9th Greek Australian Legal and Medical Conference
Rhodes, Greece 2003

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LEGAL LIABLILITY FOR INTERNET BASED CROSS-BORDER PROVISION OF MEDICAL ADVICE, INFORMATION AND PRODUCTS*

Mr Dan Svantesson**

PhD student at UNSW, Sydney Australia

Our world is becoming increasingly globalised. One area that has been dramatically transformed lately is the manner in which we communicate. The Internet is not the first revolution of the way in which we communicate; however, it certainly represents one such revolution. Never before has it been so easy, for so many, to access so much information. Furthermore, the Internet in general, and the World Wide Web in particular, makes it possible for ordinary people to become global publishers. In addition, the Internet also provides for cost-effective global commerce. Consumers can choose amongst what seems to be an ever-increasing amount of products and services, while remaining in the comfort of their own home. At the same time, businesses, even smaller sized ones, can access a global marketplace by comparatively simple and cost effective means.

Increasingly, the net is also being utilised by the health sector. In September 2001 an estimated 52% of Australian households were online.1 Studies conducted in the US has indicated that as many as 40 - 60 % of adults in the US have used the Internet for health information.2 It could consequently safely be suggested that there is a potentially huge market for health products, information and services being provided online.3 Such praxis give rise to complex legal issues, particularly when the borderless nature of the Internet is taken into account. Existing literature examining the legal implications of so-called telemedicine4, or e-health[1] , provide good discussions of the problems associated with the substantive law, but does not ordinarily explore the jurisdictional issues [2] that arise, in any great depth. [3] With this in mind, this paper will seek to provide an analysis of the jurisdictional issues that arise out of the provision of medical advice, information and products online and across borders. In doing so, focus is placed on the private law issue of liability. [4] Furthermore, a range of measures practitioners can take to limit their jurisdictional exposure will be explored.

The reader should note that Australian law constitutes the point of departure for the discussion, and is used to exemplify how domestic law addresses this area.

Liability

Civil liability suits, in relation to medical services, information or products are ordinarily suits in the tort of negligence. [5] As such, the same requirement is placed on the suit if it relates to telemedicine as if it was based on any other potentially negligent behaviour. Consequently, the medical practitioner must have owed the patient a duty of care. Such duties frequently exist automatically due to the character of practitioner-patient relations. Further, this duty must have been breached and that breach must have caused damages to the patient. The standard of care that will be imposed on providers of telemedicine is presently somewhat unclear. However, there is little to suggest that the duty of care would be lower than, for example, in face-to-face consultations. [6] It is submitted that if telemedicine is carried out under circumstances that would justify a lower standard of care, [7] then telemedicine should not have been the preferred option in the first place.

As far as the jurisdictional issues involved are concerned, a court action arising from the provision of medical services and products is handled in the same manner as a court action arising out of the provision of other forms of goods or services – there are no separate jurisdictional rules for disputes involving medical element. Although there are differences in the substantive law relating to product liability claims, and claims arising out of the provision of advice and information, the jurisdictional rules are often the same. There is therefore no need, for the purpose of this paper, to distinguish between these three separate situations. However, another distinction must be drawn. When a product or advice causes harm, a plaintiff ordinarily has two options; to sue in contract or to sue in tort. The provision of medical products or services is almost exclusively founded on a contractual relationship between the provider and the consumer. The same cannot be said about the provision of medical information. Damages suffered from reliance on information provided on an entirely passive website, simply providing information, cannot be addressed by an action in contract. [8] Instead a plaintiff suffering damages in such circumstances would be limited to an action in tort. The choice affects the question of whether a certain court will exercise jurisdiction as well as the applicable choice of law rule.

Generally, an international dispute regarding liability, be it for products, advice or information, consists of four steps under private international law. First, the court in question decides whether or not it can exercise jurisdiction over the dispute. Secondly, the law to be applied, if the court decides to claim jurisdiction, is identified. Thirdly, the court examines whether it can and should decline to exercise jurisdiction over the dispute. After that, if the court decides it can exercise jurisdiction, the substantive case is heard (i.e. the actual liability dispute is adjudicated). That is, however, not part of private international law. Last, the judgment rendered in the substantive case is, if it can successfully be done, recognised and enforced in a state in which the defendant has assets.

