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 1

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 2

Development E-commerce Development E commerce • Double-digit annual growth but... D bl di it l th b t – development still rather limited: retail e- commerce = < 2% EU total retail trade (4-5% 2% EU t t l t il t d (4 5% retail sales UK; < 2% in many Member States) – cross-border consumer e-commerce < 9% b d 9% • Trends: – digital developments go beyond “traditional” e-commerce – new business models: pick up services, innovative payment systems, etc. 3

Objectives E-Commerce Directive (Directive 2000/31/EC (Directive 2000/31/EC - ECD) 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 4

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 of 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 5

Harmonisation ECD Harmonisation ECD • Substantive rules: S b t ti l – 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 6

Public Consultation E commerce Public Consultation E-commerce • From August – November 2010 F A t N b 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 7

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 8

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 9

Challenges “liability regime” • For different “illegal activities or information” (IPR infringement, child F diff “ill l i i i i f i ” (IPR i f i hild 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: – to what extent can new services benefit from liability exemption? t h t t t i b fit f li bilit ti ? – 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”) 10

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 protection, contract law,, intellectual property intellectual property rights, redress, liability and “notice-and-take- down procedures” down procedures ... 11

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 12