Keyed into providing a common touch

Electronic Commerce: Sylvain Magdinier explains the benefits of EU legislation

EU member states are required to implement the Electronic Commerce Directive 2000 into national law by 16 January 2002.

The deadline for submissions to the government consultation process on implementation of the directive was 2 November 2001.

The new law will affect most on-line businesses.

The directive applies to 'information society services', which covers on-line services whether provided to businesses or consumers.

It will impose a minimum level of regulatory harmonisation, designed to encourage businesses to take up the provision of on-line services, and foster consumer confidence in receiving such services.

The directive requires service providers to comply with the relevant e-commerce rules of the member state in which they are established.

The intention is to promote e-commerce by ensuring that service providers only need to worry about legal compliance with their 'home' laws and regulations.The government supports this approach, but there are considerable uncertainties as to how far the principle goes in practice.

Specific derogations from the 'country of origin' principle include: intellectual property; choice of applicable contract law; and contractual consumer protection.

The area of financial services will be considered in a separate Treasury consultation.The directive requires service providers to inform the recipient, prior to the order being placed, of the technical steps necessary to conclude the contract, whether the concluded contract will be filed by the service provider and the technical means for identifying and correcting input errors.

These information requirements are mandatory in consumer contracts and will force service providers to audit their current Web sites for compliance.In addition, contract terms must be made available in a manner that permits the recipient to store and reproduce them, and service providers will be required to acknowledge receipt of the recipient's order 'without undue delay'.However, after much political argument, it was decided that the directive should not address the question of when an on-line contract will be concluded.Service providers will need to provide general identification and contact information in an easily and permanently accessible form.

'Commercial communications' (marketing information) must be identified as such, together with any terms relevant to promotional offers.

Service providers which send unsolicited e-mail must respect any opt-out registers to which the recipient has subscribed.

Service providers that merely transmit or store third-party content are to be exempt from liability for the illegal nature of the content, depending upon their level of actual responsibility for the content and their compliance with obligations to remove such content on notification.With regard to the operational details of any 'notice and take-down' regime, the government favours self-regulation rather than legislation.It will be interesting to see how the government decides to approach the implementation of the E-Commerce Directive in the light of consultation responses.Sylvain Magdinier is a solicitor in the IP, IT and digital business group at Landwell UK