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cyberlaw:crime [2019/09/25 16:45]
nic
cyberlaw:crime [2019/10/30 16:27]
nic
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 ## Queensland Legislation ## Queensland Legislation
  
-**Future Student ​Video: ​Explain Cyberstalking and the Queensland ​Stalking Offence**+**Video: ​Sarah Lawrence explains [how Section 359B of Queensland's Criminal Code regulates cyberstalking](https://​www.youtube.com/​watch?​v=SeEPjsLyGso)** 
 + 
 +Incidents of cyberstalking are recognised under the definition of unlawful stalking in Section 359b of Queensland’s Criminal Code. Through the inclusion of subsection (c)(ii) unlawful stalking extends to contact through the use of telephone, mail, fax, email or through any technology.  
 + 
 +Cyberstalking includes email stalking, phone stalking and computer stalking. Both email and phone are expressly stated in section 359B of the Criminal Code as methods of contact for unlawful stalking. Computer stalking, while not expressly stated in the provision, would likely be covered by the phrase ‘any technology’ and therefore would still be caught by the stalking offence. 
 + 
 +A major controversy surrounding the stalking offence is the that the victim must have suffered a real apprehension or fear of violence, however, cyberstalking is unlikely to meet this threshold due to its virtual and non-physical nature. In addition, the prosecution of cyberstalking is difficult and victims must turn to other avenues to find relief. The current and most realistic remedies for victims would be to approach social media services to have material removed, or to report the behaviour to the eSafety commissioner.
  
 ## Private Law: Electronic Contracts ## Private Law: Electronic Contracts
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 Access to computer systems is typically constrained by both code and contract law. The code that makes computer systems interactive will often have some system for controlling access to the system. For example, websites are often made accessible to the public, but webservers can be configured to ensure that different parts of the website are only accessible to logged-in users with the correct permissions. Similarly, login controls prevent people from gaining access to computer systems without the correct password or credentials. Accessing computer systems by breaking these authentication mechanisms will usually be an offence under the unauthorised access or computer trespass provisions in the criminal law. Access to computer systems is typically constrained by both code and contract law. The code that makes computer systems interactive will often have some system for controlling access to the system. For example, websites are often made accessible to the public, but webservers can be configured to ensure that different parts of the website are only accessible to logged-in users with the correct permissions. Similarly, login controls prevent people from gaining access to computer systems without the correct password or credentials. Accessing computer systems by breaking these authentication mechanisms will usually be an offence under the unauthorised access or computer trespass provisions in the criminal law.
  
-**Future student video topicbrowsewrap, clickwrap, shrinkwrap**+ 
 +### Shrink-wrap,​ click-wrap, and browse-wrap agreements 
 + 
 +**Video[What'​s the difference between a click-wrap and a browse-wrap agreement?​](https://​www.youtube.com/​watch?​v=pdk3e5Fnp2I&​feature=youtu.be) by Erin Laird**
  
 The link between access control systems and private law is typically made through a contract. Many websites now have contractual terms of use that purport to limit access to the website upon acceptance of those terms. When this is done in the registration process, where a user must affirmatively agree to contractual terms (typically by checking a box or clicking a button), this is called a '​clickwrap'​ contract. When contractual terms are instead incorporated by reference (for example, a link at the bottom of the page entitled 'terms of use'), this is called a '​browsewrap'​ contract. ​ The link between access control systems and private law is typically made through a contract. Many websites now have contractual terms of use that purport to limit access to the website upon acceptance of those terms. When this is done in the registration process, where a user must affirmatively agree to contractual terms (typically by checking a box or clicking a button), this is called a '​clickwrap'​ contract. When contractual terms are instead incorporated by reference (for example, a link at the bottom of the page entitled 'terms of use'), this is called a '​browsewrap'​ contract. ​
  
