Last updated: September 2018

Introduction

Electronic commerce in Australia is principally regulated by federal, state and territory Electronic Transaction Acts. The federal Act applies only to transactions to which a federal law applies. The state and territory Acts are similar to the federal Act and apply in their respective jurisdictions.

The laws applicable to online contracts are the same as those applicable to non-virtual transactions.

This chapter discusses the rules and regulations to help organisations facilitate electronic commerce in Australia. Details on how personal information is handled in Australia and the legislation relating to data privacy and protection is covered in the Data Protection section of this guide.

Electronic Transactions Acts

The main impacts of the Electronic Transactions Acts are:

  • transactions are not invalid simply because they rely on electronic communications or electronic signatures
  • the establishment of guidelines for determining the time and place of despatch and receipt of an electronic communication
  • allowing for the electronic recording of information and retention of electronic documents where legislation requires information to be recorded or retained in writing
  • provision for the use of electronic forms of authentication instead of a handwritten signature subject to certain restrictions
  • clarification of the traditional rules of contract formation to address the needs of electronic commerce, including the recognition of automated message systems, clarification of an invitation to treat and rules to determine the location of the parties.

The rules in the Electronic Transactions Acts are intended to facilitate electronic commerce, but do not apply to all legislation or transactions.  Each Electronic Transactions Act lists legislation or types of transactions which are exempt from the rules set down in that Act or the Regulations under each Act.  

If legislation or types of transactions are "exempted" from the Acts, means of facilitating electronic commerce must be found in other legal rules. These may include the exempted legislation itself or the general law applying to an exempted transaction.  

The Regulations to the Federal Act were amended in 2013 to repeal several exemptions so that the facilitative provisions in the Federal Act would apply to more legislation and transactions. This was seen as necessary in light of current and emerging digital channels and consumer preferences. 

Contract law

There is no fundamental principle of contract law that prevents contracts being formed electronically.  The laws applicable to online contracts are the same as those applicable to non-virtual transactions.

One issue that arises for online contracts is the validity of “click-through” agreements, being agreements where the customer clicks on an on-screen icon to accept the standard terms and conditions.  There is little case law specifically in relation to click-through agreements, but there is no reason in principle why contracts cannot be formed in this manner.

Another issue is whether the terms and conditions of an online contract are adequately incorporated into the agreement.  For effective incorporation of terms and conditions by way of notice under Australian law, a party must give the other party "reasonable" notice of the terms.  That is, the party relying on the terms must have done all that was reasonable to bring the terms to the attention of the other party.

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