Argentina has ratified the WIPO conventions applicable to online content and practices. However, enforcement of these conventions is weak.
Key commercial contract considerations
Country-specific issues for online content
The Copyright Act provides a 'safe harbor’ regime for service providers ("carriage service providers" as defined in the Telecommunications Act 1997), which limits their liability for copyright infringement by their customers (ie, liability by authorizing the infringing acts of their customers). Service providers must satisfy certain criteria in order to be protected by this scheme. Recent case law has left open the possibility of service providers being found to have authorized copyright breaches through a failure to act against infringing customers.
Copyright holders may issue "take down notices" to internet service providers (ISPs) if, on reasonable grounds, they believe that there is infringing material located on a webpage or network that is under the control of the ISP. Upon recipient of this notice, the ISP is required to immediately remove or block the content and issue an infringement notice to the individual or entity that posted the material.
The E-Commerce Act (E-Commerce-Gesetz) also provides limitations of liability for the providers of routing, search engine, caching, hosting and linking services under specific requirements in case of infringements.
Book XII "Law of the Electronic Economy" of the Code of Economic Law provides several additional requirements regarding the information to be provided to conclude online agreements, including information about the service provider and the languages in which the agreement can be concluded.
Federal Decree No. 7,962/2013 establishes several rules for e-Commerce. There is certain information that must be included in the website (eg, supplier's name, address for contact, information on additional and ancillary costs included in the price) and the supplier shall comply with certain obligations in order to make the purchase process easier to the customer (eg, to include a summary of the contract highlighting the clauses that may limit any right and to maintain an electronic consumer attendance service). Also, Federal Law No. 10,962/2004, modified by Federal Law No. 13,542/2017, establishes rules for price disclosure in e-Commerce (eg, font size and position of the price).
In 2015, Brazil enacted Federal Law No. 12,965 on Civil Rights Framework for the Internet (Marco Civil da Internet) and its Decree No. 8,771/16, dated May 11, 2016. This federal law stipulates the following:
- Brazilian law and jurisdiction will be applicable if one of the parties engaged in the relation/service is located in Brazil
- Internet services providers shall be liable for third parties content, if such third party does not comply with a court's orders (for instance, for removal of content)
- Service/webpage may be shut down, by court order, if it does not comply with the law
- Collection of data must be strictly related to the purposes of the collection and may not be shared or transferred to third parties without prior consent of the individual on this regard or by another applicable legal basis, in accordance with the Brazilian General Personal Data Protection law (Federal Law 13,709/2018)
Generally speaking, the common law system has attempted to adapt contract principles to online transactions. However, different provinces have enacted a variety of consumer protection statutes that may modify or define the basis upon which an online transaction may be carried out. For instance, in Ontario it is necessary to consider the provisions of the Electronic Commerce Act 2000 and the Consumer Protection Act.
The law for the protection of consumers imposes certain conditions on the conduct of online sales.
The Chilean law furthermore provides for a limitation of liability for service providers on the internet if they comply with certain conditions. These vary depending on the type of service provider.
There are no specific regulations regarding online intellectual property protection. The general law for intellectual property in general, as well as data privacy apply.
Not applicable for this jurisdiction.
Law 1450 of 2011 has recognized the principle of neutrality, which dictates that users may use, send, receive and offer content, services or apps that are not illicit. In this regard, Resolution 3502 of 2011 of the Ministry of Telecommunications (MINTIC) determines that internet contents are governed by four principles:
- Free Choice: the user may use, send, receive or offer any content, unless they are forbidden by the law or by the order of a judicial authority
- No Discrimination: the network providers shall provide equal treatment to the content, apps and services without any arbitrary discrimination
- Transparency: the network providers shall reveal their users' traffic management policies and the providers who may access their network and
- Information: the network providers shall provide to users the information regarding the services provided.
Without limiting the aforementioned, Colombia does not have a specific regulation regarding intellectual property protection online and, thus, the applicable law for online content issues is the one that governs intellectual property in general as well as data privacy and the infringement of the right to intimacy and to a good name. In any case, the information and contents shared on the internet may not violate the law.
Not applicable for this jurisdiction.
As a main rule, service providers will not be held liable for intellectual property right infringements due to their transmitting, routing or providing of connection to infringing content. However, certain requirements have to be fulfilled.
Service providers can be subject to interim injunctions if they are providing connection to infringing content.
Specific rules apply when consumers are concerned, such as the requirement to put in place a double-click system when a consumer makes a purchase online, or the obligation to provide consumers with certain mandatory information via a durable medium (ie, in a PDF document or in the content of an email). In any event, the French Consumer Act (Loi Hamon) of March 17, 2014 has implemented European Directive 2011/83/EU dated October 25, 2011 on consumer rights. Thus, the rules applicable to agreements with consumers concluded online are, to a certain extent, similar in all European Union countries, save any local specificity.
As a general rule, a host service provider is not liable for copyright infringing content provided by others, provided that it does not have actual knowledge of the illegal content or, if it gained knowledge of the illegal content, has immediately removed or blocked the illegal content.
Hong Kong, SAR
There is currently no "safe-harbor" for online service providers in respect of copyright infringement occurring on their service platforms.
