Get the full ebook with Bonus Features for a Better Reading Experience on ebookgate.

com

The law of electronic commerce 1st Edition Alan

Davidson

https://ebookgate.com/product/the-law-of-electronic-
commerce-1st-edition-alan-davidson/

OR CLICK HERE

DOWLOAD NOW

Download more ebook instantly today at https://ebookgate.com

Instant digital products (PDF, ePub, MOBI) available
Download now and explore formats that suit you...

Social Media and Electronic Commerce Law Alan Davidson

https://ebookgate.com/product/social-media-and-electronic-commerce-
law-alan-davidson/

ebookgate.com

Electronic Commerce 12th Edition Gary P. Schneider

https://ebookgate.com/product/electronic-commerce-12th-edition-gary-p-
schneider/

ebookgate.com

Electronic Commerce B2c Strategies and Models 1st Edition

Steve Elliot

https://ebookgate.com/product/electronic-commerce-b2c-strategies-and-
models-1st-edition-steve-elliot/

ebookgate.com

Mobile Electronic Commerce Foundations Development and

Applications 1st Edition June Wei

https://ebookgate.com/product/mobile-electronic-commerce-foundations-
development-and-applications-1st-edition-june-wei/

ebookgate.com
Electronic commerce framework technologies and
applications 4th Edition Bharat Bhasker

https://ebookgate.com/product/electronic-commerce-framework-
technologies-and-applications-4th-edition-bharat-bhasker/

ebookgate.com

Davidson s foundations of clinical practice 1st Edition

Stanley Davidson

https://ebookgate.com/product/davidson-s-foundations-of-clinical-
practice-1st-edition-stanley-davidson/

ebookgate.com

Selected Readings on Electronic Commerce Technologies

Contemporary Applications Premier Reference Source 1st
Edition Wen Chen Hu
https://ebookgate.com/product/selected-readings-on-electronic-
commerce-technologies-contemporary-applications-premier-reference-
source-1st-edition-wen-chen-hu/
ebookgate.com

The Idea of North Peter Davidson

https://ebookgate.com/product/the-idea-of-north-peter-davidson/

ebookgate.com

Ubiquitous and Pervasive Commerce New Frontiers for

Electronic Business Computer Communications and Networks
1st Edition. Edition George Roussos (Editor)
https://ebookgate.com/product/ubiquitous-and-pervasive-commerce-new-
frontiers-for-electronic-business-computer-communications-and-
networks-1st-edition-edition-george-roussos-editor/
ebookgate.com
This page intentionally left blank
The Law of Electronic Commerce

Written specifically for legal practitioners and students, this book examines the
concerns, laws and regulations involved in electronic commerce.
In just a few years, commerce via the World Wide Web and other online
platforms has boomed, and a new field of legal theory and practice has emerged.
Legislation has been enacted to keep pace with commercial realities, cyber-
criminals and unforeseen social consequences, but the ever-evolving nature of
new technologies has challenged the capacity of the courts to respond effectively.
This book addresses the legal issues relating to the introduction and adoption
of various forms of electronic commerce. From intellectual property, to issues of
security and privacy, Alan Davidson looks at the practical challenges for lawyers
and commercial parties while providing a rationale for the underlying legal
theory.

Alan Davidson is Senior Lecturer in the School of Law, University of Queensland.

He is also a solicitor and barrister of the Supreme Court of New South Wales and
the High Court of Australia.
The Law of Electronic
Commerce

Alan Davidson
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
São Paulo, Delhi, Dubai, Tokyo

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521678650
© Alan Davidson 2009

This publication is in copyright. Subject to statutory exception and to the

provision of relevant collective licensing agreements, no reproduction of any part
may take place without the written permission of Cambridge University Press.
First published in print format 2009

ISBN-13 978-0-511-69088-4 eBook (NetLibrary)

ISBN-13 978-0-521-67865-0 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy

of urls for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Reproduction and communication for educational purposes The Australian
Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the
pages of this work, whichever is the greater, to be reproduced and/or
communicated by any educational institution for its educational purposes provided
that the educational institution (or the body that administers it) has given a
remuneration notice to Copyright Agency Limited (CAL) under the Act. For
details of the CAL licence for educational institutions contact:
Copyright Agency Limited
Level 15, 233 Castlereagh Street
Sydney NSW 2000
Telephone: (02) 9394 7600
Facsimile: (02) 9394 7601
E-mail: [email protected]
Information regarding prices, travel timetables and other factual information given
in this work are correct at the time of first printing but Cambridge University Press
does not guarantee the accuracy of such information thereafter.
Contents

Acknowledgements page xv
Table of cases xvii
Table of statutes xxv

1 The law of electronic commerce 1

Electronic commerce law 2
Internet use in Australia 5
Judicial consideration in Australia 6
Further reading 10

2 The rule of cyberspace 11

Cultural and environmental juxtaposition with cyberspace 11
Cyberspace 12
The rule of law and the rule of cyberspace 16
The rule of law 17
The rule of cyberspace 18
Spontaneous (or endogenous) order 18
A code of cyberspace 20
Information wants to be free 22
Conclusion 23
Further reading 24

3 Electronic commerce and the law of contract 25

UNCITRAL Model Law of Electronic Commerce 25
Legislation 27
Australia 27
New Zealand 28
Provisions of the Electronic Transactions Acts 29
Electronic contracts 30
Common law 31
Application of the common law 31
Exemptions 33
Exemption does not equate to a paper requirement 34
New Zealand 34
Validity of electronic transactions 35

v
vi CONTENTS

Writing 36
Australian provisions 37
New Zealand 39
Signatures 39
Australian provisions 40
New Zealand provisions 45
Production of documents 47
Consent 48
Example 50
Other countries’ provisions 51
Comment 52
Retention of information and documents 52
Retention in paper form 53
Retention in electronic form 53
Time and place of dispatch and receipt of electronic
communications 54
Time of dispatch 55
Time of receipt 56
Acceptance by electronic communication and the postal acceptance rule 57
Place of dispatch and place of receipt 61
Attribution of electronic communication 61
Originals 63
Electronic Case Management System 63
Comment 63
Further reading 64

4 Shrinkwrap, clickwrap and browsewrap contracts 66

Shrinkwrap 67
Clickwrap 68
Browsewrap 70
Electronic agents 72
Further reading 73

5 Electronic signatures 74
Traditional signatures 74
Modern signatures 77
Electronic signing 77
Acceptance at face value and risk 79
Functions of signatures 79
Electronic Transactions Acts 80
‘Electronic signature’ defined 82
Uses 83
Security of electronic signature 83
Digitised signatures 84
Digital signatures 84
 CONTENTS vii

Australian Business Number Digital Signature Certificates 86

Secure Socket Layer – Transport Layer Security 87
Applications 88
Further Reading 88

6 Copyright issues in electronic commerce 89

The nature of copyright 89
Exclusive rights 91
Infringement 92
Substantial part 93
Objective similarity and causal connection 95
Software 96
Right of communication 97
Exemptions 98
Libraries and archives 98
Educational statutory licences 99
Temporary reproductions 99
Enforcement measures 99
Time-shifting, format-shifting and space-shifting 101
Piracy and enforcement 102
Peer-to-peer file sharing 102
Authorisation 105
Carrier protection 108
Hyperlinking 108
Further reading 109

7 Electronic commerce – trade marks, patents and circuit layouts 110

The nature of trade marks 110
Infringement 112
Hyperlinking 113
Framing 115
Meta-tags 117
Patents for software and internet processes 119
Developments in the United States 119
Developments in Europe 120
Developments in Australia 120
Patents and hardware 122
Circuit layout rights 123
Further reading 125

8 Domain names 126

Mapping cyberspace 126
Business identifiers 127
The nature of domain names 128
Top Level Domains names (TLDs) 129
viii CONTENTS

Generic Top Level Domain Names (gTLDs) 129

Country Code Top Level Domain names (ccTLDs) 131
.au 131
.nz 132
.us 132
.uk 133
.in 133
TLD rationale 134
ICANN 135
InterNIC 136
Whois 137
ICANN Ombudsman 137
Nexus requirements 138
gTLD nexus requirements 138
.au nexus requirements 139
.nz nexus requirements 140
.us nexus requirements 140
.uk nexus requirements 141
.in nexus requirements 141

9 Domain name disputes 142

Cybersquatting 142
Dispute resolution 143
Remedies using the court process 144
Cause of action 144
US experience 146
International approaches 148
Domain name passing off 151
Oggi Advertising Ltd v McKenzie 152
Marks & Spencer v One in a Million 153
Developments 156
Trade Practices Act relief 157
Fraud 160
Conclusion 162
Further reading 162

10 Uniform domain name dispute resolution policies 163

WIPO internet domain name reports 164
UDRP rules 165
Identical or confusingly similar 166
Trademark or service mark 168
Registrant has no rights or legitimate interests 171
Registration and use in bad faith 172
UDRP process 175
ccTLD dispute resolution policies 176
auDRP 176
.nz DRSP 177
 CONTENTS ix

usTLD Dispute Resolution Policy 178

.uk DRSP 178
INDRP 179
Additional policies 179
Practical ramifications 181
Conclusion 181
Further reading 182

11 Jurisdiction in cyberspace 183

Rules of private international law 183
Forum non conveniens 184
Dow Jones v Gutnick 185
Adventitious and opportunistic 189
Effects test 190
Australian cases 191
Early US experience 194
Universal rights 196
Alternative approaches 198
Single publication rule 200
Substantial publication 201
Uniform defamation legislation – choice of law 201
Conclusion 202
Further reading 203

12 Defamation in cyberspace 204

Defamation principles 205
Defamation reform 206
Defamation in cyberspace – actions and issues 206
Statute of limitations 210
Single publication rule 210
Single controversy principle 213
Single cause rule 213
Adventitious or opportunistic conduct 213
Jurisdiction for defamatory statement 214
Conclusion 214
Further reading 215

13 Privacy and data protection in cyberspace 216

Information wants to be free 217
Privacy and regulation 218
Information privacy 218
Australia 221
National Privacy Principles (NPP) 223
Data protection 225
Victoria 225
New South Wales 226
x CONTENTS

Queensland 226
Western Australia 226
South Australia 227
Tasmania 227
Northern Territory 227
Australian Capital Territory 228
Abuses 228
Cookies 228
Web bugs 231
International Covenant on Civil and Political Rights (ICCPR) 232
Data protection 232
Review 233
Personal privacy 235
New Zealand 240
United States 241
Final comment 242
Further reading 242

14 Electronic mail and online presence 243

Email 243
Attachments 244
Authentication 244
Language 245
Viruses 246
Disclaimers 246
Risk assessment 248
Service of documents by email 248
Time and place of dispatch and receipt 249
Web page presence 250
Liability for online material 250
Disclaimers – conditions of use 251
Information to be placed on pages for practical and legal purposes 252
Newsgroups and mailing lists 253
The professional office and email 253
Backup copies 253
Maintain supervisory checks 253
Records and costing 254
Confidentiality 254
Internal trial 254
Confirmation of sending 254
Access to files 255
A new form of expression 255
Conclusion 255

15 National electronic surveillance 256

The USA PATRIOT Act 256
Australian response 257
 CONTENTS xi

Criminal Code Amendment (Anti-Hoax and Other Measures)

Act 2002 (Cth) 257
Security Legislation Amendment (Terrorism) Act 2002
(Cth) 258
Suppression of the Financing of Terrorism Act 2002 (Cth) 258
Criminal Code Amendment (Suppression of Terrorist Bombings)
Act 2002 (Cth) 258
Telecommunications Interception Legislation Amendment
Act 2002 (Cth) 258
Criminal Code Amendment (Offences Against Australians)
Act 2002 (Cth) 259
Australian Security Intelligence Organisation Legislation Amendment
(Terrorism) Act 2003 (Cth) 259
‘Terrorism act’ 259
Anti-Terrorism Act 2004 (Cth) 260
Surveillance Devices Act 2004 (Cth) 260
Anti-Terrorism Act (No. 2) 2005 (Cth) 261
Ambassador for Counter-Terrorism 262
Memorandums of Understanding on counter-terrorism 263
International Conventions 263
Conclusion 265

16 Cybercrime 267
The Commonwealth Criminal Code and computer crime 268
Telecommunications services 270
Child pornography 271
Assisting suicide 273
Police and security powers 273
Investigative powers 274
State legislative offences relating to computers 275
New Zealand 276
Child pornography – international 277
Internet gambling 278
The problem 278
International Gambling Act 2001 (Cth) 279
Comment 280
Cyberstalking 280
International approach to cybercrime 282
Spam 283
The problem 283
Spam Act 2003 (Cth) 284
New Zealand response 289
US response 290
EU response 290
Criticisms 291
National Do Not Call Register 291
xii CONTENTS

Identity fraud 292

Identity fraud and terrorism 293
Technological response 293
Governmental response 293
Phishing 295
Further reading 295

17 Evidence of electronic records 296

Evidence of electronic records 296
Background 297
Secondary evidence rule 298
Evidence legislation 301
Legislation abolishing the ‘original document’ rule 304
International perspective 305
Hard copies of electronic records as evidence 308
Originals and copies – envelopes and attachments 310
Conclusion 312
Further reading 312

18 Censorship – Broadcast and online content regulation 313

The Australian Communications and Media Authority 313
The internet 314
Radio and television 314
Telephones 315
Licences 315
Consumers 316
Industry 316
Internet content 316
US cases 317
Australia 318
Referral to law enforcement agencies 320
Take-down notices 320
Service-cessation notices 321
Link-deletion notices 321
Industry codes 322
Complaints and investigations 322
Conclusion 322
International comparison 323
UK 323
EU 323
Television 323
ACMA’s enforcement powers 324
Television Classification Guidelines in practice 325
Radio broadcasting codes and breaches 325
Codes of practice 325
Investigations 326
Encouraging violence and brutality – the Alan Jones case 327
Conclusion 329
 CONTENTS xiii

19 An international perspective 330

UN Commission on International Trade Law (UNCITRAL) 331
The UNCITRAL Model Law on Electronic Commerce 332
The UNCITRAL Model Law on Electronic Signatures 332
The UN Convention on the Use of Electronic Communications in International
Contracts 334
World Trade Organization (WTO) 335
General Agreement on Tariffs and Trade (GATT) 336
The Organization for Economic Cooperation and Development (OECD) 336
The Asia Pacific Economic Cooperation (APEC) 338
Summary 340
International Chamber of Commerce (ICC) 340
International Organization for Standardization (ISO) 341
International Labour Organization (ILO) 342
International Telecommunication Union (ITU) 343
UN Centre for Trade Facilitation and Electronic Business
(UN/CEFACT) 343
UN Conference on Trade and Development (UNCTAD) 344
UN Educational, Scientific and Cultural Organisation (UNESCO) 344
Universal Postal Union (UPU) 345
World Bank 345
World Customs Organisation (WCO) 346
World Intellectual Property Organisation (WIPO) 346

Appendix A Electronic Transactions (Victoria) Act 2000 348

Appendix B UNCITRAL Model Law on Electronic Commerce 357

Appendix C Selected provisions Copyright Act 1968 (Cth) 365

Appendix D ICANN Uniform Dispute Resolution Policy (UDRP) 375

Appendix E .au Dispute Resolution Policy (auDRP) 380

Appendix F National Privacy Principles 386

Index 395
Acknowledgements

On one analysis electronic commerce emerged in mid 19th century with the
invention of the telegraph and telephone. But it was not until the creation and
growth of computers and the internet, and the development of this realm called
cyberspace, that the legal system faced real challenges in private, public and
criminal law. Speaking about cyberspace, ‘the new home of the mind’, John
Perry Barlow declared:

Ours is a world that is both everywhere and nowhere, but it is not where bodies
live . . . In our world, whatever the human mind may create can be reproduced and
distributed infinitely at no cost. The global conveyance of thought no longer requires
your factories to accomplish. We will create a civilization of the Mind in Cyberspace.
May it be more humane and fair than the world your governments have made before.1

In the past two decades many of the legal challenges have been answered. The
milestones in the past 20 years have been many. Some of the major ones are the
global content of the internet (in Reno v American Civil Liberties Union 521 US 844
(1997)), jurisdiction in cyberspace (in Dow Jones v Gutnick [2002] HCA 56), and
the functional equivalence of writing and signatures (by the UNCITRAL Models
Law of Electronic Commerce and the Electronic Transaction Acts). Other areas
that have been dealt with include the regulation of spam, internet gambling,
identity theft, digital privacy, email and cybersquatting.
My interest in this area arose some three decades ago when I undertook a
degree in computing science while practising law. At the time the combination
was most unusual, but the world of cyberspace and the regulation of that world
have now become part of the landscape. The aim of this work is to define the law
relating to electronic commerce within Australia as determined by the legislature,
judicial interpretations and the common law. It is intended for legal practitioners
and students of what has broadly become known as cyberlaw.
I would like to thank my colleagues Russell Hinchy, Paul O’Shea and my
research assistant William Hickey for their feedback, suggestions and assistance.
I would especially like to thank my assistant and colleague Garth Wooler for his

1 John Perry Barlow, “Declaration of Independence of Cyberspace”.

xv
xvi ACKNOWLEDGEMENTS

patience, proofreading and contributions. Finally I would thank my late father

and my wonderful family Dianne, Taylor and Chelsea.

