63 4. 2. 1 Price comparison websites...63 4. 2. 2 Restrictions on advertising...64 4. 2. 3 Unfair commercial practices...
and also the much wider domain of e-commerce transactions in goods and services. 11 Online retailing, online press, search engines, social networks, blogs, media streaming, online gambling and e-health
Estia et Médiamétrie//Netratings pour la FEVAD, Etude de l'impact environnemental de l'achat sur internet et dans le commerce
and sales orders made via websites or systems of electronic data interchange, excluding manually typed e-mails. 5
searching for information, communicating via social networks, etc..Electronic commerce continues to grow substantially, even in the current economic crisis.
66%of internet users made purchases online, while 94%did in South korea. 16 This compares with 57%in the EU. 17 However,
Internet Usage in 2010 Households and Individuals, 14.12.2010, available at: http://epp. eurostat. ec. europa. eu/portal/page/portal/product details/publication?
From a wider perspective, the internet economy has generated 21%of the GDP growth of the last 5 years22
Internet consumption and expenditure already exceeds the share of GDP of agriculture or energy, and its GDP is bigger than the GDP of Canada
. The"Internet stream "(which is wider than ISS because it includes telecoms) has accounted for 25%of net job creation and growth 19 Forrester consulting, May 2009, Study on"A Single Market for Information Society".
PDF. 21 IMRG Experian Hitwise Hot Shops List, May 2011.22 Mckinsey Global Institute, Internet matters:
from Madrid to Moscow, the Internet is going native, September 2011, available at: http://www. bcg. com/documents/file84709. pdf 24 How the Internet is transforming the economy, a series of studies by the Boston Consulting Group commissioned by Google, 2010-2011;
Mckinsey & Company, Impact d'Internet sur l'économie française, March 2011, available at: http://www. economie. gouv. fr/files/rapport-mckinsey-company. pdf 8 in France since 2000.25 Overall, the Internet economy creates 2. 6 jobs for every
job destroyed. 26 The value of the e-commerce market per se is between € 100 and 150 billion
which is similar in the EU and the US. 27 This sector is expected to generate further growth especially as SMES come increasingly to explore the potential of"digital conversion".
from Madrid to Moscow, the Internet is going native, September 2011, available at: http://www. bcg. com/documents/file84709. pdf 27 Forrester consulting produced by DIW-econ. 28 See in particular Article 1 (5) and Recital 12 of the ECD. 9 The term
labelling and liability, classification for the purpose of protecting children37) or conditions for the delivery or the transport of goods sold via the Internet,
"and held that a national prohibition on selling contact lenses via the Internet falls, in principle, within the coordinated field of the ECD.
The country of origin of the web trader can have major consequences, for example, for their right of withdrawal.
If the web trader is established in a non-EEA country, the provisions of the ECD do not apply45
That information may be in the form of an electronic enquiry template through which the recipients of the service can contact the service provider via the internet
"46 The judgment implies that service providers cannot limit themselves to offering an e-mail address accessible for their customers through the website.
Bundesverband der Verbraucherzentralen und Verbraucherverbände Verbraucherzentrale Bundesverband ev v deutsche internet versicherung AG, ECR 2008 I-07841, judgment of 16.10.2008;
in 8%of purchases, the phone number and in 12%of purchases, the e-mail address could not be found. 48 Article 5 (2) obliges web traders,
and regulated professions (Articles 6-8 ECD) Article 6 of the ECD emphasises the need for transparency when advertisements are displayed on the Internet.
These popular services allow an internet user to enter the e-mail address of one or more"friends"who then receive a standard message e g. inviting them to visit a particular website.
Whether a message is"commercial "or not leaves room for divergent interpretations as well. 48 ECC-Net, Online Cross-border Mystery Shopping:
Case C-324/09, L'oréal v ebay, judgment of 12 july 2011, par. 95-96, available at:
which has become the central instrument against spam in the EU (see Chapter 4. 1. 2. 2). Article 13 of the E-Privacy Directive deals with the use of email (including sms, mms),
Technological progress in combination with the increasing use of the Internet by regulated professions may require that these codes be updated. 2. 2. 1. 4 Electronic contracting (Articles 9-11 ECD) Articles 9-11
It would welcome the opportunity to learn more about the experiences of both internet consumers
in order to make sure that businesses adapt their websites. On the other hand, respondents to the e-commerce consultation expressed concerns that the contracting requirements of the ECD may have been legitimate and useful at the time
More administrative cooperation, improved enforcement and greater clarification in the liability regime of internet intermediaries are required to increase its impact. 65 Directive 1999/93/EC of the European parliament and of the Council of 13 december 1999 on a Community
but provided for free on the Internet are even more difficult to assess. Eurostat conducts surveys to measure the extent to
which businesses and households use the Internet, applying such indicators as the percentage of users who bought online in a given period of time.