There are special provisions on the liability of intermediary service providers for the transmitted illegal content. In given circumstances they shall not be liable. This in many cases includes complying with notice and takedown requests from rights holders.
While intermediaries (websites, Internet service providers) can shield themselves from liability arising due to third-party content, by taking certain statutory actions as required under the IT Act, this exemption from liability does not apply to copyright and patent infringement claims.
Indonesia has adopted Budapest Convention on Cybercrime through Law Number 11 of 2008 on Electronic Information and Transaction as amended by Law Number 19 of 2016 on the Amendment of Law Number 11 of 2008 (EIT Law).
The statutory regime governing online content in Ireland generally derives from European law.
There are no specific requirements under Israeli law for online terms, which are considered to be a contract with all its implications (conditional upon the fulfillment of all elements under law required for the creation of a contract between two or more parties).
However, online terms may be deemed to be a standard contract under Israeli Standard Contracts Law (ie, a contract, the terms of which have been pre-determined by one party in order for them to be used in several agreements between that party and an undetermined and unspecified number of other parties). The consequence of an agreement being determined to be a standard contract by the court is that the court might strike out unfairly prejudicial terms contained within the contract.
Examples for such prejudicial terms include:
- A condition denying or limiting a right or remedy available to the customer ("a person to whom a supplier offers an engagement to which a standard contract applies, whether such customer is the receiver or the giver of anything") under law
- A condition imposing the burden of proof on a person who would not have to bear it but for that condition
- A condition which denies or limits the customer's right to make certain pleas before judicial authorities or that determines that any dispute between the supplier and the customer will be settled in arbitration
- A provision which relieves the supplier, fully or partially, of a liability which the supplier would have to bear under law if such condition was not included in the contract
- A condition which requires a customer to confirm that the customer read the contract, or to declare that he/she has committed any act, or to approve the customer's knowledge concerning a certain matter or fact, excluding information provided by the customer to the supplier in the contract
With regard to B2C contracts, the Consumer Code, as amended by Legislative Decree No. 21/2014, provides for some specific obligations in relation to pre-contractual information to be communicated to consumers, such as the ones on the vendor, the specific object of the contract and the right of withdrawal.
With regard to the right of withdrawal, such right may be unilaterally exercised by the consumer within 14 days, even without any reason and with no expenses except for those connected to the decrease of the goods' value in case the returned goods are damaged. If the vendor has not properly informed the consumer on the withdrawal term, the right of withdrawal is extended to 12 months.
Furthermore, the Code provides that the delivery of goods shall take place at the latest within 30 days from the date of conclusion of the contract. An additional term may be provided under certain circumstances to the vendor to deliver the goods, but at the expiry of such term the consumer is entitled to terminate the contract and to obtain damages compensation.
Does not apply for this jurisdiction.
The Luxembourg E-Commerce Law of August 14, 2000, as lastly amended by the Law of April 2, 2014, provides several additional requirements regarding the information to be provided to conclude online agreements, including information about the service provider and the languages in which the agreement can be concluded.
There is no specific legislation regarding online content.
If a consumer acquires online content, the right to terminate the agreement within a 14-day period (general consumer right for online purchases) remains in effect. In order to exclude this right, the consumer needs to explicitly accept that:
- Content will be provided within the 14-day period
- That the right to terminate the agreement is waived after provision of the content
Furthermore, pursuant to Dutch consumer law, a subscription for online content set out in general terms and conditions may not exceed one year. After such term, the subscription can be terminated with one month's notice period.
An Internet service provider does not infringe copyright merely because a consumer uses the Internet services of the provider in infringing the copyright or merely because the Internet service provider knows of the infringement from information received as a result of enforcement action taken pursuant to the Copyright Act 1994. However, in some cases injunctive relief is still available against the provider.
All consumer contracts, whether online or otherwise, are subject to the requirements in the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. In addition, consumer credit contracts, whether online or otherwise, are subject to the Credit Contracts and Consumer Finance Act 2003.
Companies must adhere to the E-Commerce Act (No: ehandelsloven) and the Right of Cancellation Act (No: angrerettloven).
Republic Act No. 8792 or the Electronic Commerce Act of 2000 (E-Commerce Act) features a safe harbor provision for service providers of online services or network access for online communications or electronic documents. Service providers as defined in the E-Commerce Act may not be held civilly or criminally liable in respect to the electronic data message or electronic document if such liability is founded on:
- The obligations and liabilities of the parties under the electronic data message or electronic document.
- The making, publication, dissemination or distribution of such material or any statement made in such material, including possible infringement of any right subsisting in or in relation to such material, as long as the service provider:
- Does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material
- Does not knowingly receive a financial benefit directly attributable to the unlawful or infringing activity and
- Does not directly commit any infringement or other unlawful act and does not induce or cause another person or party to commit any infringement or other unlawful act and/or does not benefit financially from the infringing activity or unlawful act of another person or party.
Generally, the hosting provider is not liable for content provided by third parties that infringes intellectual property rights provided that it was unaware of the unlawful character of the stored data or related activities or – having received an official notification or reliable information about the unlawful character of the data or related activities – denies access to the data or deletes the data, as applicable.
