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26 June 2000

Make sure e-nough is e-nough
E-commerce, e-tailing, e-law... What next?

Greg Fahey, Solicitor, Dunedin

Whether you love it or hate it, or just don't understand it, e-commerce is unavoidable for today's modern businesses. When choosing a domain name, operating a website, or contracting on-line 
with other businesses, there are a number of legal matters of which you should be aware.

Going on-line?
For many businesses the first step into e-commerce is to set up a website. When establishing or operating a website, have regard to the following:

* You will want a catchy domain name relevant to your business. Register your domain name as
soon as possible to reduce the risk of having to compete with other parties for it. If the domain
name is to be your business' registered name and it is already taken, someone without a legitimate
claim to it (a "cybersquatter") could be forced to de-register the name by court action. Where
another party has a legitimate claim to a domain name, then commercial solutions such as a
licensing arrangement or an assignment could be investigated.

This doesn't just happen overseas to people like Bill Gates and corporations like McDonalds. In
December last year, Qantas New Zealand obtained a High Court order for a cybersquatter to deregister
"Qantas" as a domain name as the squatter was found to be in breach of the fair Trading Act by
misleading the public.

* Copyright law applies to the internet. Ensure you either own or are licensed to use all copyrighted
material on your site. Check to ensure the licence allows for publication of the material on the
internet. Similar issues apply when using trademarks.

* Consumer protection legislation is as applicable to your website as to the rest of your business. As
much care should be taken with trade representations on your website as with any other promotion.
Privacy Act obligations should also be addressed.

* Should you intend your site to be accessed overseas, the laws of other jurisdictions may well
impact on your site.

Electronic Transactions Act
Early next year, Parliament is expected to enact the Electronic Transactions Act, to address some of the legal gaps in e-commerce. Generally, the Act will:

* Minimise barriers hindering the growth of e-commerce. The Act would permit many regulatory requirements, such as "writing", "signing" or "posting", to be satisfied in electronic transactions provided certain conditions are met.

* Reduce the present uncertainty of doing business on-line. When and how "offer" and "acceptance"
take place and who the parties are to a transaction are essential details of a contract, but not always
clear in internet transactions. This uncertainty could invalidate a contract. The Act is expected to
clarify issues such as this.

The Act will be a basic statute as many e-commerce issues still need to be resolved at an international level before being formulated in New Zealand law. We will keep you posted as the Bill progresses.

Pregnancy Discrimination Case
Lesley Brook, Associate, Dunedin

The Parental Leave and Employment Protection Act 1987 provides employees rights to unpaid parental leave for up to 12 months.

Employees are not entitled to all the benefits under the Act if they:

  • Work less than 10 hours per week;
  • Worked for less than a year for their current employer; and
  • Worked for less than a year since last taking
    parental leave.

Do these employees have any rights for parental leave? Yes, under the Human Rights Act.

The Human Rights Act prohibits discrimination on the grounds of gender, which includes pregnancy. It is unlawful to dismiss an employee "by reason of" the employee's gender. Recently a woman made a complaint to the Human Rights Commission that she had been dismissed in breach of the Human Rights Act. She was pregnant when she was employed and told her employer. She was told 
that it would not be an issue. However when she came to take leave, her employer said she was not 
entitled to parental leave so she would have to cease employment, although she could reapply for her job when she wanted to come back. Her complaint was upheld even though she had no entitlement to 
parental leave under the Parental Leave Act. The Commission applied a simple test; the woman would not have been dismissed "but for" her pregnancy.

The facts of this case are unusual - the employer initially told the woman her pregnancy would not be an issue, so she was led to believe she would be given leave. However, the way the Commission applied the Act could have far-reaching effects. Even if a dismissal may be justified under the Employment Contracts Act, employers may be in breach of the Human Rights Act.

We disagree with this result. It effectively creates rights to parental leave far beyond what Parliament decided to include in the Parental Leave Act. She was dismissed not because she was pregnant but because of her intended absence from work. The reason for her absence is not actually relevant. For example, a person may want to leave work temporarily to travel or to care for a relative.

What should employers do?

  • Keep any promises you've made to employees.
  • Try and reach agreement with an employee who wants to take parental leave, about when they will return.

Team Changes

Hamish Peart joins our employment law team We are pleased to welcome Hamish Peart as a new solicitor to Caudwells litigation divsion in the Dunedin office, led by Senior Litigation Partner Frazer Barton. Hamish works in the employment team with Jenny Beck (Partner), Lesley Brook (Associate) and Malcolm Couling (Solicitor). The team is very busy advising businesses on a wide range of employment matters including the implication of the Employment Relations Bill.

Caudwells will be farewelling Peter Churchman in mid-July when he moves to another position in Wellington.

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