RESEARCH METHODS AND LEGAL WRITING

CIA-I

Literature Review

Submitted to:- Submitted by:-

Dr. Christabell Joseph Arnab Das Gupta
Faculty, School of Law 2257106
Christ (Deemed to be University), 1 LLM CCL
Bangalore.

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 TABLE OF CONTENT

1. Analyzing Indian laws related to e-commerce. 3-5

(Ashmita Biswas and Tanvi Goyal from Nirma University.) (Article)

2. Ecommerce and Consumer Protection in India: The Emerging Trend. 5-7

(Neelam Chawla and Basanta Kumar, 2021) (Research Paper)

3. Internet, consumer contracts and private international law: 8-10

what constitutes targeting activity test?
(Zhen Chen, 2021) (Article)

4. Case Review:- Standard Oil Co. of New Jersey V. United States 10-12

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 Analyzing Indian laws related to e-commerce

Ashmita Biswas and Tanvi Goyal from Nirma University.

1. INTRODUCTION

The pandemic has resulted in financial gain and industry growth for e-commerce. However,
Cybercrime has increased due to citizens' greater involvement in the e-commerce sector,
bringing attention to the legal gaps in India's cybercrime legislation. In India, the Information
Technology Act, the Copyright Act, and most recently the Consumer Protection Act are the
legislations which contains laws pertaining to e-commerce.

This made it easier for us to comprehend, on an individual basis, the issues that each law (in
terms of electronic commerce rules) faced and, as a result, to more effectively and directly
address each issue. This article emphasizes the fact that many e-commerce rules are
ambiguous and hazy, which contributes to the majority of cybercrime. Many of these
cybercrimes are unreported as a result, going undiscovered. Although the law has been
amended, these issues have not been entirely resolved, leaving a lot of room for e-commerce
law reform.

2. BACKGROUND

Due to lockdown policies and store closures, customers are turning to internet. A double-digit
percentage of online shoppers increased their digital purchases as a result of COVID-19.
Most of them made their first usage of the online mode during the lockdown. As a result, The
corona virus epidemic is somewhat disrupting customary payment and purchasing practices1 .

Business-to-business (B2B), business-to-consumer (B2C), business-to-government (B2G),

and consumer-to-consumer (C2C) are the four main categories of e-commerce. The Internet
and electronic commerce provide unrivalled chances to improve economic development.
Online trading does, however, offer potential for dishonest, false, and unethical commercial
methods, just like in traditional trade2. In a nutshell, it's crucial to be aware of the legal
limitations that apply when making a purchase on an e-commerce website. Customers could
be reluctant to make online purchases of goods or services, and firms might be reluctant to

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Tucay, K., 2021. E-Commerce amidst Covid-19.
2
Marc Wilikens, Arnold Vahrenwald, Philip Morris, 2000. Out-of-court dispute settlement systems for e-
commerce, JOINT RESEARCH CENTRE, 2,

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enter the electronic industry due to the regulatory system's unpredictability. This paper also
talks about model agreements for the sale of products as well as the provision of electronic
goods and services to clients and businesses.

3. MAIN CONTEXT

The article mainly puts forth the legality and the validity of E-Contracts as such for the
commencement of E-Commerce under the Information Technology Act, 2000. The Indian
Contracts Act of 1872 must be considered in conjunction with the IT Act, which is only an
enabling Act. According to the Contract Act, every contract must be formed using three
essential components. An offer must be made, accepted without modification, and the
contract must be compensated in some way. Unlike conventional forms of communication,
email is not sent and received directly through a route of connection on the Internet. The
message gets broken up into bits while being delivered. This raises concerns about the exact
moment that communication was accepted because this is vital for assessing the parties'
rights. The methods for determining the specific time and place of email dispatch and
reception are outlined in Section 13 of the IT Act.

The shift from a paper-based method to a digital medium for contract formulation is generally
facilitated by an e-contract system. Both speedier and more transparent. The e-contract
method is simple and effective, which lessens the load on the parties.

4. ANALYSIS

It's crucial to keep in mind that the majority of consumers are still ignorant of the legal
changes. It's vital to note that many of these improvements are ambiguous and continue to
provide room for cybercrime to flourish. Legislators should therefore adopt the British
strategy of dividing and governing. Before being changed, each area of law pertaining to e-
commerce, such as torts, contracts, intellectual property rights, etc., should be thoroughly
examined. The primary objective of these legislators ought to be to guarantee that the altered
legislation are concise and leave no room for misunderstanding. This article also aimed to
accomplish this.