Jurisdiction

  • Regardless of whether a plaintiff sues in breach of contract or torts, the first issue the court will consider is whether or not it can exercise jurisdiction over the dispute. In Australia, the courts jurisdiction is determined in legislation, and different courts have slightly different rules on the matter. A common feature, however, is that courts can exercise jurisdiction over a contractual dispute [9] when:
  • The contract was formed within the forum – A contract is formed where and when the last act necessary for the creation of a binding obligation between the parties took place. [10] That is said to mean that a contract is formed where and when the offerer receives the offeree’s acceptance. [11] It is widely acknowledged that electronic communication is received where the addressee has its place of business, unless otherwise agreed. [12] As advertisement on a website normally falls into the category invitation to treat rather than offer capable of acceptance, a contract would normally, following this principle, be considered to be entered into in the buyers forum. However, an invitation to treat can, under certain circumstances, be treated like an offer. [13] Thus, in the latter situation the contract would be considered to been formed in the seller’s forum. It should also be noted thatan acceptance with content that is materially different from the content of the offer (i.e. a counter-offer) would alter the location of the formation of the contract. For example, if the buyer responds to the seller’s offer with a counter-offer, which in turn is accepted by the seller, the contract is considered to been formed in the buyer’s forum. With this in mind, it is always vital to determine whether the text in question (i.e. the electronic message) constitutes a valid offer, a valid acceptance, a counter-offer or an invitation to treat;
  • The contract is governed by the law of the forum – As discussed below, a court that can exercise jurisdiction over a certain dispute must determine which law it should apply. In relation to contractual disputes, the court has to identify the proper law of the contract. Under Australian jurisdictional law, [14] a court can exercise jurisdiction if the proper law of the contract is the law of the forum in which the court is located; [15]
  • The contract nominated the forum as appropriate – It is common for contracts to include choice of forum clauses, and as will be discussed below, choice of law clauses. Contracts for the provision of medical advice or products are no different. [16] In these situations it is said that the parties has submitted to the jurisdiction of the court, by agreeing to do so; [17] and
  • The contract was broken within the forum – A contract can be breached either through a certain activity, or inactivity. In the first case, it would ordinarily be relatively easy to identify the location of the breach. In the latter situation, the breach is considered to have taken place where the contractual obligation in question was due to be performed. [18]

In disputes in tort, a court can exercise jurisdiction when:

  • The tort was committed within the forum – A court in Australia can exercise jurisdiction over a dispute arising from a tort committed within Australia. It is consequently necessary to determine where a medical practitioner, situated in state A, practises medicine, when providing a patient in state B with medical advice. Case law has illustrated that the provision of negligent advice (through commission or omission) takes place where the recipient is located as long as the one giving the advice could reasonably anticipated the advice to be received there. [19]

It is further necessary to determine where product liability arises. Also for this latter question, answers can be found in case law. In Distillers Co. (Biochemicals) Ltd. v. Thompson[20] a company located in England had supplied a preparation known as Distaval to Australian consumers via an Australian company. The Distaval bought and consumed by the plaintiff’s mother in New South Wales, during pregnancy, caused the plaintiff to be borne with defective eyesight and without arms. The English manufacturer had provided no warning and it was held that the tort was committed in Australia where the plaintiff’s mother had purchased the drug without being informed about the risks; and

  • The proceeding is brought in respect of damage suffered within the jurisdiction [21] – In many cases it will, however, not be necessary to identify the location of the tort since the court rules of the Federal Court, and the courts of the Northern Territory, New South Wales, Queensland, South Australia and Victoria, provide for jurisdiction based on that damages has been suffered within the forum. [22] This is a potentially very wide ground for jurisdiction. Damage suffered wholly or in part, within the forum is a ground for jurisdiction regardless of where the tort was committed. This means that a person getting medical advice from a practitioner outside Australia, and sufferer damages from that advice, always has the option of suing in his/her home forum, as long as that is one of the Australian states or territories that recognise this ground for jurisdiction. However, it has even wider implications in a health context. If an Australian obtains medical advice or services abroad, and then suffers damages in his/her home forum, he/she can sue in his/her home forum, as long as that is one of the Australian states or territories that recognise this ground for jurisdiction.