Dr Alan Davidson
Senior Lecturer, TC Beirne School of Law University of Queensland
Solicitor and Barrister
April 2009
Table of Cases

A & M Records Inc. v Napster Inc., 239 F. 3d 1004 (9th Cir 2001) 102
Adams v Lindsell (1818) B & Ald 681 57
ADT Services AG v ADT Sucks.com WIPO Case No D2001-0213 167
Airways Corporation of NZ Ltd v Pricewaterhouse Coopers Legal [2002]
NSWSC 138 192
Allocation Network Gmbh v Steve Gregory (allocation.com) WIPO
No D2000-0016 175
American Civil Liberties Union v Reno 929 F. Supp. 824 (1996) 8
APRA v Canterbury-Bankstown League Club Ltd [1964] NSWR 138 90
APRA v Commonwealth Bank of Australia (1993) 25 IPR 157 90
Architects (Australia) Pty Ltd (trading as Architects Australia) v Witty Consultants
Pty Ltd [2002] QSC 139 156
Arica Institute Inc. v Palmer (1992) 970 F. 2d 1067 93
Armstrong v Executive of the President 1 F. 3d 1274 (DC Cir 1993) 309
Armstrong v Executive of the President 810 F. Supp. 335 (1993) 309
Arthur J S Hall & Co v Simmons [2000] UKHL 38, [2002] 1 AC 615 6
Athens v Randwick City Council [2005] NSWCA 317 118
Atlantic Underwriting Agencies Ltd v Compagnia di Assicuranzione di Milano SpA
[1979] 2 Lloyds Rep 240 184
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001]
HCA 63 236, 240
Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 200, 213
Australian Communications and Media Authority v Clarity1 Pty Ltd [2006]
410 FCA 286
Australian Competition and Consumer Commission v Chen [2003] FCA 897 159
Australian Competition and Consumer Commission v Purple Harmony Plates Pty
Limited [2001] FCA 1062 193
Australian Football League v Age Company Ltd [2006] VSC 308 203
Australian Railways Union v Victorian Railways Commissioners (1930)
44 CLR 319 186
Australian Stock Exchange Ltd v ASX Investor Services Pty Ltd (QSC 1999) 153
Autodesk Inc. v Dyason No. 1 (1992) 173 CLR 330 93
Autodesk Inc. v Dyason No. 2 (1993) 176 CLR 300 93, 94, 96
AV et al v IParadigms LLC Company Civ Act. No 07-0293 (ED Va 2008) 69
Ballas v Tedesco 41 F. Supp. 2d 531 32
Barrett v Rosenthal (2006) 40 Cal 4th 33, 146 P 3d 510 209
Bensusan Restaurant Corp. v King 937 F. Supp. 296 (SD NY 1996) 195
Berezovsky v Michaels [2000] UKHL 28 212

xvii
xviii TABLE OF CASES

Berlei Hestia Industries Ltd v Bali Co. Inc. (1973) 129 CLR 353 113
Bernstein v JC Penny Inc. 50 USPQ 2d 1063 (CD Cal 1998) 115
Bixee v Naukri (2005) IA no 9733/2005 115
Blackie & Sons Ltd v Lothian Book Publishing Co. Pty Ltd (1921) 29 CLR 396 93
Blue Cross and Blue Shield Association and Trigon Insurance Company v. Interactive
Communications Inc. WIPO Case No. D2000-0788 175
Blue Sky Software Corp v Digital Sierra Inc. WIPO Case No. D2000-0165 166
Bosley Medical Institute Inc. v Kremer 403 F. 3d 672 (9th Cir 2005) 168
Braintech Inc. v Kostiuk (1999) 63 BCLR (3d) 156 194
Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34
30, 57, 58, 60
British Petroleum Co. Ltd’s Application (1968) 38 AOJP 1020 121
British Telecom v One in a Million [1999] 1 WLR 903 153
Bruce Springsteen v Jeff Burgar and Bruce Springsteen Club WIPO
Case No. D2000-1532 171
Butera v Director of Public Prosecutions for the State of Victoria (1987)
164 CLR 180 298, 299
BWT Brands Inc and British American Tobacco (Brands) Inc. v NABR WIPO Case
No. D2001-1480 167
Calder v Jones 465 US 783 (1984) 188, 190, 198, 199, 202
Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 113, 149
Cantor Fitzgerald International v Tradition (UK) Ltd [2000] RPC 95 94
Car Toys Inc. v Informa Unlimited, Inc. (2000) NAF 93682 175
Casio India Co. Ltd v Ashita Tele Systems Pvt Ltd (2003) (27) PTC 265 (Del) 195
Caton v Caton (1867) LR 2 HL 127 75, 78
CCOM Pty Ltd v Jiejing Pty Ltd (1994) 27 IPR 481 121
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37, (1998) 193 CLR 519 205
Chief Executive Department Internal Affairs v Atkinson HCNZ unreported
CIV-2008-409-002391 (2008) 290
Church of Scientology v Woodward [1982] HCA 78 236
City Utilities v Ed Davidson (cityutilities.com) WIPO Case No. D2000-0004 175
Coca-Cola v F Cade & Sons Limited [1957] IR 196 169
Commissioner of Inland Revenue v B [2001] 2 NZLR 566 241
Compuserve Inc. v Patterson 89 F. 3d 1257 (6th Cir 1996) 195
Computer Edge v Apple (1986) 161 CLR 171 96
connect.com.au Pty Ltd v GoConnect Australia Pty Ltd [2000] FCA 1148 153
Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 1059 92
Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 105
Cramp & Sons Ltd v Frank Smythson Ltd [1944] AC 328 90
CSR Limited v Resource Capital Australia Pty Limited [2003] FCA 279 158
Cubby v CompuServe 776 F. Supp. 135 (SDNY 1991) 209
Cybersell Inc. v Cybersell Inc. 130 F. 3d 414 (9th Cir 1997) 195, 196
Darryl v Evans (1962) HC 174 32
Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 94, 96
Data Concepts v Digital Consulting Inc. and Network Solutions Inc. 150 F. 3d 620 (6th
Cir. 1998) 207
Databank Systems Ltd v Commissioner of Inland Revenue [1990] 3 NZLR 385 30
Derry v Peek (1889) 14 App Cas 337 160
Diageo plc v John Zuccarini WIPO Case No. D2000-0996 167
 TABLE OF CASES xix

Digital Equipment Corporation v Alta Vista Technology Inc. 960 F. Supp. 456 (D Mass
1997) 187
Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 287
Direct Line Group Ltd v Purge IT WIPO Case No. D2000-0583 167
Dixons Group PLC v Purge IT WIPO Case No. D2000-0584 167
Doherty v Registry of Motor Vehicles No. 97CV0050 (Mass 1997) 79
Dow Jones & Co. Inc. v Harrods Ltd 237 F. Supp. 2d 394 (SDNY 2002) 200
Dow Jones v Gutnick [2001] VSCA 249 185, 189
Dow Jones v Gutnick [2002] HCA 56 6, 185–6, 189–90, 191, 196, 198, 200, 204,
205, 210, 211, 214
Dow Jones v Powerclick Inc., WIPO Case No. D2000-1259 161
DPP (Cth) v Rogers [1998] VICSC 48 270
DPP v Sutcliffe [2001] VSC 43 282
Duchess of Argyle v Duke of Argyle [1967] Ch 302 217
Eastman v R (1997) 76 FCR 9 305
Eddie Bauer Inc. v Paul White (2000) eResolution AF-204 161, 168
Ellis v Smith (1754) 1 Ves Jun 11 at 12, 30 ER 205 75
Energy Source Inc. v Your Energy Source NAF No. FA0096364 168
Entores Ltd v Miles Far East Corp [1955] 2 QB 327 58
EPP v Levy [2001] NSWSC 482 217
ESAT Digifone Ltd v Colin Hayes WIPO Case No. D2000-0600 169
Evans v Hoare [1892] 1 QB 593 75, 77, 78
Experience Hendrix LLC v Denny Hammerton and The Jimi Hendrix Fan Club WIPO
Case No. D2000-0364 170
Exxon Corp v Exxon Ins. Consultations [1982] Ch 119 93
Faulks v Cameron [2004] NTSC 61, (2004) 32 Fam LR 417 44
Feist Publications Inc. v Rural Telephone Service Co. Inc. 737 F. Supp. 610, 622
(Kan 1990) 90
Fiber-Shield Industries Inc. v Fiber Shield Ltd NAR (2000)
No. FA0001000092054 169
Firth v State of New York 775 NE 2d 463 (2002) 201, 210, 211
Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd [1981] 1 NSWLR 196 160
Fletcher v Bealey (1885) 28 ChD 688 154
Francis Day & Hunter Ltd v Bron [1963] Ch 587 95
Freeserve PLC v Purge IT WIPO Case No. D2000-0585 167
Futuredontics Inc. v Applied Anagramatics Inc. (9th Circuit 1998) 116
G v Day [1982] 1 NSWLR 24 217
GE Capital Finance Australasia Pty v Dental Financial Services Pty Ltd Case
No. DAU2004-0007 177
Giller v Procipets [2004]VSC 113 237
GlobalCenter Pty Ltd v Global Domain Hosting Pty Ltd Case No. DAU2002-0001 173
Godfrey v Demon Internet Ltd [2001] QB 201 187
Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378 184
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 299
Goodman v J Eban Ltd [1954] 1 QB 550 75
Graham Technology Solutions Inc. v Thinking Pictures Inc. 949 F. Supp. 1427 (ND Cal
1997) 32
Grant v Commissioner of Patents [2005] FCA 1100 122
Griswold v Connecticut 381 US 479 (1965) 232
xx TABLE OF CASES

Grosse v Purvis [2003] QDC 151 237, 240

Gutnick v Dow Jones [2001] VSC 305 185, 191, 193
Harris v Selectrix Appliances (Complaints Review Tribunal, Decision No 12/2001,
2001) 241
Harrods Limited v Dow Jones & Co. Inc. [2003] EWHC 1162 201
Harrods Ltd v UK Network Services Ltd (1997) EIPR D-106 153
Hawkes & Son (London) Ltd v Paramount Film Service Ltd [1934] 1 Ch 593 93
Healthgrades.com v Northwest Healthcare Alliance No. 01-35648
(9th Cir 2002) 191, 199
Hedley Byrne v Heller [1964] AC 465 246
Helicopteros Nationales de Columbia SA v Hall 466 US 408 194
Henderson v Henderson [1843] 3 Hare 100, 67 ER 313 213
Henry v Henry (1996) 185 CLR 571 184, 214
Henthorn v Fraser [1892] 2 Ch 27 57
Hill v Gatway 2000 Inc 105 F. 3d 1147 (7th Cir 1997) 68
Hoath v Connect Internet Services [2006] NSWSC 158 153, 160, 161
Hodgkinson & Corby Ltd v Wards Mobility Services Ltd [1994] 1 WLR 1564 151
Hotmail Corp v Van$ Money Pie Inc 47 USPQ 2d 1020 (1998) 68
Hume Computers Pty Ltd v Exact International BV [2007] FCA 478 32, 34, 52, 64
I Lan Systems Inc. v Netscout Service Level Corp. (D Mass 2002) 69
IBM Corporation v Commissioner of Patents (1991) 22 IPR 417 121
Ilich v Baystar Corp. Pty Ltd [2004] WASTR 25 49, 50
Inset System Inc. v Instruction Set Inc. 952 F. Supp. 1119 (WD Pa 1997) 192, 194
Insituform Technologies Inc. v National Envirotech Group (1997) LLC, Civ. No.
97-2064 (ED, La.) 118
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 67
International Shoe Co. v Washington 326 US 310 (1945) 194, 203
Investment India Ltd v ICIC (Mumbai High Court 2000) 157
Isabelle Adjani v Second Orbit Communications Inc. WIPO Case No. D2000-0867
170
J Pereira Fernandes SA v Mehta [2006] EWHC 813 41, 43
Jameel v Dow Jones & Co. Inc. [2005] EWCA Civ 75 201
Jane Doe v ABC [2007] VCC 281 237
Jazid Inc. Michelle McKinnon v Rennemo Steinar eResolution Case No. AF-0807 173
Jeanette Winterson v Mark Hogarth WIPO Case No. D2000-0235 169
Jones v Commonwealth [No. 2] (1965) 112 CLR 206 268
Jones v Dunkel (1959) 101 CLR 298 287
Joseph Denunzio Fruit Company v Crane 79 F. Supp. 117 (DC Cal 1948) 77
Julia Fiona Roberts v Russell Boyd WIPO Case No. D2000-0210 170
Kailash Center for Personal Development Inc. v Yoga Magik Pty Limited [2003] FCA
536 118, 158
Kelly v Arriba Soft Corporation 336 F. 3d 811 (CA9 2003) 104
Kitakufe v Oloya Ltd [1998] OJ No 2537 QL (Ont Gen Div) 187
Knight v Crockford (1794) 1 Esp N P C 190, 170 ER 324 75
Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100
FCR 90 113, 146, 167
L v L (Complaints Review Tribunal, Decision No. 15/2001, 2001) 241
LA Times v Free Republic 54 USPQ 2D 1453 (2000) 103
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 93, 95
 TABLE OF CASES xxi

Lazarus Estates Ltd v Beasley [1956] 1 All ER 341 76

Lee Teck Chee v Merrill Lynch International Bank [1998] CLJ 188 187
Lemayne v Stanley (1682) 3 Lev 1, 83 ER 545 75
L’Estrange v Graucob [1934] 2 KB 394 80
Libro Ag v NA Global Link WIPO Case No. D2000-0186 171
Lobb v Stanley (1844) 5 QB 574, 114 ER 1366 75, 76
Lockheed Martin Corporation v Dan Parisi WIPO Case No. D2000-1015 167
Lockheed-Arabia v Owen [1993] 3 WLR 468 32
Lott v JBW & Friends PL [2000] SASC 3 90
Loutchansky v Times Newspapers Ltd (Nos 2–5) [2002] QB 783 200
Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 8
Macmillan v Cooper (1923) 93 LJPC 113 90
Macquarie Bank v Berg [1999] NSWSC 526 187, 191, 214, 248
Macquarie Bank v Berg [2002] NSWSC 254 193
Madonna Ciccone v Dan Parisi WIPO Case No. D2000-0847 170
Marengo v Darly Sketch & Sunday Graphics Ltd (1948) RPC 242 150
Maritz Inc. v Cybergold Inc. 947 F. Supp. 1328 (ED Mo 1996) 194
Marks & Spencer plc v One in a Million [1999] 1 WLR 903, [1998] EWCA
Civ 1272 8, 153–6, 158, 160
Mary-Lynn Mondich and American Vintage Wine Biscuit Inc. v Big Daddy’s Antiques
WIPO Case No. D2000-0004 174
McGuren v Simpson [2004] NSWSC 35 32, 34, 44, 52, 64
McLane Company Inc. v Fred Craig WIPO Case No. D2000-1455 167
McLean v David Syme & Co. Limited (1970) 72 SR (NSW) 513 207
Mehta v J Pereira Fernandes SA [2006] EWHC 813 78
Mendelson-Zeller Co. Inc. v T & C Providores Pty Ltd [1981] 1 NSWLR 366 184
Merrill Lynch’s Application [1989] RPC 561 120
MGM v Grokster 545 US 913 (2005) 104
Mick Jagger v Denny Hammerton NAF FA0095261 170
Microsoft Corporation v Amit Mehrotrata WIPO Case No. D2000-0053 175
Miele Inc. v Absolute Air Cleaners and Purifiers, WIPO Case No. D2000-0005 173
Minnesota v Granite Gate Resorts Inc. 568 NW 2d 715 184, 194
MP3.com Inc. v Sander WIPO Case No. D2000-0579 168
National Research Development Corp. v Commissioner of Patents (1959)
102 CLR 252 121
National Westminster Bank PLC v Purge IT WIPO Case No. D2000-0636 167
Natural Floor Covering Centre Pty Ltd v Monamy (No. 1) [2006] FCA 518 118
Net2Phone Inc v Los Angeles Superior Court 109 Cal App 4th 583 (Cal. Ct App,
2003) 208
Nicholas v Borg (1986) 7 IPR 1 160
Nokia Corporation v Nokiagirls.com WIPO Case No. D2000-0102 166
NRMA v John Fairfax [2002] NSWSC 563 237
Oceanic Sun Line Special Shipping Co. v Fay (1988) 62 ALJR 389 184, 214
Oggi Advertising Ltd v McKenzie (1999) 44 IPR 661 152–3
Olley v Marlborough Court [1949] 1 KB 532 66
Omychund v Barker (1745) 1 Atk, 21, 26 ER 15 298
Ontario Inc v Nexx Online Inc. [1999] OJ No. 2246 (Sup Ct) 16
Orange Crush (Australia) Ltd v Gartrell (1928) 41 CLR 282 151
PA Consulting Services Pty Ltd v Joseph Barrington-Lew WIPO Case No.
DAU2003-0002 169
xxii TABLE OF CASES

