The E-commerce regulations
came into force on
The
Government was required to make these regulations in order to comply with an EC
Directive on the subject, issued in 2000.
These regulations add to and do not replace existing legal requirements.
The
full text of the regulations can be found at
http://www.legislation.hmso.gov.uk/si/si2002/20022013.htm
Key
definitions (paraphrased):
‘information society services’
- ‘ISS’ – meaning services normally
provided for remuneration, by means of electronic equipment and at the request
of a recipient of the service – provided that the services themselves are
provided at a distance, and by means of electronic equipment for processing and
storage of data) – which in general means
Ø
advertising
goods or services online
Ø
selling
goods or services to businesses or consumers online
Ø
transmitting
or storing electronic content or providing access to a telecommunications
network
but
not necessarily
Ø
providing
services face to face using electronic equipment
Ø
providing
services by phone or fax, albeit at a distance
Ø
providing
services having material content (ATM & vending machines)
Ø
broadcasting services (no
requesting recipient).
‘service
providers’ - ‘SP’ – providers of ISS
‘commercial
communication’ – includes most communications
designed to promote a business activity (website, email)
Overview
The regulations
Ø
Make
provision for the
national law that will
apply to the ISS
Ø
Specify
information that must be given by
the SP to a consumer (including discounts and offers in online advertising and
how to conclude contracts online)
Ø
Specify
requirements in relation to
commercial
communications
Ø
Specify
requirements in relation to
electronic
contracts
Ø
Limit
SP’s liability
for unlawful
information they unwittingly carry or store.
Exclusions
There are some
specific matters expressly excluded from the scope of the regulations (reg 3):
Ø
The
field of taxation
Ø
Certain
questions covered by specified data protection & privacy requirements
Ø
Questions
relating to agreements covered by cartel law
Ø
Certain
specified legal services
Ø
Betting
gaming and lotteries (other than promotional competitions or games)
National
law (regs 4 & 5)
The regulations apply
in the
There are specific
exclusions (see schedule to the regulations), which include
Ø
intellectual
property rights
Ø
freedom
of parties to choose the applicable law (eg to resolve civil disputes)
Ø
contractual
obligations regarding consumer contracts (applicable law; information to be provided; terms of contract)
Ø
certain
real estate contracts
Ø
the permissibility of spam.
In general terms, the
Information
(reg 6)
An SP must make the
following information easily, quickly, and permanently accessible:
Ø
the
SP’s name
Ø
the
geographical address at which it is established
Ø
direct
communications details including email address
Ø
details
of any relevant trade registration (understood to be as may be relevant to the
service in question, not the business as a whole)
Ø
details
of any relevant authorisation scheme (understood to be as may be relevant to
the ISS ie the online service, not any subsequent transaction)
Ø
where
the business is part of a profession whose qualifications are recognised across
Ø
VAT
number (if any)
Ø
where
prices are stated, whether or not inclusive of tax and delivery costs
Commercial
Communications (regs 7 &
8)
An SP must ensure
that any form of commercial communication
Ø
is
clearly identifiable as such
Ø
clearly
identifies on whose behalf it is made
Ø
clearly
identifies as such any promotional offer and any conditions thereof
Ø
clearly
identifies as such any promotional competition or game and any conditions
thereof
Where the commercial
communication is unsolicited, it must also be ‘clearly and unambiguously identifiable
as such as soon as it is received’.
Electronic
contracts (regs 9-16)
Before the contract (reg
9):
Where a contract is to be concluded by electronic means (other than between
parties who are not consumers and have agreed otherwise), the SP must provide
before the contract the following information, clearly, comprehensively, and
unambiguously:
Ø
the
different technical steps to follow to conclude the contract, so that the
recipient is aware of the process and of the point at which (s)he will be
committed
Ø
whether
or not the contract will be ‘filed’ by the SP, and if so, whether or not it
will be accessible (note: ‘filing’ is a
concept generally recognised in member states other than UK, and presumably
means filed with some public authority)
Ø
the
technical means for correction of errors prior to placing the order (meaning
here the contractual offer – reg 12)
Ø
the
language(s) offered for conclusion of the contract
Ø
any
codes of conduct relevant to the order must be disclosed, together with the
means of consulting them electronically
Ø
any
applicable terms and conditions must be provided in a way that they can be
stored and reproduced (enabling the other party to save and then print them
should be sufficient to comply with this)
It appears that for
such information to be provided ‘clearly, comprehensively, and unambiguously’,
it must be provided other than actually during the ordering process itself.