A court can only ever exercise jurisdiction if the domestic laws of the forum, in which the court is located, allows for it to do so. Putting the above-listed grounds for jurisdiction, in the context of somebody providing medical advice, information or products from outside of Australia, it is obvious that the Australian rules have a very wide reach (particularly in relation to those courts that allow for jurisdiction based on the location of the damages). However, such wide jurisdictional rules are not particularly uncommon. [23]

Choice of law

A court will also have to identify which substantive law should be applied in resolving the dispute. In contractual disputes, the court would seek to identify the so-called proper law of the contract. The proper law of the contract can be determined in three different ways: Express choice of the proper law, inferred choice of the proper law or the objective approach to the proper law.

In common law there is a long history of the express choice of law. Already in 1796 an English court dismissed a Dutch seaman’s action at the English court, due to the fact that the contract expressly stated that Dutch law should be applied. [24] The right of the parties to nominate the law has continued to be seen as important, and is normally only limited in specific circumstances. It is often held that the express choice of law shall not violate public policy. [25] However, there are also other limitations to the express choice of law.  For example, if the choice of law clause is rendered ambiguous, [26] or if the choice of law clause nominates ‘a floating proper law’ [27] , the choice of law clause will not be recognised as valid. Just as in relation to choice of forum clauses, the effect of clauses nominating a certain law, as the applicable law, are only valid in the absence of mandatory rules to the contrary. It is common for the choice of law rules of states to set aside choice of law clauses in consumer contracts, as many states have mandatory consumer protection rules. [28]

Inferred, or implied, choice of the proper law is used in the absence of a valid express choice of proper law. The court has to interpret the parties intended choice of proper law, based on the facts of the case. Factors that might affect the interpretation include, for example, the nationality of the parties, the location of where the contract was entered into, the currency of the price, the currency of payment, the location of payment and also whether the parties have stated any preferred forum in the contract. [29]

If the proper law cannot be determined, either by the express choice of law or the inferred choice of law, the court will resort to an objective approach in determining the proper law. The court will try to determine the closest and most real connection a contract has to a legal system. In doing so, no single factor is determinative, but rather the court will look at all the circumstances and attempt to identify which law a just and reasonable person would have intended if thought would have been given to the matter at the conclusion of the contract.

In relation to torts a different approach has been adopted. Under Australian law, the law to be applied is the so-called lex loci delicti – the law of the place of wrong. That is a fairly new rule in Australia, [30] and was not established for international cases until about a year ago. [31] Hence, this rule is still rather untested in Australia. It also requires further explanation; What is the place of wrong if a patient in state B suffers damages due to advice, or a product, provided by a medical practitioner in state A?

Determining the place of wrong, as a step in identifying the applicable law, is ordinarily done, it would seem, in the same manner as determining the place for the sake of jurisdiction. [32] As far as medical products are concerned there are no reasons to assume that the views expressed in the Distillers[33] case, discussed above, could not equally be applied in relation to the choice of law – the place of wrong is the place where the product is purchased (in the case warnings about the product should have been provided). Regarding medical advice it has, as discussed above, been held that the tort is committed where the receiver of the advice is located, provided that the one giving the advice could reasonably anticipated the advice to be received there. [34]

Declining jurisdiction

While the jurisdictional tests and the choice of law often are structured in very similar manners in different states, the courts’ discretion to decline jurisdiction varies considerably from state to state. Indeed, the courts of some state do not have any discretionary power to decline jurisdiction. [35]

In common law countries, courts have the option of declining to exercise jurisdiction if they find themselves to be a so-called forum non-conveniens. The interpretation of this concept, however, varies greatly. In most common law countries, a court will decline jurisdiction if there is another more appropriate forum, while under Australian law, a court will decline jurisdiction only if the court is a clearly inappropriate forum. This restrictive approach has been criticised and in a case last year, two of the judges of the High Court clearly took the view that Australia should apply the more appropriate forum-test as is done in the majority of the common law world. [36] Nevertheless, in the recently decided Gutnick[37] case, the clearly inappropriate forum-test was reaffirmed and, consequently, it will probably not be departed from in the near future.

