על הצעת חוק מסחר אלקטרוני ומודל ההתאמה האינטגרטיבי להסדרתו ולמיסויו של המסחר האלקטרוני (The Electronic Commerce Bill and the Integrative Adaptation Model of E-Commerce Regulation and Taxation)
13 Law & Business (IDC Law Review) 191-252 (2010)
62 Pages Posted: 6 Nov 2016
Date Written: 2010
English Abstract: Two important developments have recently taken place in Israeli laws regarding the Internet. The first is of a legislative character, regarding the Electronic Commerce Bill of 2008 that seeks to regularize certain aspects of the civil law with regards to the electronic world; the second development regards the ruling in the case of Rami Mor (CCA 4447/07 Rami Mor v Barak ITC (1995) HaHevra LeSheruity Bezeq Beinleiumiim (Mar. 25, 2010)), whose majority opinion could be considered to grant a complete and total defense to the anonymity of the internet user and her freedom of expression, and granted complete immunity to a potential offender who sullies another's reputation.
In the following I shall criticality discuss issues arising from these developments. It is my position that both the Israeli regulator and Supreme Court have failed to fulfill their respective duties with regards to the development of regulations and settling disputes arising from internet law. This creates a gap between the law as it stands today and the modernity of life on the internet, which indicates the Israeli legal system is significantly lagging behind in comparison to more advanced legal systems, and poses a challenge to certain fundamental rights.
I will base myself upon the two aforementioned developments to outline the theoretical basis for Internet regulation and propose a separation of powers model between the legislature and the judiciary. The thesis proposed is one which maintains the imposition of legal regulations on the Internet should be done by the integrative measures of new legislation and case-law development drawing upon other branches of law in search for applicable and existing judicial doctrines. I implement the thesis proposed in this article on the Electronic Commerce Bill, and propose a classification and outline for each of the issues that it arouses. I further apply the thesis extensively with regards to the taxation of electronic commerce and an integrative model for national and international taxation of electronic commerce. The model proposes a four-prong approach to taxation: First, it considers the development of residence and classification of income rules by case law; Second, it revisits the need for a revision of classification of legislative income rules; Third, it explores the use of technology to ensure enforcement of tax law and Fourth, it discusses the need for securing an international consensus and convention of a treaty.
Note: Downloadable document is in Hebrew.
Keywords: law, internet, e-commerce, tax, e-commerce taxation, Israeli law
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