These requirements (other
than in relation to terms and conditions) do not apply where the contract
itself is concluded exclusively by person to person communication (including by
email) (reg 9(4)).
Formation of the contract (reg 11): where an order
is to be placed through technological means (other than between parties who are
not consumers and have agreed otherwise), the SP must
Ø
promptly
acknowledge receipt electronically
o
‘receipt’ means when the order is
capable of being accessed by the person receiving it – reg
11(2)(a)
o
it may be that a confirmation screen is
sufficient for this purpose, but a confirmatory email will generally be
preferable
o
where the service paid for is an ISS
the provision of the service itself may be a sufficient receipt for this
purpose (reg 11(2)(b))
Ø
make
available ‘appropriate, effective and accessible technical means’ to allow
identification and correction of input errors prior to placing the order
o
‘order’ here means the contractual offer
(reg 12)
o
thus a ‘review and confirm’ screen, permitting
‘go back and correct’ after collection of all input data and before actually
placing the order appears to be indicated here
o
failure
to comply with this results in the person placing the order having he right to rescind
it, unless a court otherwise orders; note
that no time limits for this are laid down.
These requirements do
not apply where the contract itself is concluded exclusively by person to
person communication (including by email) (reg 11(3)).
SP’s
liability (regs 17-22)
Mere conduit: An
SP providing an ISS which is the transmission of information or provision of
access to information is not generally liable (either civilly or criminally) for
an unlawful transmission (and for the various technical intermediate transient stages
of automatically effecting the transmission), provided the SP did not (reg 17)
Ø
initiate
the transmission
Ø
select
the receiver of the transmission
Ø
select or modify the transmission.
Caching: In
the case of temporary storage for the sole purpose of making more efficient onwards
transmission to others on their request, to avoid liability the SP must (reg 18)
Ø
not
modify the information
Ø
comply
with any conditions on access to the information (which might in a particular case
be eg payment of a fee, or provision of a password)
Ø
comply
with any rules regarding updating the information, specified in a manner widely
recognised and used by industry
Ø
not
interfere with the lawful use of technology, widely recognised and used by industry,
to obtain data on the use of the information
Ø
act
expeditiously to remove or disable access to the information on obtaining
actual knowledge of the fact that
o
the information at the initial source
of the transmission has been removed from the network, or
o
access to it has been disabled, or
o
a
court or other lawful authority has ordered such removal or disablement.
Hosting: Where
the ISS is storage of information, to avoid liability, the recipient of the
service must not be acting under the authority or control of the SP, and the SP must:
Ø
not
have actual knowledge of unlawful activity or information, and (civil claims)
not be aware of facts or circumstances from which it would have been apparent to
the SP that the activity or information was unlawful; or
Ø
act
expeditiously to remove or disable access to the information on obtaining such
knowledge or awareness
Thus, for example, an
SP hosting a website will not generally be liable for illegal material on the
website, unless he either
Ø
(criminal)
has actual knowledge of the activity or information, or
Ø
(civil) has actual knowledge of the activity or information,
and of facts from which it would be apparent that the activity or information
was unlawful.
In determining actual
knowledge, the factors to be taken into account expressly include:
Ø
notice
received by the means of contact specified in compliance with reg 6 (see above - direct
communications details including email address)
Ø
whether the notice includes
the full name and address of the sender, details of the location of the
information in question, and details of the unlawful nature of the activity or information in question.
In other words, a
phone call may be sufficient, provided enough information is given. The SP may then no longer be able to avoid
liability by claiming lack of actual knowledge, if he does not act ‘expeditiously’
in at least disabling access to the offending material.
Monitoring: there is no express obligation imposed by
these regulations on an SP to monitor information stored by or passing through
its hands.
There is also no
express obligation imposed by these regulations to proactively inform the
authorities of alleged illegal activities or information; and there is likewise no express obligation imposed
by these regulations to reactively (ie in response to request) provide the
authorities with information to enable identification of the person storing the
allegedly illegal information. However,
other existing legal powers may well cover the point.
I'd
really appreciate your feedback on this FAQ - so
mail me and tell me what you think
of it, if it's been useful to you, or let me know of any specific problem you
have where I may be able to help.
This
page was last updated on 2nd December 2008
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liability is accepted for any inaccuracy in the information in these pages -
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