The current view amongst governments is that the Internet should be regulated. As a consequence legislation is developing piecemeal and will be disjointed and contradictory.
The European Commission has recently adopted a proposed Directive establishing a legal framework which will guarantee recognition of electronic signatures across the EU. It has recently launched a review of the legislative framework relating to electronic communications.
The proposed Directive on the Legal Aspects of Electronic Commerce which has been adopted by the Commission (August 1999) contains a number of interesting provisions regarding e-commerce businesses.
It states that access to the activity of an information society service provider must not be subject to prior authorisation. Anyone who wants to provide services for remuneration at a distance by electronic means can set up a Web site or e-mail service without requiring a licence, consent or other form of authorisation. However, under the proposed Directive, an information society service provider needs to provide the following information to users:
An extremely important provision in the Directive, concerns the liability of ISPs and telecoms organisations. Under the Directive, such a party will have exemption from liability provided that they:
If the above do not apply, then the ordinary rules of legal liability will.
Andrew Rigby is head of e-commerce and digital law at law firm Tarlo Lyons.
Closer to home, both the UK and the EU are introducing proposed laws regarding e-commerce. The controversial Electronic Communications Bill was finally introduced into the House of Lords on 26 January 2000. It aims to provide a framework for a statutory approvals scheme for businesses that provide cryptography services, such as digital signatures and confidentiality services; legal recognition of electronic signatures (which means that electronic documents will have full force and effect and be recognised in court); and provides a framework for law enforcement agencies to serve notices requiring the disclosure of encryption keys. However, anyone served with such a notice can provide a text version of the encrypted document rather than the key, as disclosing a key may damage a service providers reputation and standing in the eyes of users.
In the EU, there is a plethora of proposed legislation relating to the Internet and e-commerce. I am aware of at least 11 proposals or proposed directives which will impact upon e-commerce and Internet services in the UK. Some of these conflict with national proposals, so the European e-commerce community will need to keep an eye on both domestic and European developments.