Panavision International v Toeppen (1998) 141 F. 3d 1316 (9th Cir) 144, 146
Parker v The South Eastern Railway Co. (1877) 2 CPD 416 66, 68
Peek v Gurney (1873) LR 6 HL 377 160
Philippe Tenenhaus v Telepathy Inc. (2000) NAF 94355 175
Pitman Training Limited v Nominet [1997] EWHC Ch 367 144, 145, 146
Playboy Enterprises Inc. v Calvin Designer Label 985 F. Supp. 2d 1220
(ND Cal 1997) 118, 147
Playboy Enterprises Inc. v Chuckleberry Publishing Inc. 939 F. Supp. 1032 (SDNY
1996) 196
Playboy Enterprises Inc. v Hie Holdings Pty Ltd [1999] ATMO 68 117
Playboy Enterprises Inc. v Welles 162 F. 3d 1169 (9th Cir 1998) 117, 118
Polaroid Corp. v Sole N Pty Ltd [1981] 1 NSWLR 491 113
Powell v Birmingham Vinegar Brewing Co Ltd [1897] AC 710 160
Premier Brands v Typhoon [2000] RPC 477 149
ProCD Inc v Zeidenberg 86 F. 3d 1447 (7th Cir 1996) 67
Qantas Airways Limited v The Domain Name Company Limited (2000) 1 NZECC
70-005 157
R v Brislan, Ex parte Williams (1935) 54 CLR 262 268
R v Burdett (1820) 4 B & Ald 115 188
R v Frolchenko (1998) QCA 43 77, 300
R v Idolo [1998] VICSC 57 270
R v Maqsud Ali [1966] 1 QB 688 300
R v Moore, Ex Parte Myers (1884) 10 VLR 322 76
R v Shephard [1993] AC 380 302
R v Stevens [1999] NSWCCA 69 270
Re Eilberg 49 USPQ 2d 1955 (1998) 170
Re Krupp [1999] EIPR N24 150
Re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52 184
Reckitt & Colman Products Ltd v Borden Inc. (No. 3) [1990] 1 WLR 491 151
Reddaway v Banham [1896] AC 199 151
Rediff Communication Ltd v Cyberbooth AIR (2000) Bom 27 157
Reese Bros Plastics Ltd v Hamon-Sobelco Aust Pty Ltd (1988) 5 BPR 11, 106 30
Regie National des Usines Renault SA v Zhang [2002] HCA 10 184, 214
Register.com Inc. v Verio Inc. 356 F. 3d 393 (2nd Cir 2004) 69, 72
Reno v American Civil Liberties Union 521 US 844 (1997) 8, 13, 272, 317, 318, 323
Rindos v Hardwick (unreported) WASC (1993) 207
Roe v Wade 410 US 113 (1973) 232
Satyam Infoway Ltd v Siffynet Solutions Pvt Ltd (2004) (28) PTC 566 (SC) 150, 160
Scan Inc. v Digital Service Consultants Inc. 293 F. 3d 707 (4th Cir 2002) 198
Schneider v Norris (1814) 2 M & S 286 75
Shell Co. of Australia Ltd v Esso Standard Oil (Aust) Ltd (1963) 109 CLR 407 113
Shetland Times Ltd v Wills and Zetnews Ltd [1997] 37 IPR 71, [1997] FSR 604 114
SM Integrated Transware v Schenker Singapore Ltd [2005] 2 SLR 651 52, 64
Smith v Greenville County (1938) 188 SC 349, 199 SE 416 76
Société Accor contre M Philippe Hartmann WIPO Case No. D2001-0007 167
Sony Corp. v Universal City Studios 464 US 417 (1984) 103
Sony Kabushiki Kaishal v Sin Eonmok WIPO Case No. D2000-1007 168
Specht v Netscape Communications Corp. 150 F. Supp. 2d 585 (SDNY 2001) 70
Spiliada Maritime Corp. Ltd v Cansulex Ltd [1987] AC 460 184, 214
 TABLE OF CASES xxiii

Standard Chartered PLC v Purge IT WIPO Case No. D2000-0681 167

State of the Netherlands v Goldnames Inc. WIPO Case No. D2001-0520 169
State Street Bank and Trust Co. v Signature Financial Group Inc. 149 F. 3d 1368, 47
USPQ 2d (Fed Cir 1998) 119, 122
Step-Saver Data Sys Inc. v Wyse Tech 939 F. 2d 91 (3d Cir 1991) 67
Steven J Caspi v Microsoft Network 323 NJ Super 118 (1999) 69
Sting v Michael Urvan WIPO Case No. D2000-0596 170
Stowe v Thomas 23 F. Cas. 201 (CCED Pa 1853) 93
Stratton Oakmont Inc. v Prodigy Services Co. 1995 WL 323710 (NY Sup Ct
1995) 208
SW Hart & Co. Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 95
Sydney City Council v West (1965) 114 CLR 481 66
Sydney Markets Limited v Sydney Flower Market Pty Limited [2002] FCA 124 148
Szaeg v Minister for Immigration [2003] FMCA 258 55, 56
Telaxis Communications Corp. v William E. Minkle, WIPO Case No. D2000-0756
173
Telstra Corp. Ltd v APRA (1997) 38 IPR 294 90
Telstra Corporation Ltd v Barry Cheng Kwok Chu WIPO Case No. D2000-0423 161
Telstra Corporation Ltd v David Whittle WIPO Case No. D2001-0434 161
Telstra Corporation Ltd v Nuclear Marshmallows WIPO Case No. D2000-0003 161,
175
The Buddhist Society of Western Australia Inc. v Bristile Ltd [2000] WASCA 210 207
The Comp Examiner Agency Inc. 25th Century Internet Publishers v Juris Inc. (CD Cal
1996) 144
The Ian Anderson Group of Companies Ltd v Denny Hammerton WIPO Case No.
D2000-0475 170
The National Office for the Information Economy v Verisign Australia Limited LEADR
Case No. 02/2003 177
The Princeton Review Management Corp. v Stanley H Kaplan Educational Centre Ltd
84 Civ 1604 (MGC) (SDNY 1994) 144
The Salvation Army v Info-Bahn Inc. WIPO Case No. D2001-0463 167
The Wiggles Touring Pty Ltd v Thompson Media Pty Ltd WIPO Case No. D2000-0124
170
Theophanous v Herald and Weekly Times Limited [1994] HCA 46 6, 7
Thornton v Shoe Lane Parking Station [1971] 2 QB 163 66, 72
Ticketmaster Corp. v Tickets.com Inc. 54 USPQ 2d 1344 (CD Cal 2000) 70, 109
Ticketmaster Corporation v Microsoft Corporation No. 97-3055 DDP (CD Cal
1997) 114
Timothy R McVeigh v William Cohen 983 F. Supp. 215 (DDC January 1998) 228
Titan Industries Ltd v Prashanth Koorapati & Ors. (1998) (Application 787 in action
179, Delhi High Court) 157
Tourret v Cripps (1879) 48 LJ Ch 567, 27 WR 706 154
Toyota Jidosha Kabushiki Kaisha v S & S Enterprises Ltd, WIPO Case
No. D2000-0802 166
TPI Holdings Inc. v AFX Communications WIPO Case No. D2000-1472 167
Transport Tyre Sales Pty Ltd v Montana Tyres Rims and Tubes Pty Ltd (1999)
93 FCR 421 113
Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 105
Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 107
xxiv TABLE OF CASES

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005]
FCA 1242 104
University of Melbourne v union melb WIPO Case No. DAU2004-0004 177
University of New South Wales v Moorehouse (1975) 133 CLR 1 98, 107
Victoria Park Racing v Taylor (1937) 58 CLR 479 235
Vita Food Products Inc. v Unus Shipping Co. [1939] AC 277 184
Vivendi Universal v Jay David Sallen WIPO Case No. D2001-1121 167, 168
Voth v Manildra Flour Mills Pty Ltd (1990) 65 ALJR 83 184, 214
Wagner v International Ry Co. 133 NE 437 at 437 (NY 1921) 236
Wal-Mart Stores Inc. v Richard MacLeod WIPO Case No. D2000-0662 167
Wal-Mart Stores Inc. v wallmartcanadasucks.com and Kenneth J Harvey WIPO Case
No. D2000-1104 167
Wal-Mart Stores Inc. v Walsucks and Walmarket Puerto Rico WIPO Case No.
D2000-0477 167
Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471 199
Ward v R [1980] HCA 11 191
Warner Bros Pictures v Majestic Pictures Corp. (1934) 70 F. 2d 310 93
Warnink v Townsend & Sons [1979] AC 731 151
Washington Post Co. v Total News Inc. 97 Civ 1190 (SDNY 1997) 114, 116
Webber v Jolly Hotels 977 F. Supp. 327 (D NJ 1997) 195
Wilkens v Iowa Insurance Commissioner (1990) 457 NW 2d 33, 34, 52
World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 252
Y Liu v Star City Pty Limited PR903625 [2001] AIRC 394 239
Yahoo Inc. v Akash Arosa [1999] FSR 931 157, 194
Yahoo! Inc and GeoCities v Data Art WIPO Case No. D2000-0587 161
Young v New Haven Advocate 315 F. 3d 256 (4th Cir 2003) 198, 199, 208
Zippo Manufacturing Co. v Zippo Dot Com Inc. 952 F. Supp. 1119 (WD Pa
1997) 194, 195, 196
Zoekallehuizen.nl v NVM (2006) 115
Table of statutes

Australian Constitution Amendment (Terrorism) Act

section 51 221 2003 (Cth) 259
section 51(i) 28, 221 Bills of Exchange Act 1909 (Cth)
section 51(v) 221, 268 section 8 36
section 51(xiii) 221 section 89 36
section 51(xiv) 221 Broadcasting Services Act 1992 (Cth)
section 51(xviii) 90 97, 323, 325, 366, 369
section 51(xx) 28 Part 11 326
section 51(xxi) 221 Schedule 5 314, 322, 323
section 51(xxii) 221 Schedule 7 273, 314, 318, 319,
section 51(xxiii) 222 323
section 51(xxiiiA) 222 clause 2 320
section 51(xxix) 222 clause 11 320
section 51(xxxix) 222 clause 14 320
section 51(xxxvii) 222 clause 43 322
section 52(ii) 222 clause 47(1) 320
section 96 222 clause 47(2) 321
section 122 28 clause 56(1) 321
Commonwealth clause 56(2) 321
Administrative Decisions Judicial clause 62(1) 321
Review Act 1977 (Cth) 328 clause 62(2) 321
Anti-Terrorism Act (No. 2) 2005 Part 3 322
(Cth) 261–2 section 6 97
Anti-Terrorism Act 2004 (Cth) 260 section 123(2)(a) 326
Australian Capital Territory section 147 326
Government Service section 148 324
(Consequential Provisions) Act section 150 326
1994 (Cth) 228 section 179(1) 327
Australian Communications and section 180 327
Media Authority Act 2005 Cheques Act 1986 (Cth)
(Cth) 286 section 10 36
Australian Security Intelligence Circuit Layouts Act 1989 (Cth) 123,
Organisation Act 1979 (Cth) 124, 366
259 section 5 123, 124
section 25(5) 259 section 11 123
section 4 259 section 17 123
Australian Security Intelligence section 19(3) 124
Organisation Legislation section 21(1) 124

xxv
xxvi TABLE OF STATUTES

Commonwealth (cont.) section 115(5)–(8) 92, 102

section 22 124 section 116 92
section 23 124 sections 116AA–116AJ 101
section 25 124 sections 116AK–116AQ 99
section 27(1)–(2) 124 section 116B 372
section 27(4) 124 sections 116B–116D 100
Classification (Publications, Films and section 116C 373
Computer Games) Act 1995 section 116CA 51
(Cth) 319 section 116D 374
Communications Legislation sections 119–125 92
Amendment (Content Services) section 132AC 102
Act 2007 (Cth) 318 section 195AXI 101
Copyright Act 1968 (Cth) 90, 92, section 196(3) 37
96, 98, 105, 348, 365–74 section 196AW 101
Division 5 98 Copyright Amendment (Digital
Part III 90 Agenda) Act 2000 (Cth)
Part IV 91 106
Part VAA 102 Crimes Act 1914 (Cth) 268, 274,
Part VB 99 275
section 10 96, 97, 100, 365–70 Part VIIC 222
section 13(2) 105 Division 5 225
section 14 92, 93 section 3LA 274
section 24 91 Crimes Legislation Amendment
section 31 102, 370–1 (Telecommunications Offences
section 31(1) 91 and Other Measures) Act
section 31(1)(a)(i) and (b)(i) 93 (No. 2) 2004 (Cth) 268, 270,
section 31(1)(a)(iv) and (b)(iii) 294
97 Criminal Code 1995 (Cth) 259, 268,
section 31(1)(a)(vi)–(vii) 93 269, 270, 271, 283
section 32 371 Dictionary 269, 270
section 33 372 Division 473 270
section 33(2) 91 Division 474 270
section 33(3) 91 Part 10.6 270, 295
section 33(4) 91 section 72.1 258
section 39(1) 92 section 80.1 258
section 39A 99 section 100.1 259
section 39B 101 section 100.1(1) 260
section 40 98 section 100.1(2) 260
sections 40–42 98 section 100.1(2)e 260
section 43A 99 section 100.1(3) 260
section 43A(1) 109 section 102.1 258
section 43B 99 section 102.5 258
section 101 105 section 102.6 258
section 101(1A)(a) 106 section 102.7 258
section 101(1A)(b) 106, 107 section 103.1 258
section 109A 101 section 115.1 258
section 111 101 section 471.10 257
section 112E 105, 108 section 471.11 257
section 115(2) 92 section 471.12 257
 TABLE OF STATUTES xxvii

section 473.1 272 Cybercrime Act 2001 (Cth) 3, 268,

section 474.1 270 274
section 474.2 270 Data-Matching Program (Assistance
section 474.5 271 and Tax) Act 1990 (Cth)
section 474.6 271 222, 225
section 474.7 271 Do Not Call Register (Consequential
section 474.8 271 Amendments) Act 2006 (Cth)
section 474.9 271 291
section 474.10 271 Do Not Call Register Act 2006 (Cth)
section 474.11 271 291
section 474.14 271 Electronic Transactions Act 1999
section 474.15 271 (Cth) 27, 28, 56, 86, 297,
section 474.16 271 306
section 474.17 271 Explanatory Memorandum
section 474.18 271 paragraph 49 49
section 474.19 272 section 1 29
sections 474.19–474.29 section 2 29
271 section 3 27, 29
section 474.20 272 section 4 29
section 474.21 273 section 5 28, 29, 56, 82
section 474.22 272 section 6 28, 29
section 474.23 272 section 7 29
section 474.24 272, section 8 28, 29, 35
273 section 9 29
section 474.27 273 section 9(1) 37
section 474.29A 273 section 9(1)(d) 48
section 474.29B 32 section 9(2) 37
section 477.1 269 section 9(2)(d) 48
section 477.2 269 section 10 29, 39
section 477.3 269 section 10(1) 40, 80
section 478.1 269 section 10(1)(d) 48
section 478.2 270 section 11 29, 47
section 478.3 270 section 11(1)(e) 48
section 478.4 270 section 11(2)(e) 48
Criminal Code Amendment section 12 29
(Anti-Hoax and Other section 12(1) 52
Measures) Act 2002 (Cth) section 12(2) 53
257 section 12(3) 54
Criminal Code Amendment (Offences section 12(4) 53
Against Australians) Act 2002 section 13 29, 61
(Cth) 259 section 14 29, 55, 56, 249
Criminal Code Amendment (Suicide section 15 29
Related Material Offences) section 15(1) 62
2004 (Cth) 273 section 15(2) 62
Criminal Code Amendment section 16 29
(Suppression of Terrorist Electronic Transactions Regulations
Bombings) Act 2002 (Cth) 2000 (Cth) 28
258, 265 Schedule 1 33
Customs Act 1901 (Cth) 274 Evidence Act 1995 (Cth) 304, 306
xxviii TABLE OF STATUTES