One of the factors taken into consideration when determining whether an Australian court is a forum non-conveniens is the applicable law. However, case law shows that the mere fact that an Australian court will have to apply foreign law does not make it a clearly inappropriate forum. [38] A range of other factors may also be taken into account in determining the issue of forum non-conveniens. [39] In broad terms, the following categories of factors are of relevance: [40]

  • The connection between the selected forum and the subject matter of the dispute as well as the parties;
  • Judicial advantages and disadvantages for the parties’, incurred if the forum chooses to exercise jurisdiction;
  • The availability of alternative forums; and
  • The substantive law to be applied.

It is hard to think of instances where conditions specific to the cross-border provision of medical products or services would give rise to other considerations than the ones discussed above.

Recognition and enforcement

Recognition and enforcement is an indispensable part of any international dispute. After all, a judgment is only valuable if it can be enforced. [41] Getting a judgment recognised and enforced in a foreign forum is not always easy and, in a sense, the general complexity of getting foreign judgments recognised and enforced in a forum in which the defendant has assets, works as a protection for defendants in international litigation.

There are two ways of getting a foreign judgment recognised and enforced in Australia; recognition under common law and recognition under statute. Statutory recognition is regulated by the Foreign Judgments Act 1991 (Cth), and is a considerably less complicated process than common law recognition, but is only open to judgments from certain countries. [42] Common law recognition is open to judgments from all countries, but is limited in other regards. For a judgment to be recognised under common law the following conditions must be met:

  • Jurisdiction – The foreign court must have had jurisdiction, recognised by the Australian court, over the matter. But the jurisdictional grounds recognised by Australian courts, in this context, are not the same as the jurisdictional grounds discussed above. While an Australian court would, itself, exercise jurisdiction under the grounds outlined above, the same court would not recognise a foreign court’s jurisdiction based on all of those grounds. Although this appears both strange and unjust, it should be borne in mind that this system is commonly found.

The grounds for jurisdiction recognised by Australian courts, in relation to the recognition and enforcement of a foreign judgment, are: jurisdiction based on the presence or residence of the defendant being within the foreign forum and jurisdiction based on the voluntary submission by the defendant to the foreign court;

  • Final and conclusive – The foreign judgment must be final and conclusive (e.g. a judgment subject to appeal could not be recognised and enforced);
  • Identical identities – The parties to the enforcement proceedings must be the same as the parties in the original proceeding; and
  • Fixed sum – The judgment must be for a fixed, or readily ascertainable, sum of money.

A selection of protective steps medical practitioners can take

Medical practitioners involved in telemedicine can take steps to minimise the legal risks they are exposed to. The first step must be to develop an understanding of what these risks are. Current work of academics, NGOs as well as governmental agencies help to provide the necessary information.

Disclaimers

Since a website can be accessed from anywhere in the world and thus have potential legal consequences in any State, businesses have in many cases taken measures to limit those consequences by placing legal disclaimers on their websites.

Great variations exist from state to state in terms of the extent to which a disclaimer may limit liabilities. To construct one disclaimer that would be globally effective is probably impossible and would, of course, be very costly since it would require knowledge of every legal system in the world. Another problem is language. A disclaimer written in Danish, for example, would probably have little effect in an Australian court.

Disclaimers that include a choice of law, or forum, clause face several difficulties. First of all, as mentioned above, such clauses are not recognised in all situations, [43] and generally the validity of the clause would be determined not by the law stated in the clause but according to the law of the state where the affected party is located. It might also be very difficult to show that the visitor to the website not only read but also accepted the clause(s) in question.

The effectiveness of the disclaimer might also vary in relation to what liabilities the disclaimer actually tries to avoid. Beside the choice of law/forum type disclaimers discussed above, there are typically four different types of disclaimers:

  • Responsibility statements – It is very common, on all sorts of websites, to have links to other websites. A responsibility statement typically states that the uploader of one website does not take any responsibility for the content on the websites to which it is linked;
  • Liability statements – These attempt to disclaim liabilities arising from the website contents. The effectiveness of such disclaimers depends very much on the types of liabilities they address. Obviously if persons could injure themselves or suffer physical damage to property as a result of relying on the content of a website, a disclaimer for such liability might not have any effect at all. Further, some states may even make it an offence to seek to restrict certain types of liability. This is, of course, of particular relevance in relation to the health sector;
  • Territory statements – Given the technical difficulties in limiting access to a website using geographical criteria, there is increasing use of disclaimers to the effect that the website will only be open for dealings with persons from certain countries. Such limitations can obviously be desirable in various respects; e.g. to limit the risk of trademark infringements and/or to limit the risk of advertising something that is illegal in particular states; and
  • Copyright statements – It is also fairly common for the disclaimer to include, or be displayed in conjunction with, some statement as to how the information on the website may be used.

The legal validity of disclaimers has been discussed in several Australian cases. They have been held to have some value, for example, in relation to s 52 of the Trade Practises Act 1974 (Cth). [44] But it is clear that their value is predicated on their being adequately brought to the attention of the persons to whom they are addressed. [45] And it is clear that the weight given by a court to disclaimers will depend on an assessment of all of the circumstances of the particular case. [46] In relation to a territorial disclaimer, for instance, a court is unlikely to attach much weight to a statement on a website stipulating ‘Intended for UK residents only’, when the website operator targets Australian users (e.g. by sending email advertisements to the latter).

Other forms of soft protection

Disclaimers are not the only form of, what suitably can be referred to as, soft protection [47] that deserves mentioning. The difficulty of proving that a particular disclaimer has actually been brought to the other party’s attention has prompted other solutions. It is common for websites to include so-called click-wrap agreements (i.e. non-negotiated contracts of adhesion that normally are entered into when one party clicks on the I agree or Accept button on a website). Typically, the person is presented with a more or less extensive list of clauses and has to, without the opportunity of negotiations, either accept or decline to proceed with whatever the contract relates to. There is only a limited amount of case law on this type of contracts of adhesion, and different courts have taken different approaches. Sometimes the click-wrap contract is held to be valid, and sometimes not. [48] That is no different than with other forms of contracts. What is important to remember is that there is no general rule against this relatively novel way of forming contracts. The problem, however, is that more often than not, people in general, and arguably consumers in particular, simply do not take the time to read the agreement and does not have the knowledge to adequately understand the implications of the agreement. In research done on this topic, 90% of the respondents indicated that they never read the whole agreement; while at the same time 64% indicated that they always click I agree. Furthermore, 55% did not believe that they entered into a legally binding contract when clicking I agree! [49]

One of the key motivations behind click-wrap agreement is that it would be impractical for businesses entering into agreements with a large number of clients to have to negotiate each contract on an individual basis. However, it is submitted that this obstacle relates more to business practicalities than technical considerations. Technically, there is nothing preventing, at least a form of, negotiations. A buyer could very well be presented with options in the contracting part of the website. For example, the buyer could perhaps choose between a range of different laws to apply to the contract, and the price could be automatically adjusted to reflect the seller’s risks. Similar applications are used, for example, in the sale of computers online. The buyer can assemble a computer choosing the components he/she desires and the price is adjusted to reflect the chosen combination of components. [50] By adopting this sort of measures, a form of negotiations could take place, and the simple fact that the consumer gets to make a conscious and active selection, might increase awareness of the importance of choice of forum and law clauses, for example. However, that is at the same time an obstacle for the introduction of this sort of negotiated online contracts. Having to make a lot of choices might perhaps scare off potential buyers, and thus works to the business’ disadvantage.

Having noted that, it is submitted that the most serious obstacle against the suggestion made above, is that for the business to make informed decisions as to, for example, which laws to include as options and which price increase/decrease that should be associated with which law, would require very sophisticated and costly legal advise. Consequently, what is technically possible might not be practical out of a business perspective.

A variation of the above is for businesses to include a menu in which the consumer had to indicate from which state he/she makes the purchase or requests the service. It could then be stated that only people from the countries in the menu would be allowed to make purchases or obtain advice on the website. That way, a business could accurately and cost-effectively control which forums it exposed itself to.

Technical steps

Using technology to pinpoint the geographical location of those active on the Internet is a fairly new phenomenon. In older Internet commentaries it was frequently said to be impossible. Indeed, the impossibility of linking those active on the Internet, to a geographical location has been said to be a distinctive feature of the Internet. [51] However, geo-location technology is becoming increasingly accurate, and while it will always be possible to circumvent this sort of technologies [52] , their accuracy might be sufficient for their purposes.

The health care sector could, for example, apply geo-location technologies for the identification of the location from which potential patients access the website. Such technical means could dramatically increase the provider’s ability to avoid practising medicine in forums deemed undesirable.

