which countries law applies

Discussion in 'Legal Issues' started by NorthSouth, Jun 18, 2010.

  1. #1
    hi

    which countries laws are most applicable and relevant to us (for copyright/libel/defamation or other law likely to impact us), and from which country should we get a lawyer to draw up ToS etc?

    • We, the organisation/website creators/publisher are in Country A
    • Our web server hosting company are in Country B
    • Our web servers servers reside in Country C
    • Our site members submitting content on the site are from Countries A-G
    • Copyright owner (or entity that may wish to raise legal issue) resides in Country A-G

    Thanks
     
    NorthSouth, Jun 18, 2010 IP
  2. Rocky0007

    Rocky0007 Peon

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    #2
    Well there are many countries which are really strict towords these law like U.K, Germany etc.
     
    Rocky0007, Jun 20, 2010 IP
  3. RonBrown

    RonBrown Well-Known Member

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    #3
    There won't be a hard-and-fast answer.

    Country A definitely applies because that's the Laws that are local to you and you must comply with the laws of the country that you operate in.

    Country B is a strong contender because your hosting company will need to operate within the laws of their country and their Terms may impose these laws upon you.

    Country C is probably relevant because you won't be able to break the law within their jurisdiction, but the biggest concern here is breaking specific laws regarding online content (if any) rather than making your customers comply with the general laws of that country - if you understand what I mean.

    Countries D-G are less of a worry, but might still play a part. For instance, in the European Union a consumer can take action against a company (if that company also operates within the EU) in their home country and the company would need to defend that action in the consumers country irrespective of what country in the EU the company operated in. The action would be taken on a stance of local law of the consumer rather than the law of the country the company came from. As usual with the EU, there are all types of get-outs and other parts that aren't fully ratifed in some countries, so it's a bit of a mess.

    I can give a perfect example of the UK. We're based in Scotland so Scottish Law (which is distinct from English Law that applies in England and Wales, although there are other regulations that apply nationally) applies to our operations. The OFT (Office of Fair Trading) allows us to specify that Scottish Law applies to our contract and if a company wants to take court action we specify that it must take place in a Scottish court near our offices. However, if a consumer want to sue us we can't confine their action to Scottish Courts only and must specify that they have to take action in a UK court - which could be anywhere in the UK. IF we don't, our contract could be considered unfair under various acts.

    The only person who can give a definitive answer is your lawyer and you will need to take their advice. If you can only choose one, then it has to be the country you operate in because that's where any legal action against you will probably take place.
     
    RonBrown, Jun 20, 2010 IP
  4. NorthSouth

    NorthSouth Peon

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    #4
    It's a fairly complex one isn't it, thanks for your help. So I'm keen to a) do as much of this as possible with minimum legal costs, & b) know which country or countries we need lawyers or our TOS and paperwork written.
    Thank you for your comments
     
    NorthSouth, Jun 20, 2010 IP
  5. Business Attorney

    Business Attorney Active Member

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    #5
    Your question involves a complex area known as international conflicts of laws. In fact, it is not really just one question, but three:
    (1) Which country or countries will have jurisdiction, or the power to resolve the dispute between two parties.
    (2) Which country's substantive law will apply to the dispute
    (3) Will a court in another jurisdiction recognize and enforce the decision of the original forum

    The courts of country A, for example, may have jurisdiction over you but not the party you are contracting with. You might have to bring an action in country D to get power over the user residing in that country. Still, the court in country D may decide to apply the substantive law of country A if the parties have clearly agreed that is the law to govern the transaction.

    There is no universal answer to your question. Based on identical facts, some countries will assume jurisdiction while others would decline jurisdiction. Some will honor a choice of law provision while others may reject it for various reasons.

    In most cases the best you can do is to provide for the choice of jurisdiction and governing law and trust that most courts will honor that choice.

    As for your TOS complying with local laws and regulations, if you are doing a substantial business in an area, you should assume that you must comply with the laws applicable to the user.

    For example, suppose you had a gaming site based in country A (where gambling was legal) but had customers in country F (where gambling was illegal). It is almost a certainty that the government of F could take action against you. At that point your only hope would be the one listed as #3 above, that your home court would refuse to enforce a judgment against you for an activity that would have been legal in country A. Then you would have to make sure that you never have assets in nor travel to any country that would honor the judgment against you.

    Fortunately, on many legal subjects, commercial law has become more uniform in recent years. For example, US copyright law is much more like that of the rest of the world than it was when I took a copyright class in law school in 1975.
     
    Business Attorney, Jun 20, 2010 IP