The hosting provider is not obliged to check (monitor) the data which it stores in order to assess whether they infringe any intellectual property rights.
Electronic contracts are regulated under Decree-Law no. 7/2004, of 7 January as later amended also known as the E-Commerce Law which enacted the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 and contracts concluded at a distance are regulated by Decree-Law no. 24/2014 of 14 February (as later amended) which enacts Directive EU/2011/83 of the European Parliament and of the Council of 25 October 2011, on the protection of consumers in respect of distance contracts.
Law no. 365 of May 9, 2002 regarding e-commerce (E-Commerce Law) sets out the conditions for the provision of internet based services and incriminates criminal offenses related to the security of the domains used in electronic commerce, the issuance and use of electronic payment instruments and the use of identification data for the purpose of conducting financial transactions.
The E-Commerce Law features a safe harbor provision for Internet service providers to avoid liability for infringement claims arising from storing or transmitting information provided by a recipient of that service if certain conditions are met such as for example, if the service provider is unaware that the stored activity or information is unlawful and, in respect of damage claims, is unaware of facts or circumstances that indicate that the activity or information in question could harm the rights of a third party.
In regard to internet-related infringements, under certain circumstances, the copyright owner or exclusive licensee may request the court to order blocking of an infringing website even before consideration of the case on the merits.
All Internet Content Providers are automatically granted class licenses under the Broadcasting (Class License) Notification (Notification) and are required to comply with the Class License Conditions set out under the Notification and the Internet Code of Practice.
"Internet Content Provider" is defined in the Notification as, among other things, "any corporation or group of individuals (including any association, business, club, company, society, organization or partnership, whether registrable or incorporated under the laws of Singapore or not) who provides any program on the World Wide Web through the Internet."
The Internet Code of Practice issued by the Infocomm Media Development Authority (IMDA) under the Notification requires Internet Content Providers to, among other things, deny access to material considered by the IMDA to be prohibited material if required to do so by IMDA. "Prohibited material" includes material which glorifies, incites or endorses ethnic, racial or religious hatred, strife or intolerance.
Not applicable for this jurisdiction.
The CA sets out a detailed list of the requirements for exempting an online-service provider from liability for carrying infringing materials. Subject to these requirements, a service provider must confine itself to acting as a mere conduit, to caching, to hosting, and to searching information in order to escape liability and to avoid responsibility for monitoring or investigating for infringing acts. To some degree, these safe-harbor provisions resolve the uncertainty previously surrounding the liability of online-service providers for direct infringement by their users. However, they also make it easier to impose liability on online-service providers if the requirements are not met.
Directive 2000/31/EC on information society services was implemented in Spain by Law 34/2002 on information society services and electronic commerce (LSSI).
Service providers are required to fulfill certain legal requirements set forth by LSSI. In particular, they shall make available a number of items such as the name or corporate denomination, residence, domicile or address of a permanent establishment in Spain, e-mail details of registration in the Companies Register or any other Public Register.
Generally, there is no requirement on the form of the contract (with a few exceptions, for example real property). Thus, the parties are free to enter into agreements online.
Companies need to adhere to the Act on E-Commerce (2002:562) (Lag) om elektronisk handel och andra informationssamhällets tjänster), and in business to consumer relationships, the Off-Premises Contracts Act (2005:59) (Lag om distansavtal och avtal utanför affärslokaler) applies, which includes numerous obligations of the trader.
Not applicable for this jurisdiction.
As a general rule, a host service provider is not liable for copyright infringing content provided by others, provided that it does not have actual knowledge of the infringing content or, if it gained knowledge of the infringing content, has immediately removed or blocked the infringing content, and that it does not gain economic benefits from the infringing content provided by others.
The E-Commerce Law dated September 3, 2015 is the key law on online transactions. It sets forth an obligation of sellers to provide customers with certain mandatory information. It also establishes a procedure for concluding an online agreement as well as confirmation of the received order.
Considering that online transactions are performed with the use of telecommunication services, which are rendered by diverse intermediary service providers (eg, providers of hosting, caching services), their role in the transaction may be qualified as pure provision of services or as a party to the transaction. If service providers are not involved into the transaction (ie, they do not initiate the transfer of information, do not choose its recipient and are not able to amend its content), they cannot be liable for infringements related to e-commerce transactions. However, if copyright or related rights are violated, the intermediary service providers cannot take advantage of the safe harbor. In such cases, the intermediary service providers are obliged to take necessary actions for protection of the right holder, eg, to consider the takedown notices, block the illegal content or to delete it when appropriate.
United Arab Emirates
The Digital Millennium Copyright Act (DMCA) is a US copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). The DMCA instituted criminal penalties for the production and distribution of technology, devices, or services intended to bypass technological means for controlling access to copyrighted works.
The DMCA features a safe harbor provision for Internet service providers and other intermediaries to avoid liability for copyright infringement claims arising from transmitting, routing, or providing connections to infringing content, provided that the service provider registers a designated agent with the Copyright Office. Designated agent registrations must be made electronically, timely updated and renewed every three years.