Commonwealth (cont.) section 7C 225

section 47 304 section 13 223
section 48(1) 305 section 13A 223
section 51 304 Security Legislation Amendment
section 71 86, 245 (Terrorism) Act 2002 (Cth)
sections 160–2 245 258
section 161 245 Spam (Consequential Amendments)
Financial Transaction Reports Act Act 2003 (Cth) 286
1988 (Cth) 294 Spam Act 2003 (Cth) 4, 283, 284–9,
Financial Transaction Reports 291, 314
Regulations 1990 (Cth) 294 Part 4 286
Freedom of Information Act 1982 Part 5 286
(Cth) 233 Part 6 286
Health Records and Information Schedule 1
Privacy Act 2002 (Cth) 226 clause 2 285
Interactive Gambling Act 2001 (Cth) clause 3 285
278, 279 clause 4 285
Part 3 279 Schedule 2
section 15 279 clause 2 288
section 15A 279 clause 4 289
Marine Insurance Act 1909 (Cth) Schedule 3 286
section 27 37 section 16 284
section 28 37 section 16(1) 286, 287
Patents Act 1990 (Cth) 119 section 16(5) 287
section 18 120, 121 section 17 284
section 18(1A) 122 section 18 284
Privacy Act 1988 (Cth) 4, 222, 223, section 18(1) 285
228, 283, 294 section 18(2) 285
Information Privacy Principles section 18(3) 285
222 section 18(4) 285
National Privacy Principles section 18(9) 285
223–5, 386–94 section 20 289
NPP 1 223 section 21 289
NPP 2 223 section 22 289
NPP 3 223 section 41 286
NPP 4 223 Suppression of the Financing of
NPP 5 223 Terrorism Act 2002 (Cth)
NPP 6 223 258, 265
NPP 7 223 Surveillance Devices Act 2004 (Cth)
NPP 8 223 256, 260–1
NPP 9 223 Telecommunications (Interception
NPP 10 223 and Access) Act 1979 (Cth)
Schedule 3 223 261, 274
section 14 222 section 117 274
section 6C 224, 225 section 5D(2)(d) 258
section 6D 224 Telecommunications (Interception)
section 7 223 Amendment (Stored
section 7B(3) 224 Communications) Act 2004
section 7B(4) 224 (Cth) 261
 TABLE OF STATUTES xxix

Telecommunications Act 1997 section 308C 275

(Cth) 270, 274, 286, 315, section 308I 275
366 section 562AB 281
Part 13 225 Criminal Records Act 1991 (NSW)
section 99(1) 319 226
Telecommunications Interception Defamation Act 2005 (NSW)
Legislation Amendment Act Part 3 207
2002 (Cth) 258 section 8 213
section 5(1)(c) 258 section 11 202
Telecommunications Service Provider section 26 205
(Mobile Premium Services) section 32 208
Determination 2005 (No. 1) section 32(3)(f)(i) and (ii)
(Cth) 319 206
Trade Marks Act 1995 (Cth) 111, Electronic Transactions Act 2000
149 (NSW) 27, 28, 32,
section 6 111 297
section 10 113 Part 2A 63, 248
section 14 113 section 1 29
section 17 110 section 2 29
section 20 111 section 3 29
section 27 111 section 4 29
section 120 112–13, 147 section 5 29, 56, 82
section 120(3) 146 section 6 28, 29
section 120(3)(4) 113 section 7 29, 35
section 120(3)(d) 149 section 8 29
section 120(4) 146 section 8(1) 37
section 146 118 section 8(2) 37
Trade Practices Act 1974 (Cth) 72, section 9 29, 39
112, 117, 159, 162, 193, 250, section 9(1) 40, 80
251 section 10 29, 47
Part V 115 section 11 29
section 52 117, 118, 157, 158, section 11(1) 52
159, 251 section 11(2) 53
section 53 117, 157, 251 section 11(3) 54
section 53(c) 159 section 11(4) 53
section 53(d) 159 section 12 29, 55, 56, 61,
section 75AZC 158 249
New South Wales section 13 29
Access to Neighbouring Land Act 2000 section 14 29
(NSW) section 14(1)6 62
section 16 226 section 14(2) 62
section 26 226 section 15 29
Contracts Review Act 1980 (NSW) Electronic Transactions Regulations
72 2007 (NSW)
Conveyancing Act 1919 (NSW) regulation 4 33
section 54A 36, 39 regulation 5(f) 33
Crimes Act 1900 (NSW) regulation 7 33
section 308 275 Evidence Act 1995 (NSW) 304
sections 308–308H 276 section 47 304
xxx TABLE OF STATUTES

New South Wales (cont.) Defamation Act 2005 (Qld)

section 48(1) 305 Part 3 207
section 51 304 section 8 213
section 71 86, 245 section 11 202
sections 160–2 245 section 26 205
section 161 245 section 32 208
Fair Trading Act 1987 (NSW) 159 section 32(3)(f)(i) and (ii)
Freedom of Information Act 1989 206
(NSW) 226, 233 Electronic Transactions (Queensland)
Health Records and Information Act 2001 (Qld) 27, 28,
Privacy Act 2002 (NSW) 226 297
Limitation Act 1969 (NSW) 32, Schedule 1
45 clause 16 33
section 14B 210 Schedule 2 56
section 54 32 section 1 29
section 56A 210 section 2 29
Listening Devices Act 1984 (NSW) section 3 29
226 section 4 29
Privacy and Personal Information section 5 29
Protection Act 1998 (NSW) section 6 29, 82
226 section 7 28, 29
Privacy Committee Act 1975 (NSW) section 8 29, 35
222, 226 sections 9–13 29
State Records Act 1998 (NSW) 226 section 11 37
Telecommunications (Interception) section 12 37
(New South Wales) Act 1987 section 14 40, 80
(NSW) 226 sections 14–15 29, 39
Workplace Surveillance Act 2005 sections 16–18 29, 47
(NSW) 226, 238 section 19 52
section 10 239 sections 19–21 29, 53
section 25 238 section 20 53
Workplace Video Surveillance Act section 20(3) 54
1998 238 sections 22–25 29
Queensland section 23 55, 249
Criminal Code 1899 (Qld) 294 section 24 56
section 228 276 section 25 61
section 359A–359F 281 section 26 29
section 398 294 section 26(1) 62
section 408C 294 section 26(2) 62
section 408C(1) 294 section 27 29
section 408D 275 Evidence Act 1977 (Qld)
section 408D(2) 275 section 95 301
section 408D(3) 275 section 95(6) 303
section 408E 275, 276 Freedom of Information Act 1992
section 427(1) 294 (Qld) 226, 233
section 441 294 Invasion of Privacy Act 1971 (Qld)
Criminal Law (Rehabilitation of 226
Offenders) Act 1986 (Qld) Invasion of Privacy Regulations 1998
226 (Qld) 226
 TABLE OF STATUTES xxxi

Legislative Standards Act 1992 (Qld) section 14 29

section 4(5) 33 section 14(1) 62
Limitation of Actions Act 1974 (Qld) section 14(2) 62
section 10AA 210 section 15 29
Limitation of Actions Act 1974 (Qld) Electronic Transactions Regulations
section 32 210 2002 (SA)
Police Powers and Responsibilities Act regulation 4 33
2000 (Qld) 226 regulation 5 33
Property Law Act 1974 (Qld) Evidence Act 1929 (SA)
section 10 36 section 34C 302
section 59 36, 39 section 55B 302
Public Records Act 2002 (Qld) 226 Freedom of Information Act 1991
Whistleblowers Protection Act 1994 (SA) 227, 233
(Qld) 226 Law of Property Act 1936 (SA)
South Australia section 26 39
Criminal Law Consolidation Act 1935 Limitation of Actions Act 1936 (SA)
(SA) section 37(1)(2) 210
Part 5A 294 Listening and Surveillance Devices Act
section 19AA 281 1972 (SA) 227
section 144B 294 State Records Act 1997 (SA) 227
section 144C 294 Summary Offences Act 1953 (SA)
Defamation Act 2005 (SA) section 44 275
Part 3 207 sections 44–44A 276
section 8 213 Telecommunications (Interception)
section 11 202 Act 1988 (SA) 227
section 24 205 Tasmania
section 30 208 Annulled Convictions Act 2003 (Tas)
section 30(3)(f)(i) and (ii) 206 227
Electronic Transactions Act 2000 (SA) Archives Act 1983 (Tas) 227
27, 28, 297 Conveyancing Law of Property Act
section 1 29 1884 (Tas)
section 2 29 section 36 39
section 3 29 Criminal Code 1924 (Tas)
section 4 29 section 192 281
section 5 29, 56, 82 section 257A–257F 276
section 6 28, 29 section 257C 275
section 7 29, 35 section257D 275
section 8 29, 39 Defamation Act 2005 (Tas)
section 8(1) 37, 40, 80 Part 3 207
section 8(2) 37 section 8 213
section 9 29 section 11 202
section 10 29, 47 section 20A(1)(2) 210
section 11 29 section 26 205
section 11(1) 52 section 32 208
section 11(2) 53 section 32(3)(i) and (ii) 206
section 11(3) 54 Electronic Transactions Act 2000
section 11(4) 53 (Tas) 27, 28, 297
section 12 29 section 1 29
section 13 29, 55, 56, 61, 249 section 2 29
xxxii TABLE OF STATUTES

Tasmania (cont.) section 11 202

section 3 29, 56, 82 section 26 205
section 4 28, 29 section 32 208
section 5 29, 35 section 32(3)(i) and (ii) 206
section 6 29 Electronic Transactions (Victoria) Act
section 6(1) 37 2000 (Vic) 27, 28, 297,
section 6(2) 37 348–56
section 7 29, 39 section 1 29
section 7(1) 40, 80 section 2 29
section 8 29, 47 section 3 29, 56, 82
section 9 29 section 4 29
section 9(1) 52 section 5 29
section 9(2) 53 section 6 28, 29
section 9(3) 54 section 7 29, 35
section 9(4) 53 section 8 29
section 10 29 section 8(1) 37
section 11 29, 55, 56, 61, 249 section 8(2) 37
section 12 29 section 9 29, 39
section 12(1) 62 section 9(1) 40, 80
section 12(2) 62 section 10 29, 47
section 13 29 section 11 29
section 14 29 section 11(1) 52
Electronic Transactions Regulations section 11(2) 53
2001 (Tas) section 11(3) 54
regulation 4(a) 33 section 11(4) 53
Evidence Act 2001 (Tas) 304 section 12 29, 55, 56, 61, 249
section 47 304 section 13 29
section 48(1) 305 section 14 29
section 51 304 section 14(1) 62
section 71 245 section 14(2) 62
sections 160–162 245 section 15 29
section 161 245 Electronic Transactions (Victoria)
Freedom of Information Act 1991 Regulations 2000
(Tas) 227, 233 regulation 5 33
Listening Devices Act 1991 (Tas) Evidence Act 1958 (Vic)
227 section 55 303
Personal Information and Protection Freedom of Information Act 1982
Act 2004 (Tas) 227 (Vic) 226, 233
Telecommunications (Interception) Health Records Act 2001 (Vic) 225,
Tasmania Act 1999 (Tas) 226
227 Information Privacy Act 2000 (Vic)
Victoria 225, 226
Crimes Act 1958 (Vic) Instruments Act 1958 (Vic)
section 21A 281 section 126 39
section 247–247H 276 Limitation of Actions Act 1958 (Vic)
section 247B 275 section 23B 210
Defamation Act 2005 (Vic) Public Records Act 1973 (Vic) 226
Part 3 207 Surveillance Devices Act 1999 (Vic)
section 8 213 225, 226, 261
 TABLE OF STATUTES xxxiii

Telecommunications (Interception) section 79C 303

(State Provisions) Act 1988 Freedom of Information Act 1992
(Vic) 226 (WA) 226, 233
Terrorism (Community Protection) Limitation Act 2005 (WA)
Act 2003 (Vic) 262 section 15 210
Western Australia section 40(3) 210
Criminal Code Act 1913 (WA) Sale of Goods Act 1895 (WA)
section 338E 281 section 4 37
section 440A 275, 276 Spent Convictions Act 1988 (WA)
Defamation Act 2005 (WA) 227
Part 3 207 State Records Act 2000 (WA) 227
section 8 213 Statute of Frauds 1677 (Imp) (WA)
section 11 202 39
section 26 205 Surveillance Devices Act 1998 (WA)
section 32 208 227
section 32(3)(f)(i) and (ii) 206 Telecommunications (Interception)
Electronic Transactions Act 2003 Western Australia Act 1996
(WA) 27, 28, 297 (WA) 227
section 1 29 Australian Capital Territory
section 2 29 Civil Law (Property) Act 2006 (ACT)
section 3 29 section 201 39
section 5 29, 56, 82 Civil Law (Wrongs) Act 2002 (ACT)
section 6 28, 29 Part 9.3 207
section 7 29 section 120 213
section 8 29, 50 section 123 202
section 8(1) 37 section 136 205
section 8(2) 37 section 139C 208
section 9 29, 39 section 139C(3)(f)(i) and (ii)
section 9(1) 40, 80 206
section 10 29, 47 Crimes Act 1900 (ACT)
section 11 29 section 35(2)(f)(g)(h) 281
section 11(1) 52 Criminal Code 2002 (ACT)
section 11(2) 53 section 412–421 276
section 11(3) 54 section 415 275
section 11(4) 53 section 416 275
section 12 29 Electronic Transactions Act 2001
section 13 29, 55, 56, 61, 249 (ACT) 27, 28, 297
section 14 29 dictionary 56
section 14(1) 62 section 1 29
section 14(2) 62 section 3 29
section 15 29 section 4 29
Electronic Transactions Regulations section 5 29, 82
2003 (WA) section 7 29, 35
regulation 3 33 section 8 29
regulation 5 33 section 8(1) 37
Evidence Act 1906 (WA) 303 section 8(2) 37
section 73A(1) 303 section 9 29, 39
section 73A(2) 303 section 9(1) 40, 80
section 73A(3) 304 section 10 29, 47
xxxiv TABLE OF STATUTES

Australian Capital Territory (cont.) section 11 29

section 11 29 section 11(1) 52
section 11(1) 52 section 11(2) 53
section 11(2) 53 section 11(3) 54
section 11(3) 54 section 11(4) 53
section 11(4) 53 section 12 29
section 12 29 section 13 29, 55, 56, 61, 249
section 13 29, 55, 56, 61, 249 section 14 29
section 14 29 section 14(1) 62
section 14(1) 62 section 14(2) 62
section 14(2) 62 section 15 29
section 15 29 Electronic Transactions (Northern
Freedom of Information Act 1989 Territory) Regulations
(ACT) 233 regulation 2 33
Limitation Act 1985 (ACT) Evidence Act (NT)
section 21B(1)(2) 210 section 26D 302
Northern Territory Information Act 2002 (NT)
Criminal Code Act 1983 (NT) 227
section 125A 276 Law of Property Act 2000 (NT)
section 125B 276 section 62 39
section 189 281 Limitation Act 2005 (NT)
section 222 276 section 12(2)(b) 210
section 276–276F 276 section 44A(2) 210
section 276B 275 Imperial
section 276E 276 Civil Evidence Act 1995 (UK)
Defamation Act 2006 (NT) 306
Part 3 207 section 8 307
section 7 213 Electronic Communications Act 2000
section 10 202 (UK) 29, 30
section 23 205 section 7(2)(3) 30
section 29 208 Freedom of Information (Scotland)
section 29(3)(f)(i) and (ii) Act 2002 (UK) 233
206 Freedom of Information Act 2000
Electronic Transactions (Northern (UK) 233
Territory) Act 2000 (NT) 27, Land Registration Act 2002 (UK) 29,
28, 44, 297 30
section 1 29 Part 8 29
section 2 29 section 91 29, 30
section 3 29 section 91(10) 30
section 4 29 Licensing Act of 1662 (Imp) 90
section 5 29, 56, 82 Statute of Anne 1702 (Imp) 90
section 6 28, 29 Statute of Frauds 1677 (Imp) 36,
section 7 29, 35 39, 42, 78, 80, 297
section 8 29 Preamble 297
section 8(1) 37 section 4 36, 42, 75, 78, 297
section 8(2) 37 section 17 36
section 9 29, 39 Trade Marks Act 1994 (UK)
section 9(1) 40, 80 149
section 10 29, 47 section 10 147
 TABLE OF STATUTES xxxv