However, even if this sort of technologies were widely utilised and worked to a satisfactory degree, it does not solve all problems associated with the special characteristics of the Internet. For example, the simple fact that an operator of a medical website is aware of the potential patient’s physical location does not mean that he/she can make an informed decision as to whether or not it is safe to supply the potential patient with medical advice. To make such an decision, the website operator would need to know both the substantive laws of the location from which the potential patient is located and that country’s private international law rules. Bearing in mind that potential patient might be geographically located virtually anywhere in the world, the website operator would arguably have to know all substantial and procedural laws of all the countries on earth – an unrealistic task.

Final remarks

As has been illustrated above, the cross-border provision of medical advice, information and products online, give rise to complex legal issues, particularly when the current borderless nature of the Internet is taken into account. In adopting telemedicine, a practitioner has to be aware of the potential risks involved, and should take the available steps to minimise the risks. However, it is submitted that the current legal uncertainty is a greater obstacle, for the positive development of large-scale telemedicine, than the actual risks involved – solutions can be found. This paper has sought to address a small part of this uncertainty, and more importantly bring attention to the need for a widespread discussion leading to legal certainty.



*     At the time the proposal for this conference paper was written, the title used was Law & Medicine in a Globalised World - Consequences of the proposed Hague Convention. However, dramatic changes to the scope of the proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, has made equally dramatic changes to the scope of this paper necessary.

**   Dan Svantesson is a PhD research student at University of New South Wales, Australia. He is also a research associate of the Baker & McKenzie Cyberspace Law and Policy Centre, and the winner of the Anastasios Dontas Travelling Fellowship, Law, for 2003.

1     NOIE, Current State of Play(April 2002),

http://www.noie.gov.au/projects/framework/Progress/
ie_stats/CSOP_April2002/CSOP_pages/households_online.htm
.

2     NOIE, Findings from national workshops, 1998-1999

(http://www.noie.gov.au/projects/ebusiness/Developing/
ehealth/rise_of_ehealth/ehealth3.htm
)

3     The distinction between service and information, drawn in this paper takes its base in the difference between what can be seen as targeted information (e.g. when a doctor provides a certain patient with information, or encourages that person to do something etc.), and untargeted information (e.g. general medical advise provided on a website to the world at large). Targeted information falls into the category services, while untargeted information is classed as information.

4     Defined as: The delivery of health services (including clinical, educational and administrative services), at a distance, through the transfer of information, including audio, video and graphic data, using telecommunications, and involving a range of health professionals, patients and other recipients. (NOIE, The Telemedicine Industry in Australia: From fragmentation to integration(February 1998)

http://www.noie.gov.au/publications/NOIE/ehealth/fragmentation_to_integration.pdf).

Note, however, that the definition of this term varies depending on the source.

[1]     Defined as: health’s version of e-commerce: that is, conducting health business electronically. E-health is the combined use of electronic communication and IT in the health sector, both at the local site and at a distance for clinical, educational and administrative purposes. (NOIE, From Telehealth to E-health: the Unstoppable Rise of E-health.(1999), http://www.noie.gov.au/projects/ebusiness/Developing/ehealth/
rise_of_ehealth/unstoppable_rise.htm
)

      Note, however, that the definition of this term varies depending on the source.

[2]     The term jurisdictional issues is used here as synonymous with private international law and conflict of laws (i.e. it covers jurisdiction, choice of law and the recognition and enforcement of foreign judgments).

[3]     For examples of literature that provide very useful discussions of the legal issues involved, but do not address the jurisdictional issues that arise, see for example: Bennett, New Challenges for Old Laws? The Development of E-Health in Australia, Sydney Law Review (2001) Vol. 23 pp. 405-422, Ashley, Telemedicine: Legal, ethical, and liability considerations, Journal of the American Dietetic Association (2002) Vol. 102 No. 2 pp.267-269. In relation to the area of licensing, however, also the jurisdictional issues have been discussed in detail, in for example: Jacobson/Selvin, Licensing Telemedicine: The Need for a National System; Telemedicine Journal and e-Health Vol. 6 No. 4 (2000).

[4]     The provision and promotion of cross-border medical services and products may, of course, also give rise to, for example, competition (or as it also is referred to anti-trust) disputes, privacy related disputes, advertisement issues and licensing questions. These types of disputes are not included in the scope of this paper. Nor are criminal actions arising from the provision of medical advice, information or products.

