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The Electronic Commerce (EC Directive) Regulations 2002

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Explanatory Note

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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)(1) (“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.

(1)

O.J. L178, 17.7.2000, p.1.

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