This lack of information calls for a new framework for measuring the value of the Internet including services provided via the Internet.
together with the E-commerce Expert Group, explore means of improving (public) statistics on electronic commerce and of developing tools to collect more detailed statistics about internet sales volumes. 3. 2 Need
For example, when an authority in Member State A considers that the website of an online trader established in Member State B does not fulfil the transparency requirements of Article 5 of the ECD,
Many cases concern websites which give incomplete information such as failing to indicate all the taxes and costs included in a price.
Other cases concern websites where the trader's identity, location and VAT-numbers were missing,
An updated list is available on the e-commerce website of DG MARKT. 79 National websites contain general 78 Report from the Commission to the European parliament and of the Council on the application of Regulation (EC) No 2006/2004
the CPC-Network enforcement authorities both screen a sample of websites in a given sector for compliance with EU consumer legislation and take appropriate enforcement actions.
(2) develop the exchange of best practices through a common website and (3) develop tools
By way of example, a major video-sharing site reported that more than 24 hours of video are uploaded on its site every minute. 83 Checking all videos that are uploaded from possibly illegal sites would be too heavy a burden to continue providing the service
offering a video-sharing site would probably be too great a commercial risk. Other intermediaries also maintained that the liability exemptions of the E-commerce Directive are essential for their trust in online activities.
"83 Google contribution to the public consultation on the future of electronic commerce in the internal market and the implementation of the Directive on electronic commerce (2000/31/EC), available at:
This could include, for example, sites containing infringements of intellectual property rights (such as trademark or copyright infringements),
but also sites containing child pornography, racist and xenophobic content, defamation, incitements to terrorism or violence in general, illegal gambling offers, illegal pharmaceutical offers, fake banking services (phishing), data protection infringements,
The ECJ ebay vs. L'oréal judgment in case C-324/09 confirms that awareness in the sense of Article 14 can be obtained through a"notice"that is sent to an intermediary and that is sufficiently precise and substantiated.
several new services and activities have emerged that the legislators could not have foreseen, such as video-sharing sites, selling platforms, social networks and peer-2-peer services.
This has resulted in a degree of regulatory 85 Joined cases C-236/08 to C-238/08, Google vs.
whereas others, in particular selling platforms, video sharing sites, social networks and search engines, favoured the inclusion of those activities within the"safe harbour"regime.
in the UK case"TV Links"(R v Rock and Overton), 86 the court without further reasoning ruled that a hyperlinking website was a mere conduit activity that could benefit from the liability exemption
Google Inc.)stated that the Directive was not relevant for the liability of a news search service
Similarly, there is divergent national case law on video-sharing sites: French case law recently confirmed that video-sharing sites can benefit from the liability exemption for hosting activities, for instance in the Magdane vs.
Dailymotion case. 89 The fact that Dailymotion received advertisement revenues was irrelevant in determining whether it was a hosting service provider or not.
however, the Hamburg Court held (in Peterson v Google Inc and others90) that a video sharing site for videos uploaded by third parties cannot benefit 86 Crown Court, Gloucester, 06.02.2010, ref. no.
T20097013, available at: http://merlin. obs. coe. int/iris/2010/4/article26. en. html 87 Brussels Court of First Instance, 15.02.2007, ref. no. 7964;
The court ruled that Youtube could not benefit from a liability exemption for hosting providers as, for the following reasons,
o Youtube provides a specific layout of the website and Youtube's logo is shown in rather big letters above the playing video;
o Youtube provides links to related videos; o Youtube displays commercial video clips and not only content that expresses a personal opinion. o Because of the arrangement of the website the average user cannot tell at first sight that the videos were uploaded by the user and not by Youtube;
o The homepage of Youtube suggests that Youtube exercises editorial control as it suggests certain videos;
o Youtube actively connects advertisements to uploaded videos; o Youtube's Terms and Conditions indicate that Youtube can use the content uploaded on its site as its own content.
