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Net Law Roundup #34

by Jeremy Malcolm, Internet lawyer

One of the occasional little surprises for parents nowadays is the unexpected cost of their childrens' Internet usage. As well as excess download charges, there is the cost of purchases that children may knowingly or unknowingly make online. Are these expenses enforceable?

The answer is that it depends. Such charges will be enforceable against the child's parents directly if it is the parent's contract that the child has used, or if the parents have agreed to accept responsibility on the child's behalf (which is essentially the same thing). Generally usage of an Internet account will fall into this category.

If however the child enters into a contract on their own behalf, generally it is not enforceable against their parents. In fact if the contract was entered into in Australia, it cannot even be enforced against the child unless it is a contract for the supply of goods that are necessary for the child's survival - for example, food and clothing - or a contract for services that is for the child's benefit.

In such a case, the child has the option to comply with the contract or to terminate it. If the contract is made overseas the situation may differ, however the likelihood of an overseas court judgment against a child being enforced against him or her in Australia is rather remote. In fact, unless the child has savings of their own, the likelihood of anyone recovering money from them in court is minimal.

The implications of this for merchants should be obvious - they should never enter into a contract with a child unless a parent signs on the child's behalf, because otherwise the child will be able to choose to avoid their obligations. This is one reason why so many Internet sites require payment by credit card, since it is a fair indication that the purchaser is over 18 years.

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances