Key Provisions
Spam
Liability of Internet Service Providers
Tánaiste and Minister for Enterprise, Trade and Employment Mary Harney recently signed regulations to bring into effect provisions of the EU Electronic Commerce Directive. Many provisions of the directive had already come into force with the Electronic Commerce Act 2000. The new regulations took effect on February 23 2003.
In announcing the new regulations, Harney commented:
"The entry into force of these regulations is an important element in completing the European single market in the provision of online services. Important obligations are provided in respect of service providers as well as essential protection for consumers of such services."
The new regulations provide for the free movement of online information society services within the European Economic Area.
The basic provision of the regulations is that service providers which comply with the rules and regulations of their own member state do not have to comply with the rules and regulations for that service laid down by any other member state to which they might be supplying the service.
One important provision requires people sending unsolicited commercial emails to ensure that these are clearly identifiable as such by the recipient.
Harney confirmed that her department is in discussions with the Irish Direct Marketing Association regarding the use by its members of the letters 'ADV' (advertisement) or 'UCE' in the subject line of an unsolicited email issued to persons with whom they have never previously had a commercial relationship. The data protection commissioner will be responsible for prosecuting offences under this part of the regulation.
Liability of Internet Service Providers
The regulations create an exemption for internet service providers (ISPs) for liability for information transmitted by them though a communications network subject to certain conditions. One of these conditions is that the ISP does not modify the information contained in the transmission. This is in line with the E-commerce Directive, which always made it clear that it was desirable to exclude ISP liability where their activities were merely technical and passive in nature (eg, where 'caching' occurs).
For further information on this topic please contact David Sanfey at A & L Goodbody by telephone (+353 1 649 2000) or by fax (+353 1 649 2649) or by email ([email protected]). The A & L Goodbody website can be accessed at www.algoodbody.ie.