In Italy the Civil Court of Rome (RTI and others vs. Youtube and others) 91 also considered that a video-sharing site could not benefit from a liability exemption.
The court stated that Youtube was not to be regarded as a hosting provider but as a"digital broadcaster"and was considered consequently fully responsible for the published content.
Youtube would play an active role and would not limit its activities to providing server space for users to independently upload
and organise content. The case law on online selling platforms is fragmented also: The Paris Commercial Court considered that ebay might not benefit from a liability exemption for its hosting activities. 92 The court considered that the sellers on ebay's website (recipients of ebay's services in terms of the E-commerce Directive) act under the authority
or the control of ebay (the provider of an information society service in terms of the E-commerce Directive), in which case, in accordance with Article 14 (2) of the Directive,
the liability exemption for hosting activities does not apply. The court came to this conclusion
because ebay plays an active role in promoting sales with the objective of increasing profits by,
for instance, appointing sales managers, creating online"boutiques "and offering the option of becoming a"power seller".
"In the L'oréal vs. ebay case93 the Paris Civil Court considered that ebay could offer its clients various services on the same site without losing the right to benefit from a liability exemption.
However, only some of ebay's activities are covered by the definition of hosting of Article 14 of the E-commerce Directive
and eligible for the liability exemption (for instance ebay's selection of"daily deals"could not be covered) 91 Appeal Panel Decision of Civil Court of Rome, IP specialist section, 22.02.2010,
and Court of Rome, 15.12.2009, Section IX, RG n. 54218/08, available at: http://www. scribd. com/doc/38060158/Ordinanza-Tribunale-di-Roma-16-dicembre-2009-RTI-vs-Youtube 92 Paris Commercial Court, 30.06.2008;
available at: http://www. legalis. net/spip. php? page=jurisprudencedecision&id article=2354 93 Paris Civil Court, 13.05.2009;
page=jurisprudencedecision&id article=2639 29 In the ebay vs. Maceo case94, the Paris Civil Court considered that ebay's activities are covered by the definition of hosting.
That ebay receives revenues related to sales carried out on its website was considered irrelevant in this context. In this case, it was considered that ebay was not an editor as it could not be proven that ebay checks the messages that users post on the site.
The fact that ebay has designed the architecture and structure of its site and that it has developed systems for organising
and ranking the content on its site is not sufficient to conclude that it cannot benefit from the hosting liability exemption.
The UK High court in L'oreal vs. ebay95 considered without any further reasoning, that ebay's activities could not be covered by Article 14 of the ECD
because its activities would go far beyond the mere passive storage of information provided by third parties.
EBAY actively organises and participates in the processing and use of this information. The UK High court has decided not yet on the hosting status of ebay as it requested guidance from the European Court of Justice (see the judgement referred to in Chapters 3. 4. 2. 2 and 3. 4. 3. 1). Similarly fragmented
case law exists in relation to blogs discussion fora and social networks. For example: Usenet (a system in which users post messages to a newsgroup) was considered a caching provider by the German Regional Court of Munich96
because information was mirrored and stored on its service for about 30 days. A UK court, however, considered that British telecom operated a hoster in providing Usenet newsgroups (in the case Bunt v Tilley.)
97 The High court of England and Wales (Kaschke v. Gray Hilton) 98 refused to apply the liability exemption for hosting to a blog owner,
even for those parts posted by third parties. The defendant's involvement in the pages exceeded mere storage as he exercised some editorial control on parts of the website.
The Paris Court of First Instance99 refused to recognise a content aggregator displaying on its website links posted by third parties as a hosting provider
because the owner had played an active role in how the links should be classified and presented,
making him a publisher according to the court. The Tribunal de Grande Instance in France (Lafesse vs.
Myspace) 100 held that the social network service Myspace was not offering a hosting activity and therefore 94 Paris Tribunal de Grande Instance (TGI), 26.10.2010;
available at: http://www. legalis. net/spip. php? article3144 95 High court of England and Wales, 22.05.2009,2009 EWHC 1094 (Ch;
available at: http://www. bailii. org/ew/cases/EWHC/Ch/2009/1094. html. 96 Regional Court of Munich, 19.04.2007, ref. no. 7 O 3950/07;
available at: http://medien-internet-undrecht. de/pdf/vt mir dok. 155-2007. pdf. 97 Queen's Bench Division, 10.03.2006,2006 EWHC 407 (QB;
available at: http://www. bailii. org/ew/cases/EWHC/QB/2006/407. html 98 High court of England and Wales, 29.03.2010,2010 EWHC 690 (QB;
The fact that the site allowed the classification and structuring of certain information provided by users did not imply an editing activity.
