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Legal aspects of electronic commerce ("Directive on electronic commerce")

The purpose of the Directive on electronic commerce is to improve the legal security of such commerce in order to increase the confidence of Internet users. It sets up a stable legal framework by making information society services subject to the principles of the internal market (free circulation and freedom of establishment) and by introducing a limited number of harmonised measures.

ACT

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").

SUMMARY

The Directive is based on the guidelines in the Commission communication on electronic commerce [COM(97) 157 final] which set the objective of creating a legal framework for electronic commerce in Europe by the year 2000. The approach taken aims, in particular, at avoiding over-regulation, is based on the free internal market, takes account of commercial realities and provides efficient protection for objectives in the general interest. The Directive also takes account of the wish to remove disparities between case-law in the Member States so as to introduce a level of security which will encourage the confidence of consumers and enterprise.

Scope

The Directive covers all information society services: * services between enterprises, services between enterprises and consumers, services provided free to the recipient which are financed, for example, by advertising income or sponsoring, and services * allowing on-line electronic transactions (interactive telesales of goods and services and on-line purchasing centres in particular).

It covers the following on-line sectors and activities in particular: newspapers, databases, financial services, professional services (solicitors, doctors, accountants, estate agents), entertainment services (video on demand, for example), direct marketing and advertising and Internet access services.

The Directive applies solely to service providers * established in the European Union (EU). However, to avoid affecting global electronic commerce, the Directive seeks to avoid incompatibilities with legal trends in other parts of the world.

Application of the national legislation in the Member State where the provider is established

Under Article 3, providers of information society services (Internet site operators, for example) are subject to the legislation of the Member State in which they are established (originating country rule or "Internal Market clause"). The Directive defines a provider's place of establishment as the place in which a service provider effectively pursues an economic activity using a fixed establishment for an indefinite period.

  • service provider: any natural or legal person providing an information society service;
  • established service provider: a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider;
  • recipient of the service: any natural or legal person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible;
  • commercial communication: any form of communication, apart from the specific exceptions listed in the Directive, designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exercising a regulated profession;
  • opt-out: unsolicited transmission of commercial communications to a list of e-mail addresses of Internet users who have not given their explicit consent to receiving commercial messages but who have the option of withdrawing their name from the list. In this system, the consent of the Internet user is implicit.
  • opt-in: authorised transmission of commercial communications to a list of e-mail addresses of Internet users who have given their prior consent to receiving advertisements. In this case, the consent of the Internet user is explicit.
  • spamming (or unsolicited bulk e-mail): spam (slang) is used to describe unwanted junk mail. Spamming is the transmission of a single message to a large number of Internet users. It is also a marketing technique, primarily untargeted, using electronic addresses to send advertisements which pollute the electronic mailboxes of Internet users.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal
Directive 2000/31/EC [adoption: codecision COD/1998/0325]17.07.2000-OJ L 178, 17.07.2000

RELATED ACTS

Commission Report of 21 November 2003: first report on the application of 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").

This report is the first evaluation of the transposition, the implementation and the impact of the Directive on electronic commerce. It shows that the Directive has had a positive effect on electronic commerce in Europe, which is constantly increasing.

The transposition of the Directive in the Member States is generally satisfactory. With the exception of the Netherlands, the Member States have decided to transpose the Directive by adopting a horizontal law on electronic commerce to create a national framework that is as clear as possible. During the transposition phase, attention has been focussed on the internal market clause and the provisions on the liability of intermediate service providers. Certain Member States decided to include supplementary elements in their national legislation which were not covered by the Directive, including: the responsibility of providers of internet links and search engines, notification procedures for and the withdrawal of illegal content, registration requirements for service providers, filtering, encryption and data retention. The report also emphasises that the Directive seems to have reduced the number of court actions and consequently the legal uncertainty, in particular with regard to the liability of Internet service providers. This suggests that the Directive has succeeded in providing an appropriate legal framework for information society services.

With regard to follow-up work, the Commission would like to:

- guarantee the correct application of the Directive;

- encourage administrative cooperation and the exchange of information between Member States;

- improve the information available to and the awareness of enterprises and citizens;

- follow political developments and identify areas for action in future;

- strengthen international cooperation and legislative dialogue.

Commission Communication to the Council, the European Parliament and the European Central Bank of 14 May 2003 on the application to financial services of Article 3(4) to (6) of the Electronic Commerce Directive [COM(2003) 259 - Not published in the Official Journal].

This communication is designed to ensure that the mechanisms set out in Article 3(4) to (6) of the Electronic Commerce Directive and allowing Member States to apply on a case-by-case basis general-interest restrictions on an information society service provided in another Member State are correctly and strictly applied. It provides assistance to Member States wishing to avail themselves of those mechanisms although it is not an interpretative document. The analysis it contains is based on the Court of Justice's case law. It does not attempt systematically to cover all the aspects of the Article in question, addressing only those where the Commission has noted that there is a need for some explanation and assistance.

 
Last updated: 05.01.2005
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