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The Electronic Commerce Directive (00/31/EC) and the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No. 2013)

Summary and Background

On the 21 August 2002 the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No. 2013) transposed into UK law the majority of the provisions of the Electronic Commerce Directive (2000/31/EC), on certain legal aspects of information society services, in particular electronic commerce, in the internal market (“the Electronic Commerce Directive”).

Regulation 16 of the Electronic Commerce (EC Directive) Regulations 2002 came into force on the 23 October 2002. They extend the Stop Now Orders (EC Directive) Regulations 2001 to include the consumer protection elements of the E-Commerce Regulations. This as now been subsumed into Part 8 of the Enterprise Act 2002, which provides the Office of Fair Trading or other named consumer protection bodies to make applications to the courts for “enforcement orders” to restrain persons from conduct infringing provisions of domestic and European consumer protection legislation. The courts will also be able to order businesses and service providers to publish corrective statements with a view to eliminating the continuing effects of past infringements.

HM- Treasury implemented separately the requirements of the E-Commerce Directive for the financial services sector.

The key features of the Electronic Commerce (EC Directive) Regulations 2002 are:

Online selling and advertising is subject to the laws of the UK if the trader is established in the UK. Online services provided from other Member States may not be restricted. There are exceptions, particularly for contracts with consumers and the freedom of parties to choose the applicable law;

Recipients of online services must be given clearly defined information about the trader, the nature of commercial communications (i.e. e-mails) and how to complete an online transaction;

Online service providers are exempt from liability for the content that they convey or store in specified circumstances; and

Changes to the powers of enforcement authorities such as Trading Standards Departments and the Office of Fair Trading.

Businesses who conduct business online should also be aware of the requirements placed on them by the Distance Selling Regulations 2000 (SI 2000 No. 2334), which implemented Distance Selling Directive 97/7/EC of 20 May 1997 on the protection of consumers in respect of distant contracts.

Background

The purpose of the Directive (and therefore the Regulations) is to ensure the free movement of “information society services” across the European Community and to encourage greater use of e-commerce by breaking down barriers across Europe and boost consumer confidence and trust by clarifying the rights and obligations of businesses and consumers.

The E-Commerce Directive was adopted on 8 June 2000 and published in the Official Journal of the European Communities on the 17 July 2000. The objective was to ensure that information society services benefit from the internal market principles of free movement of services and freedom of establishment, in particular through the principle that they can trade throughout the European Community unrestricted or what is known as the “Country of Origin” rule.