European Commission, Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, O.J. L. 178, at 1-16 (July 17, 2000) (full-text) ("E-Commerce Directive").
The Directive aims to remove barriers to the establishment of providers of information society services and to the cross-border provision of online services in the internal market, therefore giving both to businesses and citizens legal certainty.
Technologically neutral, it covers a broad field: not only electronic commerce (businesses-to-business and business-to-consumer) in the strictest sense (including online pharmacies), but also online newspapers, online financial services, services of regulated professions, etc. Online gambling, however, is excluded.
The Directive has five key provisions:
- The internal market clause (Article 3) which, although subject to derogations, provides the legal certainty which is essential to the development of cross-border online services;
- Requirements aimed at facilitating the development of providers of information society services, boosting confidence and strengthening legal security (Article 4): namely the prohibition of prior authorisations, obligations to provide information and ensure transparency with a view to ensure consumer confidence as well as the provision of a framework for commercial communications (Articles 6 to 8). It abolishes the prohibition of commercial communication for the regulated professions, enabling them to open internet sites, and leaves it to the professional associations to regulate such new practices in their codes of conduct.
- The regulatory framework for electronic contracts (Articles 9 to 11), including the harmonization of the conditions necessary for the conclusion of such contracts (e.g., the obligation for the service provider to acknowledge the receipt of the customer/user without undue delay and by electronic means).
- The regulation of the exemptions of the liability of intermediaries (Section 4, Articles 12 to 15) with a view to ensuring, on the one hand, the provision of basic intermediary services guaranteeing the free movement of information on the network and, on the other, a legal framework enabling the development of the internet and electronic commerce.
- Administrative cooperation (Articles 19 and 3.4), both between Member States and between the Member States and the European Commission, with a view to ensuring the proper implementation of the Directive, through mutual assistance and the setting up of contact points. It also encourages Member States to inform the European Commission of important administrative and legal decisions taken on their territory regarding disputes relating to information society services and of practices, usages and customs relating to electronic commerce.
|“||Court cases have shown that the eCommerce Directive's special liability regime for online intermediaries is too focused on Web 1.0 services, leaving an entire list of new service models — particularly the most promising Web 2.0 and cloud computing services — unprotected. In addition, no online intermediary is protected against injunctions, which may lead to costly lawsuits, public exposure and technical implementation costs. Furthermore, no harmonised notice-and-takedown procedure exists, resulting in legal uncertainty for online intermediaries and practical difficulties for rightholders to take down illegal material.||”|