inviting or otherwise relating to the making of bets& " in breach of section 9 of the Betting and Gaming Duties Act 1981. The court found that the preparation of electronic messages outside the UK and causing them to be sent by telecommunication to the UK can constitute the doing of an act "in" the UK and can therefore be in breach of the Act.

In contrast to these decisions, in the case of Euromarket Designs Incorporated v. Peters the use of trade marks outside the United Kingdom was found not to be use in the United Kingdom notwithstanding the fact that the website in question could be accessed from the United Kingdom.

The recent ruling in this case was an interim ruling ahead of any trial on an application by the claimant for summary judgement. The claimant operated a chain of stores in the United States under the name "Crate & Barrel". It sold a wide variety of household goods and furniture and had a registered trade mark in the United Kingdom. The defendants ran a shop in Ireland also called "Crate & Barrel". The defendants did not have any business operating in the United Kingdom but did have a website promoting its shop in Dublin. The claimant alleged that the use of the trade mark "Crate & Barrel"on the website infringed the United Kingdom trade mark.

The judge did not feel capable of fully resolving the issue in the context of an application for a summary judgement, but he did make some interesting comments. The judge considered that given the website address, www.crateandbarrel-ie.com and that the home page made it clear that the site related to a real world shop, users would realise that the shop was promoting a shop in Ireland.

The judge agreed with an analogy put forward by the defendants that the Internet is really no more than a telescope allowing users to peer into the shop in Dublin from the United Kingdom. The website does not amount to a shop front in the United Kingdom.

The only real trend that can be ascertained from these and other cases is that there is no global trend emerging. Each case seems to revolve on its particular facts. All the cases do its highlight the needs to consider carefully all markets in which any particular site is likely to be access to guard against for and file of a civil and criminal laws.

First published in E-lawasi@ in November 2000.



Matthew Laight

China and Hong Kong

Call me on: +852 2248 6000