Legal Issues in E-Healthcare Systems - E-Healthcare Systems and Wireless Communications - page 37

cept of signature is the authentication, the digital
signature serves its purpose very well, as it is very
difficult to forge. The digital signature provides a
process to determine who sends a communication
and determine the identity of the sender. If a digi-
tal signature provides information about whether
the message has not been altered and identifies
the sender, the sender will be unable to repudi-
ate either the contents of the message or that it
was sent by him. This will solve the problems of
authentication and verification of the electronic
contracts. It also provides confidentiality.

person beyond geographical boundaries becomes
a primary factor to be considered because of the
borderless nature of e-activities.
In EU countries, The Brussels Convention on
Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters 1968 and Brus-
sels II Regulation (Council Regulation (EC) No.
44/2001 of 22 December 2000 on Jurisdiction and
the recognition and enforcement of judgments in
civil and commercial matters) will be applicable in
determining which court has civil jurisdiction and
how judgments may be enforced. The Regulation
updates the Convention to take accounts of the
fact that commercial transaction over the Internet
between traders and consumers are now in com-
monplace. The Regulation especially addresses the
issue on whether a trader targeted or directed its
products to a consumer in an Internet transaction.
Brussels Convention and Regulation in Article
2 as a general rule of all types of contract state
that the defendants should be sued in the country
of domicile irrespective of their nationality. The
provision presupposes that the defendant is do-
miciled in contracting state to the Convention, if
he is not domiciled in the contracting state to the
convention; jurisdiction is to be determined by
domestic law as per Article 4. However, Art. 2(1)
allows the parties to predetermine in the agreement
as to which country's court shall have jurisdiction
to try a dispute between them.
Both the Convention and the Regulation state
in Article 5(1) that the claimants in a contract
are required to sue the defendant in the courts of
“the place of performance of the obligation” in
question. The question is if the obligation is to be
performed entirely online where would the place
of performance? Additionally, not all countries fol-
low this requirement of “the place of performance
of the obligation”, implementing this requirement
beyond EU may create difficulties. For example
US courts require a nexus between the defendant
and the place of performance and not “the place
of performance of the obligation ” to establish
jurisdiction (Donaldson, 2001).

Jurisdiction of Courts

As the community of Internet users for e-health
purposes grows increasingly diverse, and the range
of online interaction expands, disputes of every
kind may be expected to occur. On-line contracts
will be breached, on-line negligence can be com-
mitted, privacy invasion may occur. Although
many of these disputes will be settled informally,
others may require formal mechanisms for dispute
resolution of their activities touch. When the par-
ties concerned want to bring a formal action the
questions like who is having jurisdiction to hear
the case? How would a judgement be enforced
against a defendant who is in another country?
would arise. In other words, jurisdiction issues
in the context of online e-health activities pres-
ent one of the greatest challenges to the current
system and the way of addressing disputes that
involve two or more countries.
The current laws regulating jurisdictional is-
sues are applying geographical criteria. Accord-
ingly, the courts will not expend its jurisdiction
beyond its borders. The courts refuse to issue
injunctions beyond its physical jurisdiction stat-
ing that there is a doubt about the enforcement of
local laws and judgement in foreign jurisdiction
and such exercise will create concern for freedom
of expression (Bygrave & Svantesson, n.d). How-
ever, with the e-activities, geographical boundaries
become meaningless. Exercise of jurisdiction over