Canada section 254 277

Electronic Transactions Act 2001 Crimes Amendment Act 2003 (NZ)
(Canada) 51 276
section 4 51 Electronic Transactions Act 2002 (NZ)
Uniform Electronic Commerce Act 28, 34, 35, 63, 82, 306
1999 (Canada) 52 Schedule 34
Europe section 1 29
Directive 1999/93/Ec of the section 2 29
European Parliament and of section 3 29
the Council 86 section 4 29
Directive 96/9/EC of the European section 5 46, 82
Parliament 115 sections 5–6 29
European Patent Convention section 6 28
article 52(1) 120 section 7 29
Privacy and Electronic section 8 29, 35
Communications Directive sections 9–13 29
2003 290 section 10(1) 56
India section 11 57
Indian Evidence Act 1872 (India) sections 12–13 61
307 section 14 29, 34
section 22 307 section 18 39
section 61 307 sections 18–21 29
section 62 308 section 22 45
section 63 308 sections 22–24 29
section 64 307 section 23 46
section 65 307 section 23(1)(b) 46
Information Technology Act 2000 section 24 46
(India) 179 section 25 52, 53
Right to Information Act 2005 (India) sections 25–26 29
233 sections 26–27 53
Trade Marks Act 1999 (India) sections 28–29 29
section 2(zb) 150 section 29 47, 48
section 29 147 section 30 63
New Zealand section 36 29
Copyright Act 1994 (NZ) 90 Electronic Transactions Regulations
section 16 91 2003 (NZ) 28
section 22 91 Evidence Act 2006 (NZ) 306
section 42 98 section 137(1) 306
section 43 98 section 137(2) 306
section 176 98 Subpart 8 302
Crimes Act 1961 (NZ) 276 Layout Designs Act 1994 (NZ) 123
Part 11 281 Limitation Act 1950 (NZ)
section 248 277 section 4 210
section 249 276 Official Information Act 1982 (NZ)
section 250(1) 277 233
section 250(2) 277 Privacy Act 1993 (NZ) 240
section 251 277 Trade Marks Act 2002 (NZ)
section 252 277 111
section 253 277 section 89(1)(d) 147, 149
xxxvi TABLE OF STATUTES

New Zealand (cont.) Telecom Reform Act 1996 (US)

Unsolicited Electronic Messages Act 14
2007 (NZ) 283, 284, 289 Trademark Dilution Act 1995 (US)
section 32 290 147
section 45 290 Uniform Electronic Transactions Act
Singapore 1999 (US) 26, 29, 51
Electronic Transactions Act 1998 section 5 51
(Singapore) 44, 82 section 5(b) 51
section 2 44, 83, 84 section 14 73
Trade Marks Act 1998 (Singapore) Uniform Single Publication Act (US)
149 212
section 27(3)(d) 149 International Conventions
United States Convention for the Suppression of
Anti-Cybersquatting Consumer Unlawful Acts against the
Protection Act 1999 (US) Safety of Civil Aviation 1971
147, 148 264
section 1129 148 Convention for the Suppression of
Business Method Patent Improvement Unlawful Acts against the
Act (US) 120 Safety of Maritime Navigation
CAN-SPAM Act 2003 (US) 290 1988 (Rome) 264
Communications Decency Act 1996 Convention for the Suppression of
(US) 272, 317 Unlawful Seizure of Aircraft
section 203(c)(1) 209 1970 (Hague Convention)
Computer Matching and Privacy 263
Protection Act 1988 (US) Convention on Offences and Certain
241 Other Acts Committed on
Copyright Act 1976 (US) 102 Board Aircraft 1963 (Tokyo
section 107 103 Convention) 263
Electronic Signatures in Global and Convention on the Physical Protection
National Commerce Act 2000 of Nuclear Material 1980
(US) 51 (Nuclear Materials
section 101(c)(1)(C)(ii) 51 Convention) 265
Federal Uniform Rules of Evidence Convention on the Prevention and
307 Punishment of Crimes Against
article X Internationally Protected
rule 1001 307 Persons 1973 264
rule 1002 307 Council of Europe Convention on
rule 1003 307 Cybercrime 268, 276
Freedom of Information Act 1966 European Patent Convention
(US) 233 article 52(1) 120
Lanham (Trademark) Act (US) International Convention against the
148 Taking of Hostages 1979
section 43 148 (Hostages Convention) 265
PATRIOT Act 2001 (US) 235, 241, International Convention for the
257 Marking of Plastic Explosives
Privacy Act 1974 (US) 233, 241 for the Purposes of Detection
section 552a 241 1991 (Montreal) 266
Single Publication Act (Idaho) International Convention for the
section 6-702 212 Suppression of Terrorist
 TABLE OF STATUTES xxxvii

Bombings (New York, 1997) article 4 358

265 article 5 31, 35, 358
International Convention for the article 5bis 35, 358
Suppression of the Financing of articles 5–15 27
Terrorism 1999 (New York) article 6 359
265 article 7 333, 334, 359
Optional Protocol on the Sale of article 8 63, 359
Children, Child Prostitution article 9 306, 360
and Child Pornography article 9(2) 306
(UNICEF) 277 article 10 360
Protocol for the Suppression of article 11 35, 49, 360
Unlawful Acts Against the article 12 360
Safety of Fixed Platforms article 13 361
Located on the Continental article 14 361
Shelf 1988 (Rome) article 15 362
(Supplementary to the article 16 363
Convention for the article 17 363
Suppression of Unlawful Acts Official Guide 26, 34, 36, 40, 44,
Against the Safety of 48, 49, 333
Maritime Navigation 1988 UNCITRAL Model Law of Electronic
(Rome)) 264 Signatures 82, 84, 86, 331,
Supplementary Protocol for the 332, 333, 334
Suppression of Unlawful Acts of article 2 82
Violence at Airports Serving United Nations Convention on the
International Civil Aviation Rights of the Child 277, 278,
1988 (Montreal) 264 316
UNCITRAL Model Law of Electronic United Nations International
Commerce 1996 9, 25–7, Covenant on Civil and
28, 29, 31, 34, 35, 36, 40, 45, Political Rights (ICCPR)
48, 49, 51, 54, 56, 62, 63, 64, 196, 204, 232
82, 86, 305, 331, 332, 334, article 17 197, 232
357–64 artilce 19 196
article 1 31, 357 Universal Declaration of Human
article 2 306, 358 Rights 217, 232
article 3 358 article 12 232
1
The law of electronic commerce

Electronic commerce refers to all commercial transactions based on the elec-

tronic processing and transmission of data, including text, sound and images.
This involves transactions over the internet, plus electronic funds transfers and
Electronic Data Interchange (EDI).
On one level, electronic commerce began in the mid-1800s, when the first con-
tract was entered into using the telegraph or telephone. However, the expres-
sion ‘electronic commerce’ is typically used in connection with the expansion
of commerce using computers and modern communications, most notably the
internet and cyberspace. The development of security protocols has aided the
rapid expansion of electronic commerce by substantially reducing commercial
risk factors.
The advantages of electronic commerce to commercial parties include ease of
access, anonymous browsing of products, larger choice, the convenience of shop-
ping from the computer and enormous efficiencies. The disadvantages include
the potential for invasion of privacy and security risks. There are also questions
regarding jurisdiction, standards, protection of intellectual property, taxation,
trade law and many other issues. Nevertheless, acceptance of electronic products
and services has grown substantially.
Security is of paramount importance in electronic commerce. Public key cryp-
tology was invented in response to security concerns and has revolutionised
electronic commerce. Communications are now relatively secure: digital signa-
tures or certificates permit the authentication of the sender of a message or of an
electronic commerce product.
This book addresses legal issues relating to the introduction and adoption
of various forms of electronic commerce. Whether it is undertaking a commer-
cial transaction on the World Wide Web, sending electronic communications to

1
2 LAW OF ELECTRONIC COMMERCE

enter into commercial arrangements, downloading material subject to copyright

or privacy concerns about our digital personas, there are legal considerations.
Parties must consider the risks of electronic commerce, whether electronic writ-
ing and signatures are equivalent to paper writing or wet ink signatures; which
jurisdiction and which law governs a dispute between parties, if the parties are in
different countries from the servers. This book addresses intellectual property,
cybercrime, surveillance and domain name usage and disputes.

Electronic commerce law

An examination of the law of electronic commerce must begin with a fundamen-

tal understanding of the law and its role in society as it has evolved over the
centuries. It necessitates understanding terrestrial norms, social behaviour and
the application of the rule of law. These principles must be applied to new circum-
stances, infrastructure and contexts, even if this challenges such foundations of
society as sovereignty and human rights. It is an exciting time to be charting the
course and watching as legislators, courts, merchants and the populace wrestle
with this new epoch. In the 18th and 19th centuries there may have been a similar
opportunity to observe principles evolving, as there were new developments in
relation to consideration (in contract law) and the postal acceptance rule (also
in contract law), and as principles of equity matured. But such development was
at a snail’s pace compared with the eruption of the law of electronic commerce
over the last two decades.
The majority of legal problems arising through the use of electronic commerce
can be answered satisfactorily by the application of standard legal principles.
Contract law, commercial law and consumer law, for example, all apply to the
internet, email communications, electronic banking and cyberspace generally.
However, cyberspace gives rise to unique and unusual circumstances, rights,
privileges and relationships that are not adequately dealt with by traditional
law. This has necessitated legislation, international agreements and a plethora
of cases before the courts to resolve myriad questions. The expression ‘electronic
commerce law’ is used to describe all changes and additions to the law that are
a result of the electronic age.
Justice Fryberg,1 in an address to the Australian Conference on the Law of
Electronic Commerce, asked, ‘Is there such a thing as Electronic Commerce Law?
I suggest there is not’,2 although he acknowledged that he had completed a
keynote address on precisely that topic. Joseph Sommer3 argued that ‘cyberlaw’
was non-existent as a separate body of law, and that cyberspace ‘is a delightful
new playground for old games’:

1 Justice of the Supreme Court of Queensland.

2 Supreme Court of Queensland publications: archive.sclqld.org.au/judgepub/2003/fry070403.pdf.
3 ‘Against cyberlaw’, (2000) 15 Berkeley Tech L J 1145.
 THE LAW OF ELECTRONIC COMMERCE 3

[N]ot only is ‘cyberlaw’ nonexistent, it is dangerous to pretend that it exists. A lust

to define the future can be very dangerous, especially when we cannot even agree on
the present. A lust to define the law of the future is even worse, since law tends to
evolve through an inductive accretion of experience. It is much safer to extract first
principles from a mature body of law than to extract a dynamic body of law from
timeless first principles. An overly technological focus can create bad taxonomy and
bad legal analysis, at least. At worst, it can lock us into bad law, crystallizing someone’s
idea of a future that will never be.4

Judge Frank Easterbrook5 initiated the debate with his article ‘Cyberspace and
the law of the horse’. Easterbrook argued that cyberlaw is unimportant because
it invokes no first principles.6 He made reference to the comment of a former
Dean of the University of Chicago Law School that a course in the law of the
horse was not offered: ‘Lots of cases deal with sales of horses; others deal with
people kicked by horses; still more deal with the licensing and racing of horses,
or with the care veterinarians give to horses, or with prizes at horse shows.’
Nevertheless there is no discrete body of horse law.7 Judge Easterbrook argued
that there was no reason to teach the ‘law of cyberspace’, any more than there
was reason to teach the ‘law of the horse’, because neither, he suggested, would
‘illuminate the entire law’. By analogy he proclaimed that cyberlaw did not
exist.8
In his article ‘The law of the horse: What cyberlaw might teach’, Lawrence
Lessig9 responded to Easterbrook’s assertions. Through a series of examples he
demonstrated that cyberlaw or electronic commerce law, however described,
forms a unique area of legal discourse. Lessig referred to privacy and spam in
cyberspace. He argued that any lesson about cyberspace requires an understand-
ing of the role of law, and that in creating a presence in cyberspace, we must all
make choices about whether the values we embed there will be the same values
we espouse in our real space experience. Understanding how the law applies in
cyberspace in conjunction with demands, social norms and mores, and the rule
of cyberspace, will be valuable in understanding and assessing the role of law
everywhere.
Easterbrook and Lessig’s disquisitions are now dated by a decade in a field
which has advanced more quickly than any other field of law. The law of elec-
tronic commerce has increasingly become a distinct class of study, with legal
specialists, dedicated monographs and courses in every law school. Legisla-
tion has been deemed necessary for several cyber issues. Those who scorned
words like ‘cyberlaw’ and ‘cybercrime’ perhaps winced at the introduction of the
Australian Cybercrime Act 2001 (Cth). Traditional laws proved inadequate,

4 Ibid.
5 Now Chief Judge of the US Court of Appeals for the Seventh Circuit.
6 ‘Cyberspace and the law of the horse’, (1996) U Chi Legal F 207.
7 Interestingly, the US law firm of Miller, Griffin and Marks advertises that it specialises in ‘commercial,
corporate and equine matters’.
8 See also James Boyle, ‘Foucault in cyberspace: Surveillance, sovereignty, and hard-wired censors’, (1997)
University of Cincinnati Law Review 66, 177.
9 ‘The law of the horse: What cyberlaw might teach’, (1999) 113 Harv L Rev 501.
4 LAW OF ELECTRONIC COMMERCE

necessitating legislation on computer-related crime, credit card fraud, bank card

fraud, computer forgery, computer sabotage, unauthorised access to computer
systems, unauthorised copying or distribution of computer programs, cyber stalk-
ing, theft of intellectual property and identity theft.
Spam has become a real economic waste for virtually all business, resulting in
legislation and international agreements.10 The digitalisation of data results in
real privacy concerns. In response to this the Australian Privacy Act 1988 (Cth)
was overhauled in 2000 to make the private sector accountable. The Australian
Law Reform Commission (ALRC) is currently undertaking a further review, with
recommendations to expand privacy laws so that they deal with technological
developments.
Domain names are valuable business identifiers, traded in the millions of
dollars and subject to numerous disputes. Most national domain name admin-
istrators have introduced dispute resolution procedures. The courts have dra-
matically expanded the tort of passing off, in a manner not contemplated until
recently, in an attempt to provide remedies.
Conflict of laws principles in cyberspace have been inadequately served by
traditional principles established over centuries. The courts have formed new
approaches. Online defamation, for instance, is unlike the static occurrences.
Now, a defamation statement can be published continuously worldwide 24 hours
a day. The courts have had to reconsider the single publication rule, and the
applicability of local laws to a website intended for another jurisdiction, but with
global reach.
Child pornography, terrorism, suicide materials, spyware and censorship are
issues on which laws vary dramatically internationally, and yet each website is
typically available globally. Nations have different ages at which a person is no
longer regarded as a child; freedom of speech issues arise with terrorism issues
(plans to make a bomb) and suicide information, but the law must address the
easy reach of such material in the digital age, in ways that in other contexts may
be considered draconian. Censorship laws for print and television are ineffective
for online materials. What is electronic writing, and an electronic signature? The
range of issues related to electronic contracting has resulted in the Electronic
Transactions Acts internationally. Evidentiary issues arise in relation to digitising
paper documents and printing out electronic documents. The internet raises a
range of intellectual property issues, such as peer-to-peer file sharing (music
and videos in particular), digital rights management, time shifting and format
shifting. Electronic commerce by its nature does not recognise borders and it
raises questions regarding security of transactions, standards and protection,
legally and otherwise, in an international context.

