The upcoming The upcoming EU Commission Communication on E- - - PowerPoint PPT Presentation

The upcoming The upcoming EU Commission Communication on E- commerce

Westminster eForum 7 6 2011 7.6.2011 Harrie Temmink Deputy Head of Unit Online and Postal Services Online and Postal Services

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Overview Overview

• Development E-commerce within the
• Development E-commerce within the

EU

• Presentation of the E-Commerce

Directive Directive

• Public consultation e-commerce
• Findings and follow-up consultation

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Development E commerce Development E-commerce

D bl di it l th b t

• Double-digit annual growth but...

– development still rather limited: retail e- 2% EU t t l t il t d (4 5% commerce = < 2% EU total retail trade (4-5% retail sales UK; < 2% in many Member States) b d 9% – cross-border consumer e-commerce < 9%

• Trends:

– digital developments go beyond “traditional” e-commerce – new business models: pick up services, innovative payment systems, etc.

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Objectives E-Commerce Directive (Directive 2000/31/EC ECD) (Directive 2000/31/EC - ECD)

• Remove obstacles to cross-border online

services in the internal market

• Provide legal certainty to business and

citizens citizens

• Offer a flexible, technically neutral and

balanced legal framework

• Enhancing competitiveness of European
• Enhancing competitiveness of European

service providers

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Scope ECD Scope ECD

ECD applies horizontally across all areas of law which

• ECD applies horizontally across all areas of law which

touch on the provision of “information society services” (ISS) – ISS = any service normally provided for remuneration at a distance, by electronic means, at the individual request of services (e.g. online sellers q ( g

• f goods and services, ISPs, search engines, etc.)
• Coordinated field: requirements related to:

The taking up of ISS activities (such as – The taking up of ISS activities (such as qualifications, authorisation or notification) – The pursuit of an ISS activity (behaviour, quality, p y ( q y content including advertising, contracts, liability)

• ECD complements other EU legislation

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Harmonisation ECD Harmonisation ECD

S b t ti l

• Substantive rules:

– cornerstone: the Internal market clause (“country of origin principle) + derogations p p ) g – principle excluding prior authorisation for establishment – general information requirements commercial communications (including for regulated – commercial communications (including for regulated professions) – electronic contracting – liability of internet intermediaries (see below)

• Procedural rules:

– notification mechanisms for rules specifically aimed at – notification mechanisms for rules specifically aimed at information society services and internal market derogations – administrative cooperation Commission/Member States

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Public Consultation E commerce Public Consultation E-commerce

F A t N b 2010

• From August – November 2010
• To sound out stakeholders on a number of e-

commerce issues including: commerce issues including:

– general development e-commerce – application of the ECD pp

• particular emphasis on the liability of intermediary information

society service providers

• derogations (e.g. consumer law, IPR, online pharmacies)

g ( g , , p )

– payment systems, delivery – resolution of online-disputes – any (other) obstacle to cross-border e-commerce

• More than 425 responses soon to be published

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Some findings Some findings

• Most stakeholders emphasise importance ECD

for development cross-border E-Commerce

• No major call for amendment EC but need

– for clarifications of certain provisions of the for clarifications of certain provisions of the ECD, e.g. on intermediary liability and relationship with other EU rules; relationship with other EU rules; – for specific EU initiatives in areas outside the ECD; ECD; – to adapt EU rules to digital innovations

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Main issue: liability of intermediary service providers (Art 12-15 ECD)

• Three categories of intermediate service activities: « mere
• Three categories of intermediate service activities: « mere

conduit »,« caching » and « hosting »

• The online service provider whether for “hosting”, “caching” or “mere

conduit” has conditional limited liability solely for those defined conduit has conditional, limited liability solely for those defined activities

• For hosting, no intermediary liability for information stored at the

request of a recipient of a service (uploader) q p ( p )

• Main conditions:

– the provider does not have actual knowledge of illegal activity or information – the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information

• In other words: the intermediary when “hosting” has an obligation to

y g g act once it receives “actual knowledge” of “illegal activity or information”

• Member States may not impose a general monitoring obligation

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Challenges “liability regime”

F diff “ill l i i i i f i ” (IPR i f i hild

• For different “illegal activities or information” (IPR infringement, child

abuse, terrorisme, slaunder, illegal gambling sites etc.)

• On fundamental freedoms e.g. freedom of expression, privacy,

g p , p y, access to internet...

• Divergent rules and interpretations within EU:

t h t t t i b fit f li bilit ti ? – to what extent can new services benefit from liability exemption? – conditions for application liability exemptions e.g.

• “actual knowledge”

actual knowledge

• “expeditious”
• Procedures to remove or disable access to information (“notice-and-

take-down procedures”)

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Communication E Commerce Communication E-Commerce

• Scheduled for Autumn 2011
• Communication and Staff Working Document...

g

• ... with application report ECD, clarifications and

Action Plan to address obstacles Action Plan to address obstacles

• Holistic approach - issues include payment

systems postal services administrative systems, postal services, administrative cooperation, commercial communications, data protection contract law intellectual property protection, contract law,, intellectual property rights, redress, liability and “notice-and-take- down procedures”

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down procedures ...

Thank you

http://ec europa eu/internal market/e- http://ec.europa.eu/internal_market/e commerce/index_en.htm Harrie.Temmink@ec.europa.eu a e e @ec eu opa eu

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