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2002 No. 2013

ELECTRONIC COMMUNICATIONS

The Electronic Commerce (EC Directive) Regulations 2002

  Made 30th July 2002 
  Laid before Parliament 31st July 2002 
  Coming into force
  Regulation 16 23rd October 2002 
  Remainder 21st August 2002 

The Secretary of State, being a Minister designated[1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to information society services, in exercise of the powers conferred on her by that section, hereby makes the following Regulations: - 

Citation and commencement
     1.  - (1) These Regulations may be cited as the Electronic Commerce (EC Directive) Regulations 2002 and except for regulation 16 shall come into force on 21st August 2002.

    (2) Regulation 16 shall come into force on 23rd October 2002.

Interpretation
     2.  - (1) In these Regulations and in the Schedule - 

but does not cover requirements such as those applicable to goods as such, to the delivery of goods or to services not provided by electronic means;

    (2) In regulation 4 and 5, "requirement" means any legal requirement under the law of the United Kingdom, or any part of it, imposed by or under any enactment or otherwise.

    (3) Terms used in the Directive other than those in paragraph (1) above shall have the same meaning as in the Directive.

Exclusions
     3.  - (1) Nothing in these Regulations shall apply in respect of - 

    (2) These Regulations shall not apply in relation to any Act passed on or after the date these Regulations are made or in exercise of a power to legislate after that date.

    (3) In this regulation - 

Internal market
     4.  - (1) Subject to paragraph (4) below, any requirement which falls within the coordinated field shall apply to the provision of an information society service by a service provider established in the United Kingdom irrespective of whether that information society service is provided in the United Kingdom or another member State.

    (2) Subject to paragraph (4) below, an enforcement authority with responsibility in relation to any requirement in paragraph (1) shall ensure that the provision of an information society service by a service provider established in the United Kingdom complies with that requirement irrespective of whether that service is provided in the United Kingdom or another member State and any power, remedy or procedure for taking enforcement action shall be available to secure compliance.

    (3) Subject to paragraphs (4), (5) and (6) below, any requirement shall not be applied to the provision of an information society service by a service provider established in a member State other than the United Kingdom for reasons which fall within the coordinated field where its application would restrict the freedom to provide information society services to a person in the United Kingdom from that member State.

    (4) Paragraphs (1), (2) and (3) shall not apply to those fields in the annex to the Directive set out in the Schedule.

    (5) The reference to any requirements the application of which would restrict the freedom to provide information society services from another member State in paragraph (3) above does not include any requirement maintaining the level of protection for public health and consumer interests established by Community acts.

    (6) To the extent that anything in these
Regulations creates any new criminal offence, it shall not be punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than 100 a day[12].

Derogations from Regulation 4
     5.  - (1) Notwithstanding regulation 4(3), an enforcement authority may take measures, including applying any requirement which would otherwise not apply by virtue of regulation 4(3) in respect of a given information society service, where those measures are necessary for reasons of - 

and proportionate to those objectives.

    (2) Notwithstanding regulation 4(3), in any case where an enforcement authority with responsibility in relation to the requirement in question is not party to the proceedings, a court may, on the application of any person or of its own motion, apply any requirement which would otherwise not apply by virtue of regulation 4(3) in respect of a given information society service, if the application of that enactment or requirement is necessary for and proportionate to any of the objectives set out in paragraph (1) above.

    (3) Paragraphs (1) and (2) shall only apply where the information society service prejudices or presents a serious and grave risk of prejudice to an objective in paragraph (1)(a) to (d).

    (4) Subject to paragraphs (5) and (6), an enforcement authority shall not take the measures in paragraph (1) above, unless it - 

    (5) Paragraph (4) shall not apply to court proceedings, including preliminary proceedings and acts carried out in the course of a criminal investigation.

    (6) If it appears to the enforcement authority that the matter is one of urgency, it may take the measures under paragraph (1) without first asking the member State in which the service provider is established to take measures and notifying the Commission and the member State in derogation from paragraph (4).

    (7) In a case where a measure is taken pursuant to paragraph (6) above, the enforcement authority shall notify the measures taken to the Commission and to the member State concerned in the shortest possible time thereafter and indicate the reasons for urgency.

    (8) In paragraph (2), "court" means any court or tribunal.

General information to be provided by a person providing an information society service
    
6.  - (1) A person providing an information society service shall make available to the recipient of the service and any relevant enforcement authority, in a form and manner which is easily, directly and permanently accessible, the following information - 

    (2) Where a person providing an information society service refers to prices, these shall be indicated clearly and unambiguously and, in particular, shall indicate whether they are inclusive of tax and delivery costs.

Commercial communications
     7. A service provider shall ensure that any commercial communication provided by him and which constitutes or forms part of an information society service shall - 

Unsolicited commercial communications
    
8. A service provider shall ensure that any unsolicited commercial communication sent by him by electronic mail is clearly and unambiguously identifiable as such as soon as it is received.

