New
Regulations transposing the remaining portions of the E-Commerce
Directive have come into force
On the 26th February 2003 the Minister of Enterprise Trade
& Employment signed the European Communities (Directive
2000/31/ EC) Regulations 2003 to give effect to those remaining
provisions of the E-Commerce Directive (2001/31/EC) not
transposed into Irish law by the Electronic Commerce Act
2000.
The main objective of the Directive is to contribute to
the free movement of what are termed "information society
services" (i.e. services normally delivered electronically
at a distance but not necessarily for payment between member
states). Examples of such services would include online
newspapers, online financial services, online shopping,
online professional services (i.e. lawyers, doctors, estate
agents and accountants), online entertainment services (i.e.
video on demand), online direct marketing and advertising
and Internet access services.
There are exceptions to the operation of the Directive in
the case of public policy (particularly criminal investigations,
prevention of incitement to hatred and protection of minors),
public health, public or national security and protection
of consumers (including investors acting as consumers),
where the steps taken are proportionate.
The Electronic Commerce Act 2000 partialy transposed the
Directive into Irish Law which principally deals with electronic
signatures, electronic communications and electronic contract
formation.
These Regulations have particular relevance to businesses
providing or advertising goods or services online, the transmission
or storing of electronic content, or the provision of access
to a communication network. Changes will be required to
the medium (i.e. the website) used by businesses to transact
or advertise online, whether by means of the Internet, interactive
TV, or mobile telephones.
The Regulations require that businesses satisfy the following
requirements:
1.
Information and Transparency
- Full
name and address details including the e-mail address
of the business.
- VAT
number.
- Price,
including any delivery or tax charges.
-
Details of registration in any trade or public register
sufficient to identify the business in the register.
- Details
of any applicable authorisation scheme and the relevant
supervisory authority.
-
Professional bodies must detail the rules that apply to
them and provide the individual with access to them (i.e.
hyperlink).
-
If the business subscribes to a code of conduct, details
of how the relevant code can be accessed electronically
must be provided
- Prior
to placing the order details as to the following must
be provided to the individual in a clear and unambiguous
manner:
-
how to place the order (i.e. the technical steps to
be followed to conclude the contract and the point
at which the individual will commit contractually
must be clearly identified);
-
how to identify and correct errors;
-
what language options are offered;
-
whether the contract when made is filed by the business
concerned and accessible to the individual;
-
how to access downloadable terms and conditions governing
the contract in a manner that allows them to be stored
and reproduced by the individual.
- On
receiving an online order to promptly acknowledge receipt
electronically.
- Failure
to comply could lead to prosecution and on summary conviction
to a fine not exceeding €3,000 or three month's imprisonment
or both.
Contracts
exclusively concluded by telephone, fax or e-mail are excluded
from the ambit of the Regulations.
2. Commercial Communications
-
Commercial communications (i.e. e-mail advertising or
"spam") whether solicited or not must be clearly
identifiable as such.
-
The identity of the sender must be clearly stated.
- Full
details of the terms of any promotions, competitions or
special offers must be clearly stated and explained.
- Those
using unsolicited commercial communications will have
to provide prominent access to a register for those individuals
not wishing to receive such communications at every point
where individuals are asked to provide information to
the service provider.
-
Failure to comply could lead to prosecution and on summary
conviction to a fine not exceeding €3,000 or three
month's imprisonment or both.
3.
Regulated Professions
Members of regulated professions using commercial communications
as part of, or in connection with, the provision of their
services will have to comply with the following:
- The
rules governing the independence, dignity and honour of
the profession;
-
The obligation to respect the professional obligations
as to secrecy and fairness towards clients and other members
of the profession; and
- The
encouragement of such professional bodies and associations
to establish codes of conduct.
4.
Liability of Internet Service Providers
The liability of Internet service providers who unwittingly
carry or store unlawful content will be limited where the
service provider does not initiate the transmission, does
not select the recipient of the transmission or, does not
select or modify the information contained in the transmission.
Internet service providers will not be liable for "caching"
of information provided the service provider does not modify
the information, complies with conditions relating to access
to the information, complies with relevant industry standards
regarding the up dating of the information, does not unlawfully
interfere with the technology used to obtain data on the use
of the information and acts quickly to remove or disable access
to the information when informed or ordered by a court or
competent administrative authority.
Internet service providers who "host" information
will not be liable for the information stored by it where
the service provider does not have actual knowledge of the
illegal activity or information, or is unaware of facts or
circumstances from which the illegal activity is apparent
or, on becoming aware acts expeditiously to remove or disable
access to such information.
Conclusion.
The purpose of the Directive and the legislation transposing
it into Irish law is first and foremost to promote the development
of e-commerce, to stimulate economic growth and investment
in innovation by EU companies and to break down barriers to
competition. The legislation also seeks to boost consumer
confidence by clarifying the rights and obligations of businesses
and consumers.
Businesses in Ireland need to be aware that the consequences
of non-compliance with the Regulations could be very serious
for them. Consumers may cancel their order or seek recover
damages through the courts for breach of statutory duty if
they can establish that they have suffered loss as a result
of breach of the Regulations by the business concerned. The
Minister of Enterprise Trade & Employment, the Data Protection
Commissioner and the Director of Consumer Affairs have extensive
powers to investigate alleged breaches of the Regulations
and in addition certain breaches of the Regulations could
result in prosecution.
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 2003
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