10 For example the Spam Act 2003 (Cth) and the Memoranda of Understanding between Australia, South
Korea and the US. See Chapter 16.
 THE LAW OF ELECTRONIC COMMERCE 5

Many international organisations have spent considerable time and resources

on resolving legal issues and difficulties in electronic commerce: the UN Com-
mission on International Trade Law (UNCITRAL), the International Chamber of
Commerce (ICC), the Asia-Pacific Economic Cooperation (APEC), the Organisa-
tion for Economic Cooperation and Development (OECD) and the World Trade
Organization (WTO) are some examples.11
The law of electronic commerce (or cyberlaw) has emerged as a new, disparate
and coherent body of law.

Internet use in Australia

According to the Australian Bureau of Statistics (ABS), as at the end of the March
quarter 2007, there were 6.43 million active internet subscribers in Australia,
comprised of 761 000 business and government subscribers and 5.67 million
household subscribers. The number of non dial-up subscribers was 4.34 million;
the number of dial-up subscribers was 2.09 million. Non dial-up subscribers
increased by 16 per cent between September 2006 and March 2007, while dial-
up dropped by 16 per cent. The growth in non dial-up was driven mainly by
household subscribers. Non dial-up subscribers represented 67 per cent of total
internet subscribers in Australia at the end of March 2007, compared with 60 per
cent at the end of September 2006. Digital Subscriber Line (DSL) continued to
be the dominant access technology used by non dial-up subscribers (3.36 million
or almost 78 per cent of total non dial-up subscribers were connected this way).
Connections with download speeds of 1.5 Mbps or greater had increased by
43 per cent by March 2007 to 1.56 million (there were 1.09 million at the end of
September 2006).
Home internet access across Australia reached 67 per cent in 2007, up from
35 per cent in 2001. In 2006, 66 per cent of homes in major cities had internet
access, compared with 42 per cent for very remote Australia. Broadband was
used by 46 per cent of homes in major cities and 24 per cent in very remote
Australia.12
The ABS report also found that income and education were key factors in
people’s internet access. Households with an income of $2000 or more per week
were three times more likely to have broadband than households on less than
$600 per week. Families with children under 15 (or dependant students) were
three to four times more likely to have internet access than other families. People
in low-skill occupations were about a quarter less likely to have broadband than
those with higher skills. People not in the labour force were 18 per cent less
likely to have broadband than those in the labour force. Unemployed people

11 Other bodies include the Free Trade Agreement of the Americas, the International Telecommunications
Union and the International Organisation for Standardisation. See Chapter 19.
12 In 2006 the ACT had the highest connection rate, with 75% of all homes connected and 53% of these
on broadband connections. Similar rates were seen in New South Wales (63% total and 42% broadband),
Victoria (63% and 42%), Queensland (64% and 41%) and Western Australia (65% and 41%). The lowest
connection rate was in Tasmania (55% and 28%).
6 LAW OF ELECTRONIC COMMERCE

were 12 per cent less likely to have broadband than employed people. Indige-
nous households are about half as likely to have broadband as non-indigenous
households.

Judicial consideration in Australia

The High Court of Australia has had few opportunities to consider the impact of
electronic commerce, cyberspace and the operation of the internet. Dow Jones v
Gutnick13 in 2002 was one such opportunity. The court considered defamation
on the World Wide Web and whether it was appropriate for the Supreme Court
of Victoria to exercise jurisdiction over a US-based website. This was the first real
opportunity for the court to consider its role in law making and the common law
in the context of cyberspace and electronic commerce.
The nature and essence of the common law makes it amenable to develop-
ment, subject to the Constitution and statute.14 The judiciary, scholars and com-
mentators debate the length and breadth of acceptable developments using var-
ious forms of legal reasoning to justify their individual approaches. Whether the
approach is principle-based, a coherence-based incremental method or policy-
based, development is an integral part of the common law and of our socio-legal
structure.15
In a joint majority judgment Gleeson CJ, McHugh, Gummow and Hayne JJ
accepted the evidence before the judge at first instance, Hedigan J, regarding
‘the unusual features of publication on the internet and the World Wide Web’.
The majority accepted that the internet is ‘a telecommunications network that
links other telecommunication networks . . . [that] enables inter-communication
using multiple data-formats . . . among an unprecedented number of people
using an unprecedented number of devices [and] among people and devices
without geographic limitation’.16 The majority expressed concern regarding the
lack of evidence adduced to reveal what electronic impulses pass or what elec-
tronic events happen in the course of passing or storing information on the
internet. Nevertheless the majority took the opportunity to define a broad range
of internet terms:
14. The World Wide Web is but one particular service available over the Internet. It
enables a document to be stored in such a way on one computer connected to
the Internet that a person using another computer connected to the Internet can
request and receive a copy of the document . . . the terms conventionally used to
refer to the materials that are transmitted in this way are a ‘document’ or a ‘web

13 Dow Jones v Gutnick [2002] HCA 56.

14 See Theophanous v Herald and Weekly Times Limited [1994] HCA 46, especially Brennan J at para 4. See
also D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 and Arthur J S Hall & Co v
Simmons [2000] UKHL 38; [2002] 1 AC 615.
15 For a considered and valuable discourse see Russell Hinchy, The Australian legal system: History, institutions
and method, Pearson Education Australia, Sydney, 2008, in particular, Part Three.
16 Dow Jones v Gutnick [2002] HCA 56, para 13.
 THE LAW OF ELECTRONIC COMMERCE 7

page’ and a collection of web pages is usually referred to as a ‘web site’. A computer
that makes documents available runs software that is referred to as a ‘web server’;
a computer that requests and receives documents runs software that is referred to
as a ‘web browser’.
15. The originator of a document wishing to make it available on the World Wide Web
arranges for it to be placed in a storage area managed by a web server. This process
is conventionally referred to as ‘uploading’. A person wishing to have access to that
document must issue a request to the relevant server nominating the location of
the web page identified by its ‘uniform resource locator (URL)’. When the server
delivers the document in response to the request the process is conventionally
referred to as ‘downloading’.

In the same case Kirby J was more philosophical in discussing the ramifications
of technological developments, quoting Lord Bingham of Cornhill, who said that
the impact of the internet on the law of defamation will require ‘almost every
concept and rule in the field . . . to be reconsidered in the light of this unique
medium of instant worldwide communication’.17
In any reformulation of the common law, Kirby J continued, many factors
would need to be balanced: the economic implications of any change, valid
applicable legislation, the pros and cons of imposing retrospective liability on
persons, and social data and public consultation.18 Most significantly, reform is
the purvey of government; it is not the primary role of the courts. Nevertheless,
as Kirby J pointed out, courts have reversed long-held notions of common law
principle when ‘stimulated by contemporary perceptions of the requirements of
fundamental human rights’.19
As they have recognised the enormity of the impact of the internet as a rev-
olutionary communications giant, courts all over the world have been forced to
reconsider basic principles. Kirby J appropriately quoted noted US jurist Billings
Learned Hand:

The respect all men feel in some measure for customary law lies deep in their nature;
we accept the verdict of the past until the need for change cries out loudly enough to
force upon us a choice between the comforts of further inertia and the irksomeness of
action.20

Of this passage Brennan J, in Theophanous v Herald and Weekly Times Lim-

ited,21 remarked, ‘Other judges find the call to reform more urgent.’22 To varying
degrees the judiciary acknowledges its role in the law-making process, balanc-
ing consistency, cohesion and precedent in an analytical ballet of deductive,
inductive and abductive reasoning. On the one hand, the common law is the

17 Matthew Collins, The law of defamation and the internet, Oxford University Press, Oxford, 2001.
18 Dow Jones v Gutnick [2002] HCA 56, paras 75 and 76.
19 Dow Jones v Gutnick [2002] HCA 56, para 77.
20 Hand, ‘The contribution of an independent judiciary to civilisation’, in Irving Dillard (ed.), The spirit of
liberty: Papers and addresses of Learned Hand, 3rd edn, Alfred A Knopf, New York, 1960.
21 [1994] HCA 46.
22 [1994] HCA 46, para 5.
8 LAW OF ELECTRONIC COMMERCE

rock and the foundation of modern English and colonial law (including Aus-
tralia’s law). On the other hand, it has remained sufficiently flexible to adapt
to modern developments. And so it should. With the advent of new and novel
factual circumstances the judiciary must find solutions for the benefit, stabil-
ity and protection of society and commerce. This has been described as the
‘genius of the common law’: that the courts may adapt principles of past deci-
sions, by analogical reasoning, ‘to the resolution of entirely new and unforeseen
problems’.23 When the new problem is as novel, complex and global as Gutnick’s
case, an opportunity – indeed a duty – arises to fashion and build the common
law.24
Two examples illustrate the best and worst of judicial malleability. The com-
mon law crime of larceny dictates that the prosecution must prove certain ele-
ments of the crime to elicit a conviction. One key element is to prove that the
accused intended to deprive another of property. This is problematic for intan-
gibles. Where a person accesses a computer and ‘steals’ a computer file a curious
thing happens: the information is both stolen and left behind. The development
of common law larceny failed to predict or consider this. Attempts at prosecution
failed. The courts could not or would not modify the well-established common
law offence of larceny to accommodate this development. It was left to the leg-
islature to enact cybercrime legislation to encompass offences that could not be
imagined only a matter of years earlier.25 A reading of the US Supreme Court
decision of Reno v American Civil Liberties Union26 provides a similar missed
opportunity in the US context. On the other hand, the English Court of Appeal,
in the domain name case Marks & Spencer v One in a Million,27 moulded, twisted
and interpreted the five established elements of the tort of passing off to pro-
vide a remedy where one previously did not exist. The result is such a depar-
ture from traditional passing off that it is referred to as ‘domain name passing
off ’.28
This extension of principle when faced with domain name piracy is to be
applauded. In the words of Kirby J, ‘When a radically new situation is pre-
sented to the law it is sometimes necessary to think outside the square.’29 Kirby J
reflected on the specific issue of defamation in the Dow Jones appeal and theo-
rised a re-evaluation and formation of a new ‘paradigm’, and a ‘common sense’
approach to change. His Honour questioned the wisdom of refusing to find a new
remedy in new circumstances, describing it as ‘self-evidently unacceptable’.30

23 Dow Jones v Gutnick [2002] HCA 56, para 91, per Kirby J.
24 For a view of the role and limitations of the judiciary see the judgment of Brennan J in Mabo v Queensland
(No. 2) [1992] HCA 23; (1992) 175 CLR 1.
25 See Chapter 16.
26 521 US 844 (1997). See also American Civil Liberties Union v Reno 929 F. Supp 824 (1996), particularly
the joint judgment of Sloviter CJ, Buckwalter and Dalzell JJ.
27 [1999] 1 WLR 903; [1998] EWCA Civ 1272.
28 See Chapter 9.
29 Dow Jones v Gutnick [2002] HCA 56, para 112.
30 Dow Jones v Gutnick [2002] HCA 56, para 115.
 THE LAW OF ELECTRONIC COMMERCE 9

Change is not new. The lex mercatoria, for example, emerged from the cus-
toms and practices of merchants from the Middle Ages. Rules governing bills of
exchange and letters of credit were crafted by commercial parties long before
the law makers had the opportunity to legislate. Their aim was commerce,
but the result was that commercial customs and practice became recognised
by the courts and then the legislature, both institutions responding to commercial
realities.
In the context of reconceptualisation, Kirby J (in Gutnick’s case) dabbles with
new rules for a ‘unique technology’ and the ‘urgency’ of considering such changes:
To wait for legislatures or multilateral international agreement to provide solutions to
the legal problems presented by the Internet would abandon those problems to ‘ago-
nizingly slow’ processes of lawmaking. Accordingly, courts throughout the world are
urged to address the immediate need to piece together gradually a coherent transna-
tional law appropriate to the ‘digital millennium’. The alternative, in practice, could
be an institutional failure to provide effective laws in harmony, as the Internet itself
is, with contemporary civil society – national and international. The new laws would
need to respect the entitlement of each legal regime not to enforce foreign legal rules
contrary to binding local law or important elements of local public policy. But within
such constraints, the common law would adapt itself to the central features of the
Internet, namely its global, ubiquitous and reactive characteristics. In the face of such
characteristics, simply to apply old rules, created on the assumptions of geograph-
ical boundaries, would encourage an inappropriate and usually ineffective grab for
extra-territorial jurisdiction . . .
Generally speaking, it is undesirable to express a rule of the common law in terms
of a particular technology. Doing so presents problems where that technology is itself
overtaken by fresh developments. It can scarcely be supposed that the full potential
of the Internet has yet been realised. The next phase in the global distribution of
information cannot be predicted. A legal rule expressed in terms of the Internet might
very soon be out of date.31

In some instances, such as electronic banking and finance, commercial parties

have embraced electronic commerce, forging new paths and boldly leading the
way, even in the absence of any adequate laws. In other instances the law makers
have taken the initiative: the UN Commission on International Trade Law (UNCI-
TRAL) in 1996, with the Model Law of Electronic Commerce, is an important
example.32
There are many pitfalls, warnings and surprises in the regulation of electronic
commerce, both practical and legal. These voyages are examined in this book.
The law relating to electronic commerce, the internet and cyberspace requires
careful management by legislators and structured application and development
of existing legal principles by the courts.

Further reading

31 [2002] HCA 56, paras 119 and 125.

32 For details see Chapter 3.
10 LAW OF ELECTRONIC COMMERCE

Justice George Fryberg, Keynote Address to the Australian Conference on the Law of
Electronic Commerce, Brisbane 2003, Supreme Court of Queensland publications:
archive.sclqld.org.au/judgepub/2003/fry070403.pdf.
Billings Learned Hand, ‘The contribution of an independent judiciary to civilisation’, in
Irving Dillard (ed.), The spirit of liberty: Papers and addresses of Learned Hand, 3rd
edition, Alfred A Knopf, New York, 1960.
Russell Hinchy, The Australian legal system: History, institutions and method, Pearson
Education Australia, Sydney, 2008, Part Three.
Neil MacCormick, Legal reasoning and legal theory, Clarendon Law Series, Oxford Univer-
sity Press, Oxford, 1979.
Exploring the Variety of Random
Documents with Different Content
 And he slipped down, tail first through the hole.

