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Electronic
Communication
The Electronic Commerce Act 2000 came into force on the 20th September,
2000. The Act implemented the EU Electronic Signatures Directive
(1999/93/EC) by validating the use of electronic signatures. With
its enactment, Ireland became one of the first jurisdictions in
the world to enact specific e-business legislation.
The Act anticipated part of the EU Directive on Electronic Commerce
(2000/31/EC) by also giving legal recognition to electronic communications,
electronic information and electronic contracts. A contract may
be evidenced in either the traditional paper-based format or in
electronic format, as the parties to the contract themselves decide.
The Act does not compel contracting parties to communicate or conduct
business electronically and does not distinguish between B2B and
B2C contracts.
The Act provides for the submission of information in electronic
form to public bodies, where the public body concerned first consents
to the electronic submission. For example, the Revenue Commissioners
have launched the "Revenue On Line" service which, when
fully deployed, will allow taxpayers to deal with the Revenue Commissioners
on line.
The Act permits the use of encryption. There is no requirement to
disclose private keys. It provides for the establishment of Certification
Service Providers (CSP’s) and there are no prior licensing
or authorisation requirements. The Act imposes on CSP’s, liability
in damages where users of their certificates suffer loss through
the negligence of the CSP.
The Act provides that electronic communications and electronic signatures
are admissible in court proceedings. However, certain limited exclusions
exist, namely wills, trusts, Enduring Powers of Attorney, affidavits
or sworn declarations, and the rules, practices and procedures of
any court or tribunal and the transfer of any interest in real property,
although it is possible to conclude a binding electronic contract
for such interests in real property. The Government intends these
exclusions to be temporary, and may remove them when it has judged
that the technology is sufficiently advanced and procedures and
practices have developed to a sufficient degree.
Existing defamation law provisions apply to all electronic communications
in Ireland, including the retention of information by electronic
means. To date, the Irish courts have not decided whether Internet
Service Providers (ISPs) are liable for content displayed on their
sites, but if a complaint is made to an ISP notifying it that its
site contains defamatory material, the ISP is legally permitted
to shut down the web page containing the defamatory material, even
in the absence of a court order to do so.
The Act provides that consumer contracts concluded electronically
in Ireland will be subject to all existing consumer laws. The role
of the Director of Consumer Affairs in the enforcement of consumer
protection legislation applies to all consumer transactions, whether
conducted electronically or otherwise. For more detailed information
about this subject, see our Consumer
Law section.
On the 26th Febuary 2003 the European Communities Directive (2000/31/EC)
Regulations 2003 came into force to give effect to those remaining
provisions of the Electronic Commerce Directive (2001/31/EC) not
transposed into Irish law by the Electronic Commerce Act 2000. Under
these Regulations an ISP will not be liable if it is a mere conduit
– namely does not initiate transmission, does not select the
receiver of the transmission and does not select or modify the information
in the transmission. The same rule shall apply to caching –
automatic, intermediate and temporary storage of that information
- performed for the sole purpose of making more efficient the information’s
onward transmission to other recipients.
If the ISP is merely hosting, no liability will attach if the ISP
had no actual knowledge or was not aware of facts or circumstances
from which the illegal activity or information was apparent provided
that it acts quickly to remove access to the information once it
is made aware of the circumstances.
In addition, ISP’s are not obliged to monitor emails or websites.
At present, there is no single regulatory body with overall responsibility
for the regulation of e-business and Internet access, tariffs and
charges. Regulators within the Irish economic sectors include the
Competition Authority, the Office of the Director of Corporate Enforcement,
the ComReg (the Telecommunications Regulator), the Commission for
Energy Regulation, the Director of Consumer Affairs, the Data Protection
Commissioner and the Information Commissioner.
Pending
legislation that has potential consequences for e-business activity
in Ireland includes EU Directives on distance selling, distance
marketing of consumer financial services, copyright and related
rights in the information society and a Directive on legal aspects
of e-business in the EU’s internal market.
For
further information or general enquiries contact: -
Patrick Ryan
Email: pryan@kilroys.ie
Telephone: +3531-439 5600
Fax: +3531-439 5601/439 5602
© Kilroys Solicitors 2002 - 2003
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