Australia: Consumer Rights - One Click and They're Gone.
| Autor | Leif Gamertsfelder |
| Cargo | IT Group. Deacons Graham & James Brisbane, Australia. |
The US state of Virginia has enacted legislation that radically alters a software development company’s obligations to consumers purchasing software online.
“The controversial laws will ensure that clickwrap licences are legally binding, but will impact significantly on consumer rights. These laws could have a major impact in Australia if US online software providers choose them to govern contracts with Australian consumers,” said Phillip Hourigan, an e-commerce partner with leading Australian international law firm Deacons Graham & James
The Virginian legislation is based on the Uniform Computer Information Transaction Act, or UCITA. UCITA is a legislative proposal that is being actively promoted by the Business Software Alliance (of which Microsoft is the largest member). The BSA believes that any legislation based on UCITA will provide greater certainty in e-commerce.
Opponents of the UCITA claim that it will erode consumer rights by, among other things, compelling:
software users to surrender any rights they have to content made with software;
consumers to travel to a foreign country to commence litigation against a developer; and
users to delete products if they do not agree to licence changes that developers can impose on a user at anytime.
Also, under UCITA legislation it will be lawful for software companies to engage in what some critics label anti-consumer activities. For example, software companies will have the right:
to monitor consumers’ computers to ensure that users comply with licence conditions;
to send a machine a message across the Internet to turn off a program without a moment's notice to a consumer if the company believes a licence term has been breached;
to prohibit reverse engineering;
to prevent users publicising flaws in their software; and
to avoid liability for software bugs that software companies they know about at their time that they ship the product.
Leif Gamertsfelder, an e-commerce specialist with Deacons Graham & James said, “In many cases it will be difficult to exercise these rights in relation to Australian consumers because of our strong consumer protection laws.”
“Australian courts may refuse to uphold aspects of UCITA legislation if typical consumers are involved. However, the case may be different where a B2B transaction is involved.
“Also, the right of developers to prohibit reverse engineering is of limited significant in the Australian context as recent amendments...
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