Law Society Submission on draft proposals to give effect to
Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce in the Internal Market

We note that the form of the regulations transposes much of Council Directive 2000/31/EC directly.  We would however seek to make the following comments:-

Regulation 5

We note that Article 1(4) of the Directive is open to two possible interpretations. The more purposive interpretation of the Directive’s language is to the effect that private international law rules as such may remain untouched, but that their results must be measured against the Directive. This is in conformity with Recital 23 of the Directive. The Committee would therefore recommend that more unambiguous language be used to transpose this meaning of Article 1(4) of the Directive.  Our view is that there is little to be gained by repeating the ambiguous drafting which is contained in the Directive.

Regulation 8.4

We note that this regulation, which is based on Article 3(4)(a) of the Directive, does not fully cover all the points set out in Article 3(4)(a).  There is no derogation in respect of public policy, and, in particular, violations of human dignity concerning individual persons. We would be of the view that the regulation should include a more broadly defined public policy derogation to cover issues such as criminal libel.

We note that Article 3(4)(a)(ii) provides that a measure taken against a given information society service which prejudices the objectives in Article 3(4)(a)(i) applies where the measures do prejudice the objective or where they present a serious and grave risk of prejudice to those objectives.  It does not appear that the State has any discretion in this regard and we would recommend that the issue of a “serious and grave risk of prejudice” be added to Regulation 8(4)(b).

In respect of Regulation 8(5), we note that this seeks to transpose Article 3(4)(b) of the Directive.  However, the Committee further notes that the current draft of sub-section (a) does not provide that Ireland may exercise the power provided by Regulation 8(5) in circumstances where the member state concerned has taken some action but such action is inadequate.  We recommend that the provisions of Article 3(4)(b) of the Directive be directly transposed so as to include a situation where some action is taken by a  member state, but where such action is inadequate.

In the explanatory note to Regulation 8(6), the question is being considered whether issues under Regulation 8(6) and Regulation 8(4) could include measures taken by a State body.  We consider that certain defined State bodies such as the Director of Consumer Affairs, the Director of Telecommunication Regulation and the Data Protection Commissioner should be included as parties who may introduce “measures” under the Regulations.  These State bodies have been given certain enforcement powers under the Regulations.  This being the case, it is likely that they will be the State organs who need to take the measures referred to in Regulation 8(4). We would recommend that there should be drafting reflecting the involvement of these State bodies in Regulation 8(6) and 8(4).

We note that Regulation 8(7) seeks to implement Article 3(6) of the Directive.  Article 3(6) provides that the Commission may ask the member state in question to refrain from taking any proposed measures or urgently to put an end to the measures in question.  It does not provide any sanction in the event that a member state refuses to comply with such request. Neither does it provide that the member state must comply with the provision.

We are not clear as to whether the approach taken by the draft Regulations, which provide that the views of the Commission shall be given utmost weight by the Minister, is correct.  We acknowledge that the article in the Directive is somewhat ambiguous in this regard.

Regulation 10

We note that Regulation 10(1)(d) deals with unsolicited commercial communication and provides for an opt-out register.  This item was not included in Article 5 of the Directive.  However, we approve of the addition of this provision as it further assists the aims of Article 7, in providing for protection for individuals against unsolicited commercial communications.

Regulation 11

We note that Regulation 11 seeks to directly transpose Article 6 of the Directive, with the addition of Regulation 11(1)(c) dealing with unsolicited commercial communications.  We welcome the addition, for the same reasons as set out in comments on Regulation 10.

Regulation 12

Regulation 12 seeks to transpose Article 7 of the Directive.  As a general point, we support the proposed Regulation 12.  The Regulation in fact goes much further than the Directive by requiring internet service providers to establish their own opt-out registers.  The Directive does not require this, but merely requires internet service providers to consult regularly and respect the opt-out registers.

We note the comments made in the Explanatory Note accompanying Regulation 12(2) and (3) and Regulation 12(4).  Regulation 12(2) to (4) should be included in the final draft Regulations, in the interests of clarity, so as to avoid possible confusion caused by relying on implicit requirements pursuant to the Data Protection Act, 1988.

Regulation 16

There may be an ambiguity in Regulation 16(1), wherein the Regulation provides that except where “contracts are concluded by electronic means, it shall be a requirement that, except when otherwise agreed by parties who are not consumers, where the recipient of the service places his orders with technological means, the following principles shall apply…”.  The term “technological means” is not defined in either the Regulations or the Directive.  In addition, there is a comment in the Explanatory Note to the effect that Article 11.1 requires that contracts concluded by electronic means must be acknowledged by electronic means.  Does the term “technological means” have a different meaning to the term “electronic means”?

The wording is transposed directly from the Directive.  However, this may result in uncertainty and we would recommend that either a definition of “technological means” be inserted or the term be deemed to have the same meaning as “electronic means”.

Regulation 20

We are of the view that Article 15.1 should be directly transposed.  It is true that it is a negative provision.  However, it is important that internet service providers are provided with the protection under national law that Article 15 provides them.

We would recommend that any exception to the provisions of Article 15 be limited in nature to situations where national security or prevention of crime require such monitoring.  A more detailed duty to monitor may dissuade internet service providers from otherwise establishing themselves in Ireland.

Regulation 23

The full range of sanctions specified in Section 8 of the Electronic Commerce Act, 2000 should be provided for in the draft Regulations.  It is important that the provisions of the Electronic Commerce Directive are enforced and that there are reasonable sanctions for breach of the Directive.  In addition, there is a certain benefit in having uniformity of sanctions.

Articles Not Being Transposed

We note that it is not proposed to transpose Articles 16, 17, 18, 21 and 22.  We support this position.