5. CONCLUSION

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We have come to learn that, despite the fact that Indian legislation still has many flaws, these
flaws allow cybercriminals to continue abusing the internet in the e-commerce sector, putting
customers at danger. The COVID-19 pandemic's rising use of the e-commerce platform in
recent years has alarmed politicians, and as a result, numerous steps have recently been
launched to strengthen the flimsy law. As a result, cybercrime has significantly decreased.

 E-Commerce and Consumer Protection in India: The

Emerging Trend
Neelam Chawla and Basanta Kumar, 2021

1. INTRODUCTION

This paper explores the current Indian law system that safeguards the interests of online
customers in light of the e-commerce industry's explosive growth and changing consumer
preferences. A thorough analysis of the two recently passed legislation, the Consumer
Protection Act of 2019 and the Consumer Protection (E-commerce) Rules of 2020. Important
conclusions include the need for a safe and secure system for e-business businesses, the
importance of cash on delivery as a payment method for online purchases, and the fact that
trustworthy websites and good customer support services can win over customers. In addition
to aspects like safety, confidentiality, assurance, customer support, and website details,
regulations governing the protection of consumers' rights in e-commerce have an impact on
customers' trust. The results add to the body of expertise on e-commerce and the protection of
consumer rights by highlighting the crucial elements influencing customer loyalty and trust as
well as by providing an insightful viewpoint on e-consumer safety in the Indian context with
wider implications.

2. BACKGROUND

The following is the study background, which examines two important issues: the need for
consumer safety in e-commerce and its expansion:-

1. Consumer protection in E-commerce and it’s rationale:-

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Consumer law is a pressing concern in global e-commerce. E-commerce is a term used to
describe a system that facilitates sales of products and services via electronic exchange.

E-commerce is defined by Organization for Economic Cooperation and Development

(OECD) guidelines from 1999 as online business operations that include both
communications, such as marketing and advertising, and transactions, such as ordering,
invoicing, and payments (OECD, 2000). OCED-1999 recommendations acknowledged three
crucial aspects of consumer safety in e-commerce, among others.

2. Growth of the Electronic commerce:-

Internet adoption is directly related to the growth potential of e-commerce. E-commerce has
mostly expanded as a result of the rise in mobile device and smart phone usage around the
world. People are more adaptable and passive when purchasing and selling online thanks to
mobile devices. The conclusion is that e-commerce is a thriving and constantly growing
business model; due to the rising spending power of international consumers, the expansion
of users of social media and the rapidly evolving infrastructure and technology, its future is
much more competitive than it is now.

3. MAIN CONTEXT

This paper mainly articulates on Customers requiring protection since they are treated worse
than their contractual partners. As a result of their weak negotiating position, it is
acknowledged that their interests must be protected. The "inequality in negotiating power"
principle highlights how economically weaker customers are compared to providers. The
"exploitation theory" backs a similar perspective to the "weaker party" claim. In accordance
with this theory, consumers require protection for two reasons: first, they have little
alternative but to purchase goods and enter into contracts under the requirements laid by ever-
larger and more powerful corporations; and second, businesses have the ability to
significantly manipulate knowledge gaps and complexity to their advantage. From a
behavioral economics perspective, trust (belief) has long been seen as a catalyst for buyer-
seller interactions that can offer clients high expectations of fulfilling business relationships.
In the context of e-commerce, trust alludes to a party's capacity to be exposed to the acts of
another party; the trustor, through its participation in networking, perceives trust as a sort of
risk-taking activity.

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The greatest danger associated with e-commerce is likely data protection. It can be quite
difficult to ensure that your business is safe and sound in the marketplaces because of the
sheer volume of infractions that occur there. Ensuring the security and confidentiality of the
e-commerce consumer's data privacy in conformity with the General Data Protection
Regulations (GDPR) across nations is a significant expense for e-commerce businesses.

4. ANALYSIS

The quick growth of e-commerce has given rise to new methods for delivering goods and
services as well as growth avenues for consumers. This has also made consumers more
susceptible to new kinds of unfair trade and immoral commercial practices. Concerning its
relevance and adjudication procedures for protecting consumer rights in e-commerce, the
outdated Act from 1986 has significant restrictions. The new Act of 2020 envisions the
CCPA and vests regulatory and controlling authority. It also introduces substantial
modifications to its scope of application, penalty, and governance.