[5]     There is a wealth of literature dealing with medical negligence. See for example: Forrester/Griffiths, Essentials of Law for Health Professionals (Marrickville: Harcourt Australia, 2002) pp. 85-121.

[6]     Bennett, New Challenges for Old Laws? The Development of E-Health in Australia, Sydney Law Review (2001) Vol. 23 p. 417.

[7]     Examples could include that: video-consultation may not be as effective in eliciting the patient history, the doctor may be unable to elicit the physical signs as accurately, the X-ray will not have the same resolution, and hence the diagnosis and treatment advice may not be as accurate as for a face-to-face consultation. ANZ Telehealth Committee, Legal and Legislative Issues Working Group, Telehealth and the Law (February, 1999),

      http://www.telehealth.org.au/discussion_papers/th&law.html.

[8]     Unless, of course, the website is a subscription service.

[9]     Including disputes relating to the enforcement, rescission, dissolution, rectification or annulment of a contract, or otherwise affecting a contract, or are for damages or other relief in respect of a breach of a contract. Nygh/Davies, Conflict of Laws in Australia 7th ed., (Sydney: Butterworths, 2002) p.57.

[10]    Nygh/Davies, Conflict of Laws in Australia 7th ed., (Sydney: Butterworths, 2002) p.58.

[11]    Marasinghe, Principles of International Trade Law (Singapore: Butterworth Asia, 1998) p. 30.

[12]    Electronic Transactions Act1999 (Cth) s. 14(5b). See also the UNCITRAL Model Law on Electronic Transactions.

[13]    It can obviously be discussed whether an invitation to treat that is so similar to an offer, that it gets treated as an offer instead of as an invitation to treat, really is an invitation to treat and not an offer in the first place. What really matters is the distinction between an offer and a genuine invitation to treat and not the distinction between an offer and an invitation to treat that is treated as an offer.

[14]    Except in the Australian Capital Territory.

[15]    This leads to a circular reasoning; A court with jurisdiction to determine a dispute has to identify the proper law of the contract. At the same time, the court does have jurisdiction if it identifies the proper law as the law of the forum in which the court is located. Consequently, an Australian court faced with a contractual dispute of an international nature, would necessarily always look at both the issue of jurisdiction and the issue of applicable law at the same time.

[16]    See for example: Doctor Global (http://info.doctorglobal.com/).

[17]    Many states, particularly in Europe, provide for an exception to the parties’ right to agree on a certain forum for the resolution of a possible dispute, in consumer contracts. This is motivated by the fact that a consumer is in no position to negotiate the contract clauses and the contract consequently only represents the will of one of the parties – the seller. See, for example, the Brussels Regulation 44/2001 Articles 13-15.

[18]    Nygh/Davies, Conflict of Laws in Australia 7th ed., (Sydney: Butterworths, 2002) pp. 61-62.

[19]    Voth v Manildra Flour Mills Pty Ltd. [1990] 171 CLR 538.

[20]    [1971] AC 458.

[21]    Available under the court rules of the Federal Court, and the courts of the Northern Territory, New South Wales, Queensland, South Australia and Victoria.

[22]    This sort of reasoning was recently upheld in a defamation case. See: Dow Jones & Company Inc v Gutnick[2002] HCA 56.

[23]    The jurisdictional rules of several states in the US, for example, arguably provide for even wider jurisdictional claims. See further: Spang-Hanssen, Cyberspace Jurisdiction in the U.S. – The International Dimension of Due Process (Oslo: Norwegian Research Center for Computers and Law, 2001) pp. 187-188. Also the jurisdictional rules for Greek courts provide for rather wide jurisdictional claims (see further: Kerameus, Introduction to Greek Law(Deventer: Kluwer Law and Taxation Publishers, 1993) p. 271).

[24]    Gienar v. Meyer, 1796 2 HB 1 603; 126 ER 728 (as found in Marasinghe, Principles of International Trade Law(Singapore: Butterworth Asia, 1998) p. 16).

[25]    Marasinghe, Principles of International Trade Law(Singapore: Butterworth Asia, 1998) p. 16.

[26]    Marasinghe, Principles of International Trade Law(Singapore: Butterworth Asia, 1998) p. 20.