Moreover, the hosting provider status was seen to follow from the fact that the site did not offer a possibility to check the information on certain websites referred to in users'posts.
The first case concerned Google's paid referencing service""Adwords",and its liability for infringements of trademarks held by The french luxury group LVMH,
104"Adwords",enables an economic operator to display advertising links to its site accompanied by a commercial message that appears on the right hand side of the screen
http://www. ifpi. org/content/library/Pirate-Bay-verdict-English-translation. pdf 104 Joined cases C-236/08 to C-238/08, Google vs.
HTML 31 through Google's search engine. These advertisement links appear whenever a"keyword"that can be reserved by an economic operator corresponds to the word (s) entered as a request in the search engine.
"and that Google had prevented not them from doing so. The french Cour de Cassation asked the ECJ
whether, the referencing service provider (Google) could be held liable for this. The ECJ in this case refers to recital 42 in the preamble of the Directive to conclude that an intermediary service provider"has neither knowledge of nor control over the information
which it stores"(paragraphs 113 and 114) In analysing the Google"Adwords"service, the ECJ notes that"with the help of software it has developed,
Google processes the data entered by advertisers and the resulting display of the ads is made under conditions which Google controls.
Thus Google determines the order of display according to, inter alia, the remuneration paid by the advertisement"(paragraph 116).
However, the ECJ considers that to examine Google's activity in the light of recital 42,
"the role played by Google in the drafting of the commercial message which accompanies the advertisement link
or in the establishment or selection of keywords is relevant"(paragraph 118, underlining added). The second ruling from the ECJ on the liability exemption regime concerns ebay and L'oréal.
In its ruling of 12 july 2011 In case C-324/09 (see also Chapters 3. 4. 2. 1 and 3. 4. 3. 1) the ECJ had been asked, inter alia,
whether the selling platform ebay could be held liable for trademark infringements committed (and possibly to be committed) through its site.
In order to attract new customers to its website, ebay had bought keywords, including trademarks held by L'oréal,
from paid internet referencing services (such as Google's"Adwords")."In parallel to this, L'oréal had identified several infringements of its trademarks through/by the selling platform ebay.
The question posed to the ECJ was to what extent ebay could benefit from the exemption of liability on account of"hosting".
"The ECJ first confirms that an online selling platform in principle offers an information society service
and therefore is covered by the E-commerce Directive. The ECJ argues that, in order to define whether such a service is also an intermediary service in the sense of Article 14 of the Directive,
one should not only look at the text of the Directive, but also at the intention of the legislator:"(
it is essential that the provider be an intermediary provider within the meaning intended by the legislature in the context of Section 4 of Chapter II of that directive (see Google France and Google, paragraph 112)".
or control over, those data (Google France and Google, paragraphs 114 and 120)"."Paragraph 113"(.
and provides general information to its customers cannot have the effect of denying it the exemptions from liability provided for by Directive 2000/31 (see, by analogy, Google France and Google, paragraph 116).
"Paragraphs 115 and 116) The ECJ suggested that Ebay would potentially in some instances not have such a neutral position:"
"In some cases, ebay also provides assistance intended to optimise or promote certain offers for sale"(paragraph 114). 3. 4. 3 The conditions in Article 12 to 14 ECD Articles 12 to 14 of the ECD contain a number of specific material
for instance, has a"general awareness"that its site hosts illegal information. The first interpretation is defended commonly by civil organisations in defence of, in particular the freedom of speech,
or activities on their sites and that this constitutes actual knowledge. ISPS that advertise the possibility of downloading music
because the website of the third party was almost identical to the website of the political party,
if internet users confused the two websites. 105 Also, defamation has been considered manifestly illegal in some instances. 106 By contrast,
A host of a website containing hyperlinks leading to to child pornography was attributed knowledge of these illegal hyperlinks
idpdf=F-20040203-3 36 Youtube LLC. 117 Some stakeholders, in particular intermediaries, therefore suggested that the Commission should propose a so-called"Good samaritan clause".
L'oréal vs. ebay (see also Chapters 3. 4. 2. 1 and 3. 4. 2. 2) the referring court referred the question of
=37 whether ebay was aware of facts and circumstances from which the illