E-commerce - standard EU rules

KEY POINTS

Online services covered by the Directive include:

• news services (such as news websites)
• selling (books, financial services, travel services, etc.)
• advertising
• professional services (lawyers, doctors, estate agents)
• entertainment services
• basic intermediary services (internet access, transmission and hosting of information)
• free services funded by advertising, sponsorship, etc.

The Directive establishes the principle that operators of these services are subject to regulation (related to the taking up and pursuit of the services) only in the EU country where they have their registered headquarters – not in the country where the servers, email addresses or postboxes they use are located.

National governments must ensure that operators publish basic information on their activities (name, address, trade register number etc.) in a permanent and easily accessible form.

Advertising

National governments must ensure that advertising follows certain rules:

• it is clearly identifiable as advertising
• the person or company responsible for it is clearly identifiable
• promotional offers, games or competitions are clearly identifiable, and the conditions are easily accessible and presented in clear and simple terms.

Spam

Unrequested e-mail (‘spam’) must also be clearly identifiable. Companies who send out spam emails must regularly consult and respect ‘opt-out registers’, to which people who do not wish to receive such emails can sign up.

Online contracts

In every EU country, electronic contracts must be given equivalent legal status to paper contracts.

These contracts must also spell out the following, in clear and understandable terms:

• the technical steps consumers must follow to conclude the contract
• whether or not the contract will be filed by the service provider and whether consumers can view it at a later stage
• how consumers can identify and correct typing errors before placing their order
• the languages in which the contract can be signed.

Consumers must be able to save and print out contracts and general conditions.

See also Directive 2011/83/EU on consumer rights.

Online orders

These are bound by the following requirements:

• the service provider must confirm receipt of the order without undue delay and electronically (email, other electronic message)
• the order (or receipt confirmation) is considered to have been received when the seller (consumer) is able to access it.

See also Regulation (EU) 910/2014 on electronic identification and trust services.

Enforcing existing legislation

The Directive encourages both self-regulation by operators and co-regulatory efforts with governments. Examples include :

• codes of conduct at EU level
• online systems for settling disputes out of court, especially when the seller and buyer are in different countries.

EU countries must also provide fast, efficient solutions to legal problems in the online environment and ensure penalties are effective, proportionate and dissuasive.

Liability of service providers

Online service providers who act as mere conduit, caching or hosting services providers are not responsible for the information they transmit or host if they fulfil certain conditions. In the case of hosting service providers, they are exempted from liability as long as:

• they do not have actual knowledge of illegal activity or information and,
• if they obtain such knowledge or awareness, they act at once to remove or to disable access to the information

National governments cannot impose any general monitoring obligation on these ‘intermediaries’ over the information they send or store, to look for and prevent illegal activity.