-Terms of Use documents typically deal with a series of different legal issuesThey might include limitations ​of liability clauses, standards ​of acceptable conductcopyright and other intellectual property policies, dispute resolution mechanisms, and many other terms. These can be very useful for online service providers. Because users must agree to the terms to use the website, these terms become enforceable through ​contract ​law and, in some cases, also through ​the criminal prohibitions on unauthorised access. In practice, the contractual component is the most important: through electronic contractsonline service providers are able to structure their rights and exposure to potential liability in a standardised,​ low cost manner.+'​Shrink-wrap'​ licence agreements are agreements found inside software packaged for saleThis raised the question ​of how software licence agreement ​of the provider was binding on the consumerwhen the consumer entered into the sale contract ​with the retail shop. In ProCD Inc v Zeidenberg 86 F 3d 1447 (1996), the Court held that consumers will be bound to the licence agreement if they open the packaging and subsequently install the softwareas they reliquished an opportunity ​to reject it by returning the software
  
 +A '​click-wrap'​ agreement is an online agreement where the user actively gives consent to the terms and conditions. The user will do this by either clicking on a button or checking a box next to a statement saying “I agree to the terms and conditions”. A browse-wrap agreement is an online agreement where the user is assumed to have given passive consent by merely being on the website because being on the website is stated to amount to entering into an agreement with the provider.
  
-**Matthias Klepper [Explains ​the Authority In US Drew that Breach of Terms of Service Does Not Constitute '​Unauthorised'​ Access](https://www.youtube.com/watch?v=negamd8UFq8)**+Click-wrap and browse-wrap agreements differ from how the terms are incorporated to the agreement by reference. To be enforceable,​ it must be done by signature or reasonable notice.((Toll (FGCT) Pty Ltd Alphapharm Pty Ltd (2004) 219 CLR 165 approving L’Estrange v F Graucob Ltd [1934] 2 KB 394.)) Click-wrap agreements do this by signatureBrowse-wrap agreements attempt this through reasonable notice, but this is sometimes harder to enforce.((Hotmail Corporation ​Van Money Pie Inc (1998) 47 USPQ 102.))
  
-Terms of Use documents are often criticised for the problems they pose for consumersClickwrap contracts are generally enforceableregardless ​of whether the consumer has actually read the terms or notMany firms abuse this system by including quite harsh terms in the fine print of the contract in order to minimise their potential risk. In response to this general concernAustralia has recently introduced unfair terms legislation that will limit the enforceability of standard form contracts ​that are deemed ​to be unfair.+Terms of Use documents are either click-wrap or browse-wrap agreements that typically deal with a series of different legal issuesThey might include limitations of liability clausesstandards ​of acceptable conduct, copyright and other intellectual property policies, dispute resolution mechanisms, and many other terms. ​These can be very useful for online service providers. Because users must agree to the terms to use the website, these terms become enforceable through ​contract ​law and, in some cases, also through the criminal prohibitions on unauthorised access. In practice, the contractual component is the most important: through electronic ​contracts, online service providers ​are able to structure their rights and exposure to potential liability in a standardised,​ low cost manner. 
 + 
 +**Matthias Klepper [Explains the Authority In US v Drew that Breach of Terms of Service Does Not Constitute '​Unauthorised'​ Access](https://​www.youtube.com/​watch?​v=negamd8UFq8)**
  
 +Terms of Use documents are often criticised for the problems they pose for consumers. Click-wrap contracts are generally enforceable,​ regardless of whether the consumer has actually read the terms or not. Many firms abuse this system by including quite harsh terms in the fine print of the contract in order to minimise their potential risk. In response to this general concern, Australia has recently introduced unfair terms legislation that will limit the enforceability of standard form contracts that are deemed to be unfair.
  
 **Video Overview of the [Contract Dispute in eBay v Creative Festival Entertainment](https://​www.youtube.com/​watch?​v=hT4bMCR-a10)** **Video Overview of the [Contract Dispute in eBay v Creative Festival Entertainment](https://​www.youtube.com/​watch?​v=hT4bMCR-a10)**
  • cyberlaw/crime.txt
  • Last modified: 3 months ago
  • by nic