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GIBRALTAR THE EU DIRECTIVE ON A LEGAL FRAMEWORK
FOR E-COMMERCE
-
GIBRALTAR THE EU REGULATORY FRAMEWORK FOR ELECTRONIC
COMMUNICATIONS
- GIBRALTAR
LOCAL LEGISLATION
- GIBRALTAR
TELECOMMUNICATIONS
Gibraltar
The EU Directive on a Legal Framework for E-Commerce
As
part of the EU, Gibraltar is of course subject
to the developing body of EU law that impacts
on e-commerce. There is already a fair amount
of this, but the most important part is the Directive
to establish a coherent legal framework for e-commerce
development within the Single Market. The Directive
was finally approved on 4th May 2000. Its key
components are as follows:
The
directive implements the principles of free movement
of services and freedom of establishment.
The
most contentious issue regards the liability of
on-line service providers. The Directive establishes
an exemption from liability for intermediaries
where they play a passive role as a "mere
conduit" of information from third parties
and limits service providers' liability for other
"intermediary" activities such as the
storage of information.
The
Directive also clarifies that the Internal Market
principle of mutual recognition of national laws
and the principle of the country of origin must
be applied to Information Society services.
Place
of establishment. The Directive defines
the place of establishment as the place where
an operator actually pursues an economic activity
through a fixed establishment, irrespective of
where web-sites or servers are situated or where
the operator may have a mailbox.
Transparency.
The Directive requires Member States to oblige
Information Society service providers to make
available to customers and competent authorities
in an easily accessible and permanent form basic
information concerning their activities (name,
address, e-mail address, etc).
On-line
contracts. The Directive requires Member
States to remove any prohibitions or restrictions
on the use of electronic contracts. In addition,
it ensures legal security by imposing certain
information requirements for the conclusion of
electronic contracts in particular in order to
help consumers to avoid technical errors.
Commercial
communications. The Directive defines
commercial communications (such as advertising
and direct marketing) and subjects them to transparency
requirements.
Implementation.
The Directive strengthens mechanisms ensuring
that existing EU and national legislation is enforced.
This includes encouraging the development of codes
of conduct at EU level, stimulating administrative
co-operation between Member States and facilitating
the setting up of effective, alternative cross-border
on-line dispute settlement systems.
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Gibraltar
The EU Regulatory Framework for Electronic Communications
In
July 2000 the Commission published a package of
proposals for a new Regulatory Framework for electronic
communications, with the following main components:
- Proposal
for a directive on a common regulatory framework
for electronic communications networks and services
-
Proposal for a directive on universal service
and users’ rights relating to electronic
communications networks and services
-
Proposal for a directive on access to, and interconnection
of, electronic communications networks and associated
facilities
-
Proposal for a directive concerning the processing
of personal data and the protection of privacy
in the electronic communications sector
-
Proposal for a directive on the authorisation
of electronic communications networks and services
-
Proposal for a regulation on unbundled access
to the local loop
-
Proposal for a decision on a regulatory framework
for radio spectrum policy in the European Community
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Gibraltar
Local Legislation
The
Electronic Commerce Ordinance was passed on March
5, 2001, by the Gibraltar parliament's House of
Assembly, and was viewed as an important step
in Gibraltar's development as an e-commerce hub
to rival its nearest competitors, such as Guernsey,
Malta and the Isle of Man.
The
government described its bill as follows: 'the
legislation is aimed at "facilitating the
use of electronic means for transmitting and storing
information" and affords legal recognition
to transactions effected electronically. It also
provides a framework for the accreditation of
electronic signatures and determines the activities
and liability of service providers.'
The
Bill is divided into four parts:
Part
I Information
Society Services
This
part contains important definitions that are pivotal
to the main body of the legislation. In particular
definitions are provided for “service provider”,
“established service provider”, “information
society services” and “intermediary
service provider”.
Sections
in this part include, Interpretation, General
requirements for service providers, Commercial
Communications, Contracts concluded by electronic
means, Information in relation to and conclusion
of electronic contract. Approved codes of conduct
and prescribed standards.
Part
1 provides for the general requirements of service
providers and various exclusions of liability
in specific circumstances. Section 8 provides
that a service provider is not subject to any
civil or criminal liability in respect of the
information contained in a data message if either
he was not the originator of the message, has
not modified the message in any way, has no actual
knowledge that the information in the message
could give rise to criminal liability or follows
the procedure set out in section 9 which explains
the procedure for dealing with unlawful, defamatory,
etc information.
Power
is also given to approve codes of conduct for
intermediaries and other persons who use electronic
means to provide goods, services or information.
Part
II Issue of Accreditation Certificates
for Electronic Signatures
This
part contains the following sections: Interpretation,
Approved providers of accreditation certificates,
Code of conduct for approved certification service
providers, Grant, refusal and revocation of approval,
Legal effect of electronic signatures, Code-names,
Liability of intermediary service, Code of conduct
for approved certification service providers.
Part
2 establishes the framework for the authorisation
and recognition of certification service providers.
Applications for authorisation are to be made
to the Minister for Trade, Industry and Telecommunications
in the manner prescribed in sections 12 &
13. The recognition of overseas providers or classes
or classes of such providers is dealt with through
notice in the Gazette in the circumstances set
out in section 14. Sub-section (2) provides the
basis upon which recognition is granted. The Minister
will not recognise an overseas provider or class
of such provider, unless it is established either
within the EU and the body giving the authorisation
is designated for that purpose in accordance with
the relevant law of a Member State, or in a territory
and by a body that for the time being are prescribed
for the purposes of this Part.
