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Gibraltar: E-Commerce

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 were as follows:

The directive implemented the principles of free movement of services and freedom of establishment.

The most contentious issue related to the liability of online service providers. The Directive established 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 clarified 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 defined 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 required 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 required Member States to remove any prohibitions or restrictions on the use of electronic contracts. In addition, it ensured 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 defined commercial communications (such as advertising and direct marketing) and subjected them to transparency requirements.

Implementation. The Directive strengthened mechanisms ensuring that existing EU and national legislation is enforced. This included 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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