E-Commerce

In parallel with, but in legislative steps somewhat behind, the proposed Copyright Directive, in November 1998, the Commission released a proposal for an E-Commerce Directive, which includes provisions dealing with the liability of intermediaries in the on-line environment in general. These provisions have many similarities with the DMCA provisions on Liability Limitation, but are not restricted to copyright. The intention is to circumscribe the extent to which genuine intermediaries may be held liable for content-based infringements of any relevant legislation, including laws controlling defamation, advertising standards, incitement, pornography, financial services and other matters as well as copyright.

That provisions are urgently needed to promote a technologically and operationally consistent application of the law in the European Union is demonstrated by the unrealistic expectations which have been applied by, for example, the Bavarian courts in holding the German Manager of Compuserve liable for the fact that it was possible, using Compuserve's network, to access pornography held outside Germany (details here) and, more recently, by the UK High Court in finding Demon (a UK service provider) liable for one allegedly defamatory article (not produced by or originating from Demon) among millions of newsgroup postings which could be accessed on Demon's servers (see our Internet Cases pages for more details).

Following review by the European Parliament, the Commission issued an amended proposal for a Directive to establish a coherent legal framework for electronic commerce within the Single Market on 1 September 1999. The Council of Ministers subsequently agreed a common position on a revision in February, 2000 (.pdf version), which was ultimately adopted as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). As reported by the European Commission, Member States of the European Union are required to implement the Directive into national law within 18 months.

The UK Government Department of Trade and Industry (DTI) has a website addressing implementation of the E-Commerce Directive into UK law (originally due by deadline of 16 January 2002). The UK Government's initial Consultation Paper (consolidated version in .pdf format) was open for response from August-November 2001. A summary of responses is available.

The DTI subsequently published draft implementing Regulations (.pdf format) and interim guidance notes (.pdf format) for public consultation with responses requested by May 2, 2002.

The Response to Consultation (.pdf) was delivered on 31 July 2002. This summarised the key changes that the Government made in finalising the Electronic Commerce (EC Directive) Regulations 2002 SI 2013. The main body of the Regulations come into force with effect from 21 August 2002. Those parts of the Regulations that deal with "stop now" orders will come into force on 23 October 2002.

A Regulatory Impact Assessment (.pdf); a Guide for Business on the Electronic Commerce Regulations (.pdf); and a Small Business Guidance note (.pdf) on the Regulations are also available.