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 of the Government of Ireland 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 partially 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:
• o 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);
• o how to identify and correct errors;
• o what language options are offered;
• o whether the contract when made is filed by the business concerned and accessible to the individual;
• o 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 or
Connor Manning
E-mail: cmanning@kilroys.ie 
Telephone: +3531-439 5600
Fax: +3531-439 5601/439 5602
© Kilroys Solicitors 2003

About the Author: Patrick Ryan

Patrick practices in the areas of e-business and information technology law, telecommunications law, and public tendering law. Patrick was admitted as a solicitor in 1987 and holds a law degree from University College Cork. He is a member of the International Bar Association, the Computer Law Association and the Institute of Taxation of Ireland.
Contact: pryan@kilroys.ie