The Act of 2019 is applicable to transactions involving the purchase or sale of goods or
services over an electronic or digital network, including digital goods [sec .2 (16)], as well as
to anyone who develops technology that enables a product seller to engage in consumer
advertising or the sale of goods or services. The Act also provides definitions and
explanations that are necessary for e-commerce which brings us to the conclusion that
constant development of laws have contributed a lot for forming a uniform and safe
regulatory mechanisms for the welfare of the consumers.

5. CONCLUSION

Given the assumption that e-commerce and credibility are two variables that are constantly
changing, it will become harder to incorporate e-commerce into people's daily life. Only after
a few years of operating experience is there more room for research into the efficacy of the
Act, 2019, and Rule, 2020 in resolving e-commerce consumer complaints and preserving
their rights. Given the significance of consumer rights protection and trust-building in e-
commerce, the government's legislative drive to speed up online transactions also raises
obstacles. These issues would be clarified by further investigation.

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 Internet, consumer contracts and private international law:
what constitutes targeting activity test?
Zhen Chen, 2021.

1. INTRODUCTION

Only if a foreign company engages in commercial operations aimed at the consumer's

country of residence if it is subject to the consumer jurisdiction and competent law provisions
outlined in Articles 17–19 of the Brussels Ibis Regulation and Article 6 of the Rome I
Regulation. This article seeks to address the question of what constitutes a targeted activity
test, particularly in the context of the Online and E-commerce. Examining the non-exhaustive
list of considerations provided by the CJEU in the significant Pammer and Hotel Alpenhof
judgement is important to do this context. The dis-targeting test, which concentrates more on
the ring-fence mechanism, could also be used to supplement the targeting test. In this context,
in addition to directly questioning customers about their whereabouts, it is also possible to
technologically prohibit uninvited customers by utilising geo-location and geo-blocking
technology.

2. BACKGROUND

Since multinational corporations can use both offline and online advertising and promotion
channels to target consumers globally, the technology and the Internet have made it easier for
multinational businesses to reach out to consumers living in foreign nations. As a result, due
to the rising use of digital devices for communication, information gathering, purchasing, and
payment, individual customers are exposed to multiple international enterprises 3. However, if
a problem arises, customers find it difficult to contact overseas businesses in the same
manner that customers approach businesses.

Since most Internet and e-commerce cases, transactions require upfront payment, it is unusual
for a professional to sue a customer 4, but it is quite possible for a customer to start legal
action against a professional. The EU's action to meet this new challenge can be seen in the
Rome I Regulation and the Brussels Ibis Regulation.
3
CP Olinger and ES Marlin, Consumer Protection in an Age of Technological Transformation (Nova Science
Publishers, 2010)
4
P Mankowski and P Nielsen, ‘Jurisdiction Over Consumer Contract’ in U Magnus and P Mankowski
(eds), Brussels Ibis Regulation (Otto Schmidt, 2016) 482.

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In Peter Pammer v. Reederei Karl Schlüter GmbH & Co, The Austrian Supreme Court
believed it would be beneficial to know what standards a website must meet in order to be
regarded "directed to" a consumer's home State in accordance with Article 15(1)(c) of the
Brussels I Regulation.

3. MAIN CONTEXT

The paper’s main focus on The Brussels ibis Regulation and The Rome I Regulation as an
action to address these challenges of e commerce which deviates from the general jurisdiction
and applicable law requirements, severely restrict the freedom of the parties to choose the
court and the applicable law. Rather, a consumer is given the right to take legal action against
a foreign company in front of the courts in their place of residency and is safeguarded by that
country's laws only.

Moreover, the paper substantiates on the Ring-fence mechanism which As an example of the
localization principle, the ring-fence theory or mechanism suggests that a company might
limit its market to select nations by taking steps to avoid being subject to the domestic laws
or jurisdiction of nations that are not part of its market strategy.