Information to be provided where contracts are concluded by electronic means
     9.  - (1) Unless parties who are not consumers have agreed otherwise, where a contract is to be concluded by electronic means a service provider shall, prior to an order being placed by the recipient of a service, provide to that recipient in a clear, comprehensible and unambiguous manner the information set out in (a) to (d) below - 

    (2) Unless parties who are not consumers have agreed otherwise, a service provider shall indicate which relevant codes of conduct he subscribes to and give information on how those codes can be consulted electronically.

    (3) Where the service provider provides terms and conditions applicable to the contract to the recipient, the service provider shall make them available to him in a way that allows him to store and reproduce them.

    (4) The requirements of paragraphs (1) and (2) above shall not apply to contracts concluded exclusively by exchange of electronic mail or by equivalent individual communications.

Other information requirements
     10. Regulations 6, 7, 8 and 9(1) have effect in addition to any other information requirements in legislation giving effect to Community law.

Placing of the order
     11.  - (1) Unless parties who are not consumers have agreed otherwise, where the recipient of the service places his order through technological means, a service provider shall-

    (2) For the purposes of paragraph (1)(a) above - 

    (3) The requirements of paragraph (1) above shall not apply to contracts concluded exclusively by exchange of electronic mail or by equivalent individual communications.

Meaning of the term "order"
     12. Except in relation to regulation 9(1)(c) and regulation 11(1)(b) where "order" shall be the contractual offer, "order" may be but need not be the contractual offer for the purposes of regulations 9 and 11.

Liability of the service provider
     13. The duties imposed by regulations 6, 7, 8, 9(1) and 11(1)(a) shall be enforceable, at the suit of any recipient of a service, by an action against the service provider for damages for breach of statutory duty.

Compliance with Regulation 9(3)
     14. Where on request a service provider has failed to comply with the requirement in regulation 9(3), the recipient may seek an order from any court having jurisdiction in relation to the contract requiring that service provider to comply with that requirement.

Right to rescind contract
    
15. Where a person - 

he shall be entitled to rescind the contract unless any court having jurisdiction in relation to the contract in question orders otherwise on the application of the service provider.

Amendments to the Stop Now Orders (E.C. Directive) Regulations 2001
     16.  - (1) The Stop Now Orders (E.C. Directive) Regulations 2001[14] are amended as follows.

    (2) In regulation 2(3), at the end there shall be added - 

    (3) In Schedule 1, at the end there shall be added - 

Mere conduit
     17.  - (1) Where an information society service is provided which consists of the transmission in a communication network of information provided by a recipient of the service or the provision of access to a communication network, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that transmission where the service provider - 

    (2) The acts of transmission and of provision of access referred to in paragraph (1) include the automatic, intermediate and transient storage of the information transmitted where:

Caching
    
18. Where an information society service is provided which consists of the transmission in a communication network of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that transmission where - 

Hosting
    
19. Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where - 

Protection of rights
    
20.  - (1) Nothing in regulations 17, 18 and 19 shall - 

    (2) Any power of an administrative authority to prevent or stop infringement of any rights shall continue to apply notwithstanding regulations 17, 18 and 19.

Defence in Criminal Proceedings: burden of proof
     21.  - (1) This regulation applies where a service provider charged with an offence in criminal proceedings arising out of any transmission, provision of access or storage falling within regulation 17, 18 or 19 relies on a defence under any of regulations 17, 18 and 19.

    (2) Where evidence is adduced which is sufficient to raise an issue with respect to that defence, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

Notice for the purposes of actual knowledge
     22. In determining whether a service provider has actual knowledge for the purposes of regulations 18(b)(v) and 19(a)(i), a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, among other things, shall have regard to - 


Alan Johnson,
Minister of State for Employment Relations Industry and the Regions, Department of Trade and Industry

30th July 2002



SCHEDULE
Regulation 4(4)

     1. Copyright, neighbouring rights, rights referred to in Directive 87/54/EEC[
16] and Directive 96/9/EC[17] and industrial property rights.

     2. The freedom of the parties to a contract to choose the applicable law.

     3. Contractual obligations concerning consumer contracts.

     4. Formal validity of contracts creating or transferring rights in real estate where such contracts are subject to mandatory formal requirements of the law of the member State where the real estate is situated.

     5. The permissibility of unsolicited commercial communications by electronic mail.



EXPLANATORY NOTE

(This note is not part of the
regulations)


These Regulations implement Articles 3, 5, 6, 7(1), 10 to 14, 18(2) and 20 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)[18] ("the Directive") except in those areas covered by the measures referred to in the paragraph below.

These Regulations should be read with the Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2002 (S.I. 2002/1776), The Electronic Commerce Directive (Financial Services and Markets) (Amendment) Regulations 2002 (S.I. 2002/2015) and the Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (Electronic Commerce Directive) Order 2002 (which is expected to be made shortly and to come into force on 21st August 2002). They make parallel provisions in those areas subject to regulation by the Financial Services Authority under the Financial Services and Markets Act 2000.

Regulation 3(1) sets out those matters excluded from the scope of the Regulations. Regulation 3(2) provides that the Regulations do not have prospective effect.

Regulation 4(1) makes requirements within the coordinated field apply to the provision of an information society service by a service provider established in the United Kingdom irrespective of whether that service is provided in the United Kingdom or in another member State. (Regulation 2(1) defines the coordinated field as requirements relating to the taking up and pursuit of the activity of an information society service and defines an information society service with reference to the definition in Article 2(a) of the Directive.) Enforcement authorities are required under regulation 4(2) to secure compliance with those requirements. Conversely, regulation 4(3) provides that requirements within the coordinated field are not to be applied to information society services provided by a service provider established in another member State for reasons which fall within the coordinated field where their application would restrict the freedom to provide information society services. By virtue of regulation 4(4), these provisions do not apply to those fields set out in the Schedule.

Regulation 5 allows an enforcement authority or, where no enforcement authority is a party to the proceedings, a court to take measures exceptionally in respect of a given information society service in derogation from regulation 4(3), where these are necessary for reasons of public policy, public health, public security, and the protection of consumers and proportionate to those objectives.

Regulation 6 imposes a duty on a person providing an information society service to make available to the recipient of that service certain information.

Regulation 7 imposes a duty on a service provider to ensure that any commercial communications constituting or forming part of an information society service which he provides complies with certain requirements.

Regulation 8 imposes a duty on a service provider to ensure that any unsolicited commercial communication sent by him is clearly and unambiguously identifiable as such as soon as it is received.

Regulation 9 imposes a duty on a service provider to provide certain information where contracts are concluded by electronic means unless parties who are not consumers have agreed otherwise.

Regulation 10 provides that regulations 6 to 9(1) have effect in addition to any other information requirements in Community law. These include those contained in the Consumer Protection (Distance Selling) Regulations 2000 (S.I.2000/2334).

Regulation 11 imposes requirements on the service provider in relation to the placing of an order unless parties who are not consumers have agreed otherwise.

Regulations 13 to 15 set out the consequences of a failure to comply with regulations 6 to 9 and 11.

Regulation 16 amends the Stop Now Orders (E.C. Directive) Regulations 2001 so that an application can be made under those Regulations for a court order to stop an infringement of the Directive which harms the collective interests of consumers. For this purpose, regulations 6, 7, 8, 9, and 11 of these Regulations are added to the list of the UK legislation implementing the Directives to which the 2001 Regulations apply.

Regulations 17 to 19 create a defence for intermediary service providers from any liability incurred from the activities of mere conduits, caching and hosting in the circumstances set out in those regulations. Regulation 20 provides that regulations 17 to 19 do not preclude the agreement of different contractual terms or affect the rights of any party to apply to a court for relief or the power of any administrative authority to prevent or stop the infringement of any rights. Regulation 21 makes provision in relation to the burden of proof in criminal proceedings arising out of the circumstances in regulations 17 to 19. Regulation 22 makes provision in relation to matters which a court should have regard to when determining whether a service provider has actual knowledge for the purposes of regulations 18(b)(v) and 19(a)(i).

A transposition note setting out how the main elements of the Directive are transposed into law and a regulatory impact assessment have been placed in the libraries of both Houses of Parliament. Copies are also available from the International Communications Unit, Department of Trade and Industry, Bay 206, 151 Buckingham Palace Road, London SW1W 9SS.


Notes:

[1] S.I. 2001/2555.back

[2] 1972 c. 68.back

[3] O.J. L178, 17.7.2000, p.1.back

[4] O.J. L1, 3.1.94, p.3 and p.572.back

[5] O.J. L204, 21.7.98, p.37.back

[6] O.J. L217, 5.8.98, p.18.back

[7] O.J. L19, 24.1.89, p.16. Directive as last amended by Directive 2001/19/EC; O.J. L206, 31.7.2001, p.1.back

[8] O.J. L209, 24.7.92, p.25. Directive as last amended by Directive 2001/19/EC; O.J. L206, 31.7.2001, p.1.back

[9] O.J. L281, 23.11.95, p.31.back

[10] O.J. L24, 30.1.98, p.1.back

[11] O.J. L201, 31.7.2002, p.37.back

[12] The maximum penalty allowed under paragraph 1(1)(d) of Schedule 2 of the European Communities Act 1972 c. 68.back

[13] O.J. L145, 13.6.77, p.1. Directive as last amended by Directive 2002/38/EC; O.J. L128, 15.5.2002, p.41.back

[14] S.I. 2001/1422.back

[15] O.J. L178, 17.7.00, p.1.back

[16] Council Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products; O.J. L24, 27.1.87, p.36.back

[17] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases; O.J. L77, 27.3.96, p.20.back

[18] O.J. L178, 17.7.2000, p.1.back



ISBN 0 11 042643 6


  Prepared 9 August 2002


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