Section
15 outlines the legal effect of electronic signatures
supported by an accreditation certificate and
Section 17 deals with the civil liability of approved
certificate providers. Subject to certain qualifications,
the section imposes a duty of care on approved
certification providers in favour of any person
who reasonably relies on the accuracy of the accreditation
certificate and provides for an action in damages
in respect of any loss or damage suffered by reason
of a breach of this duty.
Part
III Transactions Effected by Electronic
Means
Sections
19 & 20 deal with the requirements to present
or retain originals and to produce documents.
Section 21 outlines the conditions for retention
of documents etc, in electronic form.
Sections
22 & 23 make provision for various important
issues including the admissibility and evidential
weight of data messages in legal proceedings and
matters relevant to the concluding of contractual
obligations through electronic communication.
Part
IV General
This
part contains a number of general provisions.
Section 24 provides that in the prescribed circumstances
an offence committed by a body corporate may be
attributed to any director, manager, secretary
or similar officer.
Section
25 introduces a general power for the making of
any necessary regulations by the Minister and
section 26 extends the restrictions on service
providers.
The
Electronic Commerce Ordinance forms part of a
wider strategy by the government to transform
Gibraltar into an international e-business centre.
The fact that the Ordinance contains provisions
on electronic signatures and other EU directives
is highly significant. Taken together with the
liberalisation of telecommunications, it should
stand Gibraltar in good stead when it comes to
attracting e-business to the Rock.
In
June, 2005, the Government of Gibraltar issued
a detailed consultation paper, including draft
legislation, for a Bill for a Gambling Ordinance,
which was intended to modernise the elderly gaming
legal framework, and to create a statutory licensing
and regulatory framework, in the light of Gibraltar’s
status as a leading jurisdiction for on-line gaming.
Commenting
on the consultation paper, Chief Minister Peter
Caruana, who has ministerial responsibility for
gaming, observed at the time that: “This
Government has always attached and continues to
attach considerable importance to the protection
of Gibraltar’s jurisdictional reputation,
as well as to providing an operating environment
that protects the corporate reputation of gaming
companies established here."
"This
draft legislation is intended to update the statutory
framework to ensure that Government is able to
continue doing so in the light of the recent growth
in new gaming activities. It is the Government’s
intention to take a Gambling Bill to the House
of Assembly early in the Autumn.”
The
Gambling Act 2005, the full text of which can
be found here,
came into force in October 2006.
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Gibraltar
Telecommunications
In
October 2000, the Gibraltar House of Assembly
passed the Telecommunications Ordinance 2000,
which transposed into Gibraltar law (when read
with the corresponding regulations) the relevant
telecommunications-related EU directives. In 2001
the House finalised another Ordinance which established
the Gibraltar Telecommunications Regulatory Authority;
this Authority, together with the relevant minister,
has a statutory duty to ensure "fair and
effective competition" in the commercial
operation of telecommunications networks and the
provision of telecom services in, from or through
Gibraltar.
The
Telecommunications Ordinance did away with the
Rock's existing telecommunications monopoly. Previously
the local telephony service was operated by Nynex
under a government licence (the government owned
half the company) and the international link,
via the UK by satellite, was run by GibTel which
was a joint venture between the Gibraltar government
and British Telecom plc. In mid-2000, Nynex sold
its 50 per cent share to BT so in practice both
telecommunications companies were 50/50 joint
ventures between BT and the Gibraltar government.
BT's stake was then acquired by Verizon Communications.
GNC
and Gibraltar Telecommunications International
Limited (Gibtel) were brought into common ownership
in 2001, and rebranded as Gibtelecom in 2002.
Gibraltar NYNEX Communications Limited (GNC) changed
its name to Gibtelecom Limited as from 1 October
2003. Gibtelecom was then a joint venture company
owned jointly by Verizon Communications of the
USA and the Government of Gibraltar. The Gibtelecom
Group comprises Gibraltar Nynex Communications
(GNC), Gibraltar Telecommunications International
(Gibtel) and GNC's wholly owned Internet services
subsidiary company, Gibconnect.
In
April 2007, it emerged that Telekom
Slovenije had completed its purchase of Verizon
Communication's 50% shareholding in Gibtelecom.
Commenting
on the move, the Chairman of the Company, and
Minister for Heritage, Culture, Youth, and Sport,
Fabian Vinet stated that: “The sale announcement
brings to an end the speculation concerning Verizon
Communications Inc's exit from Gibraltar as part
of their strategy of rationalising their world
wide investments."
He
continued: “The Government looked forward
to the new partnership with Telekom Slovenije
and the two Companies working together in continuing
to advance technologies and deliver world class
communications in Gibraltar."
The
Telekom Slovenije group is the main telecommunications
provider in Slovenia, serving a population of
2 million people with fixed line and internet
services, together with mobile services through
its subsidiary, Mobitel.
Of
course, hanging over the future of Gibraltar telecommunications
was the Spanish intransigence over freeing up
additional phone numbers. While Gibraltar had
said for some time that this did not affect capacity
as such in terms of bandwidth, and thus might
not matter to an operator whose interest was in
Gibraltar as an international hub, it surely must
have compromised the attractiveness of the Rock
as a base for call centres or other intensive
telecommunications users, at least to an extent.
However,
in September 2006, agreement over a number of
outstanding issues relating to Gibraltar was reached
between the UK's Minister for Europe, Geoff Hoon,
Spanish Foreign Minister Migel Angel Moratinos
and Gibraltar's Chief Minister, Peter Caruana.
Areas
covered by the agreements included the expanded
use of Gibraltar Airport, the full inclusion of
Gibraltar in EU air liberalisation measures, recognition
by Spain of Gibraltar's '350' international dialling
code and unblocking by Spain of Gibraltar mobile
telephone roaming in Spain.
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