4. ANALYSIS

Even though the Brussels Ibis Regulation and Rome I Regulation can be seen as the EU's step
towards tackling this new difficulty. protective jurisdiction and choice of law provisions over
consumer contracts always existed in the Brussels Convention and Rome Convention before
the emergence of E-commerce. It is also to be noted that when a consumer is given the right
to take legal action against a foreign company in front of the courts in their place of residency
and is safeguarded by that country's laws only, which further means that means that any
benefit received by a party with a dominating bargaining position will not be entitled to or
have any legal consequences. Such consumer protective measures are subject to the business
pursuing commercial or professional activities in, or directing such activities to, the
consumer's native country in order to achieve a balance between consumer protection and
business development.

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Further, The CJEU gives a non-exhaustive list of indicative factors that can serve as evidence
of directing acts in its ruling in the case of Pammer and Hotel Alpenhof.

Moreover, in the context of the Ring-fence mechanism or theory, When a firm uses this
technique to make it apparent and obvious that it only plans to do business with consumers
residing in certain countries, a ring-fence mechanism can ensure reliability and avoid the
company from getting dragged into a foreign court it did not expect to be in.

5. CONCLUSION

The non-exhaustive list in Pammer and Hotel Alpenhof's judgement offers precise criteria to
ascertain if there is a targeted activity when determining what comprises such activities. This
does not imply that all requirements must be met or that each element must be either decisive
or conditional. Alternatively, it is desirable to take into account a company's total activity to
ascertain whether it intends to conduct business and enter into agreements with consumers
from a given country. In order to achieve this, one factor might be replaced with another
when it is absent.

Lastly, The ring-fence mechanism, which may include but is not limited to using geo-location
and geo-blocking technology, asking customers one by one, and making an assertion or
disclaimer, may be useful in this regard.

 CASE REVIEW

Standard Oil Co. Of New Jersey V. United States

1. INTRODUCTION

The Sherman Antitrust Act of 1890 was put to the test in the Supreme Court case Standard
Oil Co. of New Jersey v. United States. The United States government battled against
Standard Oil, the largest corporation in the nation, and John D. Rockefeller, the richest
businessman in the nation, in the most divisive business case to ever make it to the Supreme

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Court. A commercial combination was unlawful if it engaged in an excessive restraint on
trade, the court found in favour of the United States. As a result, Standard Oil was divided up
into many businesses that were all in direct rivalry with one another, which ultimately led to
price reductions.

1.2 BACKGROUND

In America, the biggest and wealthiest trust belonged to John D. Rockefeller. He was in
charge of the country's oil industry and disregarded congressional efforts to forbid trade
restraints (i.e., antitrust). A federal court determined that Standard Oil, owned by John D.
Rockefeller, had broken the Sherman Antitrust Act in 1909. The corporation was ordered to
be dissolved by the court.

The "rule of reason" was used by the Court to leave open the prospect that certain
collaboration in restricting trade among businesses may be acceptable, even as it supported
the dissolution of Standard Oil. With the controversy over Microsoft's business practises
making headlines in the year 2000, the debate about the role and authority of the government
in limiting private economic activity persisted into the twenty-first century.

C.T. Dodd, a former attorney for the Standard Oil Company in Ohio, circumvented the state's
anti-trust (or anti-competition) laws in 1879 by establishing a new type of trust to permit the
expanding firm to buy stock in other corporations. While Standard Oil was the most powerful
company at the time engaging in these activities, many industries were experiencing a rise in
mergers, acquisitions, and trust formations, which led to the maintenance of market
dominance by the few and its influence on many.

The government said that Standard Oil also benefited from "immoral conduct - rebate taking,
local price-cutting" that did not circumvent state or federal legislation, in addition to the
creation of the new loyalty formation and superior commercial practises.

2. ANALYSIS

Major gasoline providers Exxon, Amoco, Mobil, Chevron, and Standard of California were
among the distinct businesses that emerged from Standard Oil's breakup. The American
Tobacco Company was another trust that was dissolved in 1911 as a result of a Supreme

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Court decision. The rulings confirmed (supported) the federal government's responsibility in
monitoring market economics by deciding whether trusts impede commerce and restrict
competition.

Contrary to popular belief, even though Standard Oil lost, the rule of reason actually made it
possible for other major corporations to appeal the decision in the years that followed.

3. CONCLUSION

Standard Oil lost, but White, acting on behalf of the majority, was able to change the
Sherman Act's text such that only "entirely irrational" agreements and alliances in restraint of
trade would be illegal. Prior to now, the Act deemed any agreements and coalitions that
restricted trade to be illegal. The evidence in this instance demonstrates that the Standard Oil
trust acted inexplicably.

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