[27]    Marasinghe, Principles of International Trade Law(Singapore: Butterworth Asia, 1998) p. 21.

[28]    E.g. Trade Practices Act1974 (Cth) s. 67.

[29]    Marasinghe, Principles of International Trade Law(Singapore: Butterworth Asia, 1998) pp. 21-24.

[30]    Established in John Pfeiffer Pty Limited v Rogerson[2000] HCA 36 for domestic cases.

[31]    Regie National des Usines Renault SA v Zhang[2002] HCA 10

[32]    See further: Nygh/Davies, Conflict of Laws in Australia7th ed., (Sydney: Butterworths, 2002) p. 421.

[33]    Distillers Co. (Biochemicals) Ltd. v. Thompson[1971] AC 458.

[34]    Voth v Manildra Flour Mills Pty Ltd. [1990] 171 CLR 538.

[35]    This is true in relation to many, not to say most, civil law countries. Greek law, for example, does not provide the courts with any discretionary power to decline jurisdiction. At least not in a manner that can be compared with the common law concept of forum non conveniens. For further information on this refer to: Fawcett, Declining Jurisdiction in Private International Law (Oxford: Clarendon Press, 1995) pp. 235 – 257.

[36]    Regie National des Usines Renault SA v Zhang [2002] HCA 10

[37]    Dow Jones & Company Inc v Gutnick [2002] HCA 56

[38]    Regie National des Usines Renault SA v Zhang [2002] HCA 10

[39]    The most recent Australian case that dealt with this issue in great detail was the Supreme Court of Victoria’s decision in the defamation dispute between Victorian businessman Joseph Gutnick and US publishing company Dow Jones. For a discussion of which factors Justice Hedigan, took into account in Gutnick v. Dow Jones [2001] VSC 305 see: Svantesson, The Gutnick v. Dow Jones decision – Which questions were answered and which were not?, Internet Law Bulletin Vol. 4 Issue 7, Sydney, pp. 73 – 78 ).

[40]    Nygh/Davies, Conflict of Laws in Australia 7th ed., (Sydney: Butterworths, 2002) p. 129.

[41]    Of course, also a judgment that cannot be enforced can have a moral value. For example, a judgment in favour of a plaintiff in a defamation proceeding might very well carry great value as ‘evidence’ that the defamatory material was untrue. However, this sort of moral value should be kept separate from the legal value discussed in the text above.

[42]    Greece is not included in the scheme. For a complete list, and more details, refer to: Nygh/Davies, Conflict of Laws in Australia 7th ed., (Sydney: Butterworths, 2002) pp. 199-209.

[43]    See e.g. s 67 of the Trade Practices Act 1974 (Cth) referred to above. See also the Brussels Regulation, also referred to above.

[44]    See Motor Accidents Authority of New South Wales v North Cronulla Investments Pty Ltd[1999] FCA 972.

[45]    Britt Allcroft (Thomas) LLC v Miller [2000] FCA 699.

[46]    Britt Allcroft (Thomas) LLC v Miller [2000] FCA 699.

[47]    As opposed to hard protection provided by technical solutions.

[48]    The available case law is mainly from the US.

[49]    Gatt, The Enforceability of Click-wrap agreements, Computer Law & Security Report Vol. 18 No. 6 p. 408

[50]    See for example: http://www.dell.com/.

[51]    Johnson/Post, Law And Borders--The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).

[52]    As stated by Goldsmith/Sykes, The Internet and the Dormant Commerce Clause 110 Yale Law Journal 785 (2001): [M]any will point to the imperfections and conclude that the technologies won't work or are infeasible or useless. This is a persistent error in thinking about Internet regulation; the conclusion simply does not follow from the premise. Regulatory slippage is a fact of life in real space and cyberspace alike. We do not conclude from the fact that minors obtain and use fake identification to purchase beer, or that thieves sometimes crack safes, or that gray market goods are imported into the United States, that drinking laws and criminal laws and trademark laws are useless. Nor should we assume that imperfections in Internet identification and filtering technology render these technologies useless. Regulation works by raising the cost of the proscribed activity, and not necessarily by eliminating it. Computer savvy users might always be able to circumvent identification technology, just as burglars can circumvent alarm systems. But they do so at a certain cost, and this cost is prohibitive for most. (Footnotes omitted)

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