Meanwhile the sun climbed higher and higher in the sky. It

warmed the earth, the snow and ice melted, the banks of Winding
River became green, as the leaves came out on the trees and
bushes, and one day Mr. Beaver said:
“Come with me, Toto and Sniffy. You are going to learn how to
gnaw down trees.”
“Are we going to help build the dam bigger?” asked Toto.
“Yes, that’s what you are,” his father said.
He dived down in the water, to slip out of the front door, and the
two beaver boys followed him. Their noses closed, and they kept
their mouths tightly shut while under water. But they had their eyes
open to see where to swim. They came out on top of the water not
far from their own house. But almost as soon as they had poked up
their noses to take long breaths, Toto and Sniffy heard a booming,
whacking noise, and their father cried:
“Back! Back, boys! Dive down! There’s danger!”
 CHAPTER III
TOTO MEETS DON

Y ou may well believe that Toto and Sniffy did not lose any time
diving down under water as soon as they heard their father tell
them to do so. Many times before, when they were first learning to
swim, they had dived down quickly like this just after they had
poked up their noses to get a breath of air. And always their father
or mother had swum with them out of danger.
“What was that whacking noise, Dad?” asked Sniffy, when they
were once more safely back in their stick and mud house.
“That was Mr. Cuppy banging his flat tail on the water to let us
know there was some danger,” answered Mr. Beaver. “Cuppy, or
some of the older beavers, are always on guard at or near the dam.
If they hear, see or smell danger they whack with their tails. And
whenever you hear that whacking sound you little fellows must dive
into the water and swim away just as fast as you can.”
“Oh, now I remember about Mr. Cuppy whacking with his tail!”
exclaimed Toto. “You told us that last summer, didn’t you, Dad?”
“Yes. But the winter has been long, and all that time you have had
no chance to hear Mr. Cuppy bang his tail on the water, so I was
afraid you had forgotten,” said Mr. Beaver.
“I did forget,” answered Sniffy.
“And I did, too,” said Toto. “But now I’m always going to listen for
Mr. Cuppy’s tail.”
“And run and dive into the water as fast as you can when you
hear him whacking and banging,” advised Mr. Beaver. “Now we’ll
wait a little while and then we’ll swim up again. The danger may
have passed.”
Toto and his brother waited with their father perhaps five minutes
in the beaver house. Then, once more, they dived down, out of the
front door, and up into the river, a little farther away. Mr. Beaver
went ahead, and poked up his nose first to look about. He saw a
number of beavers working on the dam, among them Mr. Cuppy.
“Is it all right?” called Mr. Beaver to the old gentleman.
“Yes, come along. We need lots of help to make the dam bigger
and stronger,” answered Mr. Cuppy. “Where are your two boys?”
“Right here,” answered their father. “It’s all right! Bob up your
heads!” he called to Toto and Sniffy.
Up they swam, and soon they were among their friends on the
dam, which was made of a number of trees laid crosswise over the
narrow part of the river. Sticks had been piled back of the trees, and
mud, grass-hummocks, and leaves were piled back of the sticks, so
that very little water could run through. Back of the dam the water
was quite deep, but in front it was very shallow. The beavers all had
their houses back of the dam.
“What was the danger?” asked Mr. Beaver of Mr. Cuppy, as the
two animal gentlemen walked along on top of the dam. “Did you see
a bear or some other big animal?”
“No,” answered Mr. Cuppy. “The reason I whacked my tail was
because I saw five or six men over in the woods where the trees are
that we are going to cut down for our dam.”
“Were they hunter men, with guns?” asked Mr. Beaver.
“No, they didn’t seem to be hunters,” answered Mr. Cuppy. “They
were rough-looking men, and not dressed as nicely as most hunters
are. These men had old rusty cans in their hands—cans like those
we sometimes find in our river. I thought they were coming over to
our dam to catch us, but they didn’t. However I gave the danger
signal.”
 “Yes, it’s best to be on the safe side,” returned Mr. Beaver. “Well,
now we are here—my two boys and myself—and we are ready to
help gnaw down trees for you. My wife will be here in a little while.
She has gone to see if she can find some aspen bark for our dinner.”
“My wife has gone to look for some, too,” said Mr. Cuppy. “Well,
now, let’s see! Have Toto and Sniffy ever cut down any trees?”
“No, this will be the first time for them,” said their father.
“Well, take them over to the little grove and show them how to
work,” advised Mr. Cuppy. “We shall need many trees this spring.
How are you, boys? Ready to gnaw with your red teeth?”
“Yes, sir,” answered Toto and Sniffy.
“Come along!” called their father, and into the water they jumped
from the top of the dam, to swim to where the trees grew beside the
river.
Beavers always swim, if they can, to wherever they want to go.
They would much rather swim than walk, as they can swim so much
better and faster. So, in a little while, Toto and Sniffy stood with their
father beside a tree which, near where the tree trunk went into the
ground, was as large around as your head.
“We will cut down this tree,” said Mr. Beaver.
“What! That big tree?” cried Toto. “We can never gnaw that down,
Dad! It will take a year!”
“Nonsense!” laughed Mr. Beaver. “We can gnaw down larger trees
than this. Before you boys are much older you’ll do it yourselves. But
now come on, let’s start. I’ll watch you and tell you when you do
things the wrong way. That’s the way to learn.”
“I guess I know how to gnaw a tree down!” boasted Sniffy. “I’ve
often watched Mr. Cuppy do it.” This little beaver boy stood up on his
hind legs, using his tail as a sort of stool to sit on, and he began
cutting through the bark of the tree, using his four, strong orange-
colored front teeth to gnaw with.
 “Here! Hold on! Wait a minute!” cried Mr. Beaver to his son, while
Toto, who was just going to help his brother, wondered what was
the matter.
“Isn’t this the tree you want gnawed down, Dad?” asked Sniffy.
“Yes, that’s the one,” his father answered. “But if you start to
gnaw on that side first the tree will fall right on top of those others,
instead of falling flat on the ground as we want it to. You must begin
to gnaw on the other side, Sniffy. Then, as soon as you have nearly
cut it through, the tree will fall in this open place.”
“Oh, I didn’t know that,” said Sniffy.
“Nor I,” added his brother.
“Always look to see which way a tree is going to fall,” advised
Daddy Beaver, “and be careful you are not under it when it falls. If
you do as I tell you then you will always be able to tell just which
way a tree will fall to make it easier to get it to the dam.”
Then Mr. Beaver told the boys how to do this—how to start
gnawing on the side of the tree so that it would fall away from them.
Lumbermen know which way to make a tree fall, by cutting or
sawing it in a certain manner, and beavers are almost as smart as
are lumbermen.
How they do it I can’t tell you, but it is true that beavers can make
a tree fall almost in the exact spot they want it. Of course accidents
will happen now and then, and some beavers have been caught
under the trees they were gnawing down. But generally they make
no mistakes.
“How are we going to get the tree to the dam after we gnaw
through the trunk?” asked Toto, as he and Sniffy began cutting
through the outer bark with their strong, red teeth. “We can’t carry
it there.”
“We could if we could bite it into short pieces, as we bite and
gnaw into short pieces the logs we gnaw bark from in our house all
winter,” said Sniffy.
 “We don’t want this tree cut up into little pieces,” said Daddy
Beaver. “It must be in one, long length, to go on top of the dam.”
“We never can drag this tree to the dam after we have gnawed it
down!” sighed Toto. “It will be too hard work!”
“You won’t have to do that,” said his father with a laugh. “We will
make the water float the tree to the dam for us.”
“But there isn’t any water near here,” said Sniffy.
“No, but we can bring the water right here,” went on Mr. Beaver.
“How?” Toto wanted to know, for he and his brother were young
beavers.
“We can dig a canal through the ground, and in that the water will
come right up to where we want it,” said Mr. Beaver. “We’ll dig out
the dirt right from under the tree, after we have cut it down, and
bring the canal to it. The canal will fill with water. The tree, being
wood, will float in the water, and a lot of us beavers, getting
together, can swim along and push and pull the tree through the
canal right to the place where we need it for the dam.”
“Are we going to learn how to dig canals, too?”
“Yes, building dams and canals and cutting down trees are the
three main things for a beaver to know,” said his father. “But learn
one thing at a time. Just now you are to learn how to cut down this
tree. Now gnaw your best—each of you!”
So Toto and Sniffy gnawed, taking turns, and their father helped
them when they were tired. Soon a deep, white ridge was cut in the
side of the tree.
“The tree is almost ready to fall now,” said Mr. Beaver. “You boys
may take a little rest, and I’ll finish the gnawing. But I want you to
watch and see how I do it. Thus you will learn.”
“May I go over there by the spring of water and get some sweet
bark?” asked Toto.
 “Yes, I’ll wait for you,” answered his father. “I won’t finish cutting
the tree down until you come back.”
“Bring me some bark,” begged Sniffy, as he sat down on his
broad, flat tail.
“I will,” promised Toto.
The little beaver boy waddled away, and soon he was near an
aspen tree. Beavers like the bark from this tree better than almost
any other. Toto was gnawing away, stripping off some bark for his
brother, when, all at once, he heard a rustling sound in the bushes,
and a big animal sprang out and stood in front of Toto.
“Oh, dear me! It’s a bear!” cried Toto.
“No, I am not a bear,” answered the other animal. “Don’t be afraid
of me, little muskrat boy. I won’t hurt you.”
“I’m not a muskrat! I’m a beaver!” said Toto. “But who are you?”
“I am Don,” was the answer. “And I am a dog. Once I was a
runaway dog, but I am not a runaway any longer. But what are you
doing here, beaver boy?”
“Helping my father cut down a tree for the dam,” Toto answered.
“What are you doing, Don?”
“I am looking for a camp of tramps,” was the answer, the dog and
beaver speaking animal talk, of course. “A dog friend of mine said
there was a camp of tramps in these woods, and I want to see if I
can find them,” went on Don.
“What are tramps?” asked Toto.
“Ragged men with tin cans that they cook soup in,” answered
Don. “Have you seen any around here?”
“No, but Cuppy, the oldest beaver here, saw some ragged men
over in the woods,” began Toto. “Maybe they are—”
But before he could say any more he heard a loud thumping
sound, and Toto knew what that meant.
“Look out! There’s danger!” cried Toto.
 CHAPTER IV
TOTO AND THE TRAMPS

T oto, the bustling beaver, ran as fast as he could and took shelter
under a big rock that made a place like a little cave on the side
of the hill.
“What’s the matter?” asked Don, the dog. “Are you afraid because
I told you about the tramps?”
“Oh, no,” answered Toto. “But didn’t you hear that thumping
sound just now?”
“Yes, I heard it,” answered Don. “What was it—somebody beating
a carpet?”
“I don’t know what a carpet is,” replied Toto. “We don’t have any
at our house. But, whatever it is, it wasn’t that. The noise you heard
was one of my beaver friends thumping his tail on the ground.”
“Oh, you mean wagging his tail!” barked Don. “Well, I do that
myself when I feel glad. I guess one of your beaver friends must feel
glad.”
“No, it isn’t that,” went on Toto. “Whenever any of the beavers
thumps his tail on the ground it means there’s danger around, and
all of us who hear it run and hide. You’d better come under this rock
with me. Then you’ll be out of danger.”
Once more the thumping sound echoed through the woods.
“Better come under here with me,” advised Toto.
“Well, I guess I will,” barked Don.
 No sooner was he under the big rock with Toto than, all of a
sudden, there was a loud crash, and a great tree fell almost on the
place in the woods where Toto and Don had been standing talking.
“My goodness!” barked Don, speaking as dogs do. “It’s a good
thing we were under this rock, Toto, or else that tree would have
fallen on us! Did you know it was going to fall?”
“Well, no, not exactly. My brother and I have been practicing on
gnawing a tree this morning, but ours isn’t cut down yet. My father
is going to finish cutting it, and show Sniffy and me how it is done.
But he promised not to cut all the way through until I got back. So I
don’t believe it was our tree that fell.”
“Is it all right for us to come out now?” asked Don. Though he
was older than the beaver boy, he felt that perhaps Toto knew more
about the woods—especially when tree-cutting was going on.
Toto sat up on his tail under the big rock and listened with his little
ears. He heard the beavers, which were all about, talking among
themselves, and he and Don heard some of them say:
“It’s all right now. Cuppy and Slump have cut down the big tree
for the dam. It has fallen, and now it is safe for us to come out.”
The dog and the little beaver came out from under the
overhanging rock, and Don noticed the pieces of bark Toto had
stripped off.
“What are you going to do with them?” asked Don. “Make a
basket?”
“A basket? I should say not!” exclaimed Toto. “I’m going to eat
some and take the rest to my father and brother. They are farther
back in the woods, cutting down a tree. Don’t you like bark?”
“Bark? I should say not!” laughed Don in a barking manner. “I like
bones to gnaw, but not bark, though I bark with my mouth. That is
a different kind, though. But I suppose it wouldn’t do for all of us to
eat the same things. There wouldn’t be enough to go around. But
tell me: Do you always hear a thumping sound whenever there is
danger in the woods?”
“Yes, that’s one of the ways we beavers have of talking to one
another,” answered Toto. “Whenever one of us is cutting a tree
down, and he sees that it is about to fall, he thumps on the ground
as hard as he can with his tail. You see our tails are broad and flat,
and they make quite a thump.”
Don turned and looked at Toto’s tail.
“Yes, it’s quite different from mine,” said the dog. “I sometimes
thump my tail on the floor, when my master gives me something
good to eat or pats me on the head. But my tail doesn’t make much
noise.”
“Well, a beaver’s tail does,” explained Toto. “So whenever any of
us hear the thumping sound we know there is danger, and we run
away or hide.”
“I’m glad to know this,” said Don. “When I’m in the woods, from
now on, and hear that thumping sound, I’ll look around for danger,
and I’ll hide if I can’t get out the way. Well, I’m glad to have met
you,” went on Don. “I don’t suppose you have seen Blackie, have
you?”
“Who is Blackie?” asked the beaver boy. “Is he another dog?”
“No, she’s a cat!” explained Don, with a laugh. “She’s quite a
friend of mine. She has a story all to herself in a book, and I have
one, too. I don’t suppose you were ever in a book, were you, Toto?”
“Did you say a brook?” asked the beaver boy. “Of course I’ve been
in a brook many a time. I even built a little dam across a brook once
—I and my brother Sniffy.”
“Ho, I didn’t say brook—I said book,” cried Don. “Of course I don’t
know much about such things myself, not being able to read. But a
book is something with funny marks in it, and boys and girls like
them very much.”
 “Are they good to eat?” asked Toto.
“Oh, no,” answered Don, laughing.
“Then I don’t believe they can be very good!” said Toto, “and I
don’t care to be in a book.”
But you see he is in one, whether he likes it or not, and some day
he may be glad of it.
“Well, I must be going,” barked Don. “I want to see if I can find
that camp where the tramps live. Tramps are no good. They come
around the house where I live, near Blackie, the cat, and take our
master’s things. If I see the tramps I’m going to bark at them and
try to drive them away.”
Then he trotted on through the woods, and Toto, after eating a
little more bark, gathered some up in his paws, and, walking on his
hind legs, brought it to where his father and Sniffy were waiting for
him.
“Here’s Toto,” said Sniffy.
“Where have you been?” asked Mr. Beaver.
“Oh, getting some sweet bark,” answered Toto, and he laid down
on some clean moss the strips he had pulled off. “I met a dog, too.”
“A dog!” cried Mr. Beaver. “My goodness, I hope he isn’t chasing
after you!” and he looked through the trees as if afraid.
“Oh, this was Don, a good dog,” explained Toto. “He’s only looking
for some tramps. He won’t hurt any beavers.”
“Well, if he’s a good dog, all right,” said the beaver daddy. “But
hunters’ dogs are bad—they’ll chase and bite you. I suppose they
don’t know any better.”
“Where were you when Cuppy whacked with his tail just before
the big tree fell?” asked Sniffy, as he nibbled at some of the tender
bark his brother had brought.
 “Oh, Don and I hid under a big rock,” answered Toto. “I told him
the whacking sound meant danger. He didn’t know it. And it’s a good
thing we hid when we did, for the tree would have crushed us if we
hadn’t been under the rock. Is our tree ready to finish gnawing
down, Daddy?”
“Yes,” answered Mr. Beaver. “You and Sniffy may start now, and
cut a little more. I’ll tell you when to stop.”
“But I thought you were going to finish, Dad,” said Sniffy.
“He will, Sniffy, if he said so. But he’s letting us help a little more
first so we can learn faster!”
 Crash! Bang! went the big tree.

So the beaver boys sat up on their tails again, and gnawed at the
big tree—the largest one they had ever helped to cut down. They
gnawed and gnawed and gnawed with their orange-colored front
teeth, and then Mr. Beaver said:
“That’s enough, boys. I’ll do the rest. But you may whack on the
ground with your tails to warn the others out of the way.”
So Toto and Sniffy, much delighted to do this, found a smooth
place near a big rock, and then they went:
“Whack! Whack! Whack!”
“Danger! Danger!” cried a lot of other beavers who were working
near by. “A tree is going to fall! Run, everybody! Danger!”
“See!” exclaimed Toto to his brother. “We can make the old
beavers run out of the way just as Cuppy made Don and me run.”
“Yes, you beaver boys are growing up,” said Mr. Beaver, who had
waited to see that his two sons gave the danger signal properly.
“You are learning very well. Now here goes the tree.”
He gave a few more bites, or gnaws, at the place where the tree
was almost cut through, and then Mr. Beaver himself ran out of the
way.
“Crash! Bang!” went the big tree down in the forest. It broke down
several other smaller trees, and finally was stretched out on the
ground near the waters of Winding River.
“We helped do that!” said Toto to Sniffy, when the woods were
again silent.
“Yes, you have learned how to cut down big trees,” said their
father. “You are no longer playing beavers—you are working beavers.
Now we must dig the canal to float the tree nearer the dam, as it is
too heavy for us to roll or pull along, and we do not want to cut it.”
 I will tell you, a little farther on, how the beavers cut canals to
float logs to the places where they want to use them. Just now all I’ll
say about them is that it took some time to get the tree Toto and
Sniffy had helped cut to the place where it was needed for the dam.
The two beaver boys and many others of the wonderful animals
were busy for a week or more.
Then, one day, when the tree was in place, Toto asked his mother
if he might go off into the woods and look for some more aspen
bark, as all that had been stored in the stick house had been eaten.
“Yes, you may go,” said Mrs. Beaver. “But don’t go too far, nor stay
too long.”
“I won’t,” promised Toto. Then he waddled off through the woods,
after having swum across the beaver pond, made by damming the
river, and soon he found himself under the green trees.
“I wonder if I’ll meet Don, the nice dog, or Whitie, the cat?”
thought Toto. “Let me see, was Whitie her name? No, it was Blackie.
I wonder if I’ll meet her, or that little girl who scared me so that day
on the ice?”
Toto looked off through the trees, but he saw neither Don nor
Blackie.
Toto found a place where some aspen bark grew on trees, and he
gnawed off and ate as much as he wanted. Then he walked on a
little farther and, pretty soon, he saw something in the woods that
looked like a big beaver house. It was a heap of branches and limbs
of trees, and over the outside were big sheets and strips of rough
bark.
“But that can’t be a beaver house,” thought Toto. “It isn’t near
water, and no beavers would build a house unless it had water near
it. I wonder what it is.”
Toto sat up on his tail and looked at the queer object. Then all at
once he heard rough voices speaking, and he saw some ragged men
come out of the pile of bark. One or two of them had tin cans in
their hands, and another was holding a pan over a fire that blazed
on a flat rock.
“Oh, I know who they are!” said Toto to himself. “These must be
the tramps Don was looking for. This is the tramp camp! I’ve found
the bad men. I wish I could find Don to tell him!”
 CHAPTER V
TOTO SEES SOMETHING QUEER

C rouching down behind a green bush, Toto, the bustling beaver,

kept very quiet and watched the tramps. He was not at all
bustling now, however. He was not doing any work. Instead he was
watching to see if the tramps were going to do any work.
But you know better what tramps are than did Toto. Tramps, as a
rule, are men who don’t like to work. They are lazy, and wander
about like gypsies, living as best they can, putting up an old shack or
a bark cabin in the woods, as these tramps had done, boiling soup
or stewing something in a tomato can over a fire in the woods.
Those are tramps.
“I wish I could find Don to tell him,” thought Toto. “These must be
the very tramps for whom he was looking.”
But though the beaver boy peered around among the trees he
could not see Don. The dog was not in that part of the woods just
then.
The tramps, however, were in plain sight. Some were stretched
out on the soft moss beneath the trees. Others sat in the doorway of
the rough, bark house they had built, and still others were cooking
something over a fire.
“What a lot of hard work they have to do to get something to eat,”
thought Toto. “They have to make a fire, and fires are dangerous. I
don’t like them!”
Well might Toto say that, for he had heard his father and Cuppy
tell of fires in the forest that, in dry seasons, burned beaver dams
and beaver houses.
 “We never have to make a fire when we are hungry,” thought
Toto. “And we don’t have to hunt for tin cans, to put in them our
things to eat. When I’m hungry all I have to do is to gnaw a little
bark from a tree, or eat some grass or some lily roots from the
pond. I wouldn’t like to be a tramp. That would be dreadful. I’d
rather be a beaver.”
So Toto watched the tramps. He saw them make the fire bigger,
and noticed many of the ragged men holding over it tin cans which,
later, they ate from.
Then, as the day was warm and sunny, all the tramps stretched
out under the trees and went to sleep.
“Now would be a good time for Don to come along and scare
them away,” thought Toto. “I wish he would. It isn’t good to have a
camp of tramps so near our beaver dam. They may come and try to
catch some of us.”
But Don, the dog, did not come, and after watching the ragged
men for a while Toto thought he had better start back home. He
stripped off some bark to take to his mother, who liked it very much,
and then the bustling beaver waddled along until he came to a
stream of water. Into this he jumped and swam the rest of the way,
as that was easier than walking, or “waddling” as I call it, for Toto
was rather fat, and he sort of “wobbled” as he walked.
“Well, did anything happen to you this time?” asked Mrs. Beaver,
when Toto reached home.
“It didn’t exactly happen to me,” he said. “But I saw the camp of
tramps Don was looking for.”
“Tramps! In our woods!” exclaimed Mr. Beaver, who came along
just then. He was coming home to supper, having been at work with
Cuppy and the others on the big dam. “Where did you see the
tramps, Toto?”
The little beaver boy told his father, and that evening after they
had eaten all the beavers gathered out on the big dam which held
back the waters of the pond. It was a sort of meeting, and though it
took place nearly every night, it was not always as serious as was
this one.
On other nights the beavers gathered to talk to one another, the
older ones looking to see that the dam was all right, and the
younger ones, like Toto and Sniffy, playing about.
But this evening there was very little playing. After a few holes in
the dam had been plastered shut with mud, which the beavers
carried in their forepaws, and not on their tails, as many persons
think, Cuppy whacked his tail on the ground. Every beaver grew
silent on hearing that.
“There is no special danger just now,” said Cuppy, speaking to all
the others. “I mean no tree is going to fall, or anything like that. But
there is likely to be trouble. Toto, tell us about the tramp camp you
saw in the woods.”
You may easily believe that Toto was quite surprised at being
called on to sit up and speak before all the other beavers in the
colony. But he was a smart little chap, and he knew that each one
must help the others. So he told what he had seen.
“And now,” said Cuppy, “what is to be done? We do not want
these tramps around here. Some of them may be hunters, and may
try to catch us. Others may tear out our dam, and that would be
very bad for us, as the water would all run out of our pond and our
houses would be of no use. Now we must either drive these tramps
away, or else make our dam so big and strong that they will not
want to try to tear it apart.”
“How can we drive the tramps away?” asked Toto’s father.
“I don’t believe we can,” answered Cuppy. “If we were bears or
wolves we might, but, being beavers, we can’t very well do it. The
next best thing to do is to make our dam stronger. So to-morrow
morning we must all—young and old who can gnaw trees—we must
all cut down as many as we can and build the dam bigger. In that
way we may be safe from the tramps. Now remember—everybody
come out to cut down trees in the morning.”
“We can cut trees now, can’t we, Dad?” asked Toto of his father.
“Yes, you and Sniffy must do your share,” replied Mr. Beaver. “We
must all help one another.”
The woods around the dam were a busy place next morning. All
the beavers who were able began cutting down trees. Later the
trees would be floated in canals to the big pond and made a part of
the wall that held back the waters.
“Sniffy, do you want to come with me?” asked Toto of his brother,
when the two boys had, together, cut down a pretty good-sized tree.
“Where are you going?” asked Sniffy.
“Farther off into the woods,” answered Toto. “I know where there
is a nice, smooth, straight tree that we can cut down. It stands all by
itself, and when it falls it won’t lodge in among other trees, so it will
be easy to get out for the dam. Come, and we’ll cut it down
together.”
“All right, I will,” said Sniffy.
Now Toto did not tell his brother that the tree he intended
gnawing down was close to the camp of the tramps. Toto thought if
he told his brother that, Sniffy might be afraid to go.
“But we can keep hidden from the tramps,” thought Toto, “and our
teeth do not make much noise when we gnaw. The tramps will not
hear us. Besides, I want to see if they are still there. Maybe Don has
barked at them and driven them away.”
But when Toto and Sniffy reached the place in the woods where
the tall tree grew, there was the bark shack in the same place, and
some of the ragged men were still in and about it.
“Oh, look!” exclaimed Sniffy, catching sight of the tramps. “Who
are the ragged men, Toto? Are they hunters?”
 “No,” answered Toto. And then he told his brother who the men
were. “But don’t be afraid,” went on Toto. “We’ll gnaw very silently,
and the tramps won’t know we are here. These are the ragged men
I told about at the meeting. But don’t be afraid, Sniffy.”
“All right. I won’t be afraid if you’ll stay with me,” said Sniffy. “Now
which tree are we going to cut, Toto?”
The other beaver showed his brother the tree he meant, and
Sniffy said it was a fine one.
“If we cut that down all by ourselves, it will help make the dam
much bigger,” he said. “But we can’t cut it in one day, Toto.”
“No, nor in two days,” answered the other. “It may take us a
week. But we can do it.”
After that, each day, Toto and Sniffy slipped off by themselves and
went to the place near the camp of the tramps. There the two
beaver boys gnawed and gnawed and gnawed away at the tree they
were cutting down. And they worked so quietly that none of the
tramps heard them.
One day the big tall tree was almost cut through.
“We shall finish gnawing it down in about an hour,” said Sniffy.
“Yes,” agreed Toto, “it will soon fall.”
“And shall we whack on the ground with our tails to signal for
danger?” Sniffy wanted to know.
“We had better; yes,” agreed Toto. “We can’t tell but what some of
the other beavers may be around here, though I haven’t seen any.”
So the two boy animals gnawed and gnawed some more, and
soon the tree began to topple slowly to one side.
“There it goes!” cried Sniffy.
“Yes, it’s going to fall,” agreed Toto. “Whack with your tail as hard
as you can! Whack your tail!”
 Toto and Sniffy banged their flat tails on the ground. It was the
beavers’ signal for danger. Then Toto and Sniffy ran and hid in a
hollow place under a big stump. But they could look out and see the
tree leaning over farther and farther as it toppled to the earth.
Suddenly Toto cried:
“Look! The tree is going to fall right on the place where the
tramps live! It is going to fall on their house and it will be smashed!”
And so it was. The beaver boys had forgotten about the shack of
the tramps when they gnawed at the tree. Now it was toppling over
directly on the bark cabin. Toto and his brother were going to see
something very queer happen.
“Bang with your tail! Bang with your tail, and give the danger
signal to the tramps!” cried Toto.
And he and Sniffy whacked away as hard as they could.
 CHAPTER VI
TOTO AND THE BURGLARS

N ow, the tramps who had built the shack of bark in the woods
knew nothing about beavers and their ways. The tramps did not
know that when a beaver whacks his tail on the ground it means
danger from a falling tree, or from something else.
But the tramps in the shack, toward which was falling the tree
Toto and Sniffy had gnawed down—these tramps heard the queer
whacking sounds, and they knew they had never heard them before.
So some of them, who were not as lazy as the others, ran out to see
what it meant.
One tramp looked up and saw the tall tree swaying down toward
the bark shelter. The tramp did not know that two little beaver boys
had, all alone, gnawed down the big tree. But the tramp could see it
falling.
“Come on! Get out! Everybody out of the shack!” cried the tramp
who saw the falling tree. “Everybody out! The whole woods are
falling down on us!”
Of course that wasn’t exactly so. It was only one tree that was
falling, and the same one which Toto and Sniffy had gnawed down.
But the tramp who called out was so excited he hardly knew what
he was saying.
And as soon as the other tramps, some of whom were sleeping in
the bark shack, heard the calls, they came running out, some
rubbing their eyes, for they were hardly awake. They had been
asleep in the daytime, too—the daytime when all the beavers were
busy.
 “Come on! Come on! Get out! Everybody out!” yelled the tramp
who had first caught sight of the falling tree.
As soon as the others knew what the danger was, out they rushed
also, and then they all stood outside the shack and to one side and
watched the tree crash down.
Right on top of the bark cabin crashed the tree. There was a
splintering of wood, a breaking of branches, a big noise, and then it
was all over.
For a few minutes the tramps said nothing. They all stood looking
at the fallen tree that had crushed their home in the woods.
“Well!” exclaimed several of the men.
“It’s a good thing we got out in time,” growled one tramp.
“I should say so!” exclaimed another. “Lucky you saw it coming,”
he added to the tramp who had called the warning.
“Did some one chop the tree down?” asked a third tramp.
“No, I guess the wind blew it,” said a fourth.
“There isn’t enough wind to blow a tree down,” decided the first
tramp, who had red hair.
Of course we know it wasn’t the wind that blew the tree down. It
was Toto and Sniffy who gnawed it and made it fall. But the tramps
were too lazy to go and see what had caused the tree to topple over.
They just stood there and looked at their crushed house.
“It will be a lot of work to build that up again,” said one tramp.
“She’s smashed flat.”
“Build it up again! I’m not going to help build it up!” said another.
“It’s too hard. I’m tired of this place, anyhow. Let’s move off to
another woods. Maybe we can find a place near a chicken yard, and
we can have all the chickens we want. Let’s move away, now that
our house is smashed.”
“Yes, let’s do that!” cried some of the other tramps.
 And those ragged men were so lazy that they did not want to go
to the trouble of building a home for themselves! Perhaps they
thought they could go off into the woods and find another already
built. Anyhow, they stood around a little while longer. One or two of
them picked up ragged coats and hats that were in the ruins of the
hut, and some took old cans in which they heated soup. That was all
they had to move.
“Well, come on! Let’s hike along!” said the red-haired tramp.
With hardly a look back at what had been a home for some of
them for a long time, the tramps walked away through the woods.
Toto and Sniffy, hiding in the bushes, watched the ragged men go.
“Look what we did!” said Sniffy to his brother.
“Yes, we cut down a tree, but we didn’t mean to make it fall on
the house where the tramps lived,” said Toto.
“Anyhow, they’re going away, and that’s a good thing for us,” went
on Sniffy. “Now we won’t have to make the dam so strong, nor move
away ourselves.”
“That’s so,” agreed Toto. “I didn’t think about that. Why, Sniffy, we
really drove the tramps away, didn’t we?”
“Yes,” answered his brother, “we did.”
“Don, the dog, will be glad to know this,” went on Toto. “I guess
he’ll wish he had helped drive the tramps away himself. Come on!
let’s go back and tell Dad and Mr. Cuppy about cutting down the tree
and smashing the tramps’ cabin.”
Mr. Beaver, Cuppy, and all the others in the colony were much
surprised when Toto and Sniffy told what had happened. Almost all
the grown animals, and certainly every one of the boys and girls,
went out to see the fallen tree and the smashed cabin.
“Well, you did a lot to help us,” said Cuppy to the two brothers;
“but we can’t use that tree in the dam.”
“Why not?” asked Toto.
 “Because it fell the wrong way. It would be too much work to dig a
canal to it and float it to the dam. It will be easier to cut down
another tree. But I don’t know that we shall need any more as long
as the tramps have moved away. We need not make our dam any
bigger now.”
“Are all the tramps gone?” asked Toto’s mother.
“Yes, every one,” answered Cuppy. He was a wise old beaver, and
he knew none of the ragged men were left near what had once been
their shack of bark.
So that was another adventure Toto had—driving away the
tramps. And if I had told you, at first, that two little beavers, not
much bigger than small puppy dogs, could make a number of big,
lazy men move, you would hardly have believed me. But it only goes
to show in what a strange way things happen in the woods.
 Everybody in the beaver colony had work to do.

Now that it was not needful to make the dam bigger, the beavers
turned to other work. Some of the canals they had dug had become
filled up at a time when there was too much rain and the banks had
caved in. Some of the beavers began to clear out these canals.
Others mended holes in the dam, and still others cut down, and
brought to the pond, tender branches of trees on which grew soft
bark for the small beaver children to eat.
Everybody in the beaver colony had work to do. There was not a
lazy one among them, and Toto and Sniffy worked as hard as any.
They had time to play, too, and I’ll tell you about that in another
chapter or two. Just now I want to speak about another wonderful
adventure that happened to Toto.
The little beaver boy was growing larger now. He was quite strong
for his size, and he was growing wiser every day. Often he went off
in the woods alone to hunt for tender bark, or perhaps for some
berries he liked to eat.
One day Toto was walking along near a canal he had helped to
dig. He was thinking of Don, and wishing he might meet the nice
dog again, and tell him about the tramps being driven away. And
Toto was also thinking of the little girl with the red mittens, whose
skate had come off on the ice.
Then, as Toto stepped from the woods into a little clearing, or
place where no trees grew, he saw something big—bigger than a
thousand beaver houses made into one.
“I wonder what that is?” thought Toto. “It looks something like the
shack the tramps had in the woods, but it is much nicer. I wonder if
it is a house?”
And then as Toto, hidden behind a bush, watched, he saw a little
girl and an old lady come out of the house (for such it was) and walk
away through the woods on a path.
Welcome to Our Bookstore - The Ultimate Destination for Book Lovers
Are you passionate about books and eager to explore new worlds of
knowledge? At our website, we offer a vast collection of books that
cater to every interest and age group. From classic literature to
specialized publications, self-help books, and children’s stories, we
have it all! Each book is a gateway to new adventures, helping you
expand your knowledge and nourish your soul
Experience Convenient and Enjoyable Book Shopping Our website is more
than just an online bookstore—it’s a bridge connecting readers to the
timeless values of culture and wisdom. With a sleek and user-friendly
interface and a smart search system, you can find your favorite books
quickly and easily. Enjoy special promotions, fast home delivery, and
a seamless shopping experience that saves you time and enhances your
love for reading.
Let us accompany you on the journey of exploring knowledge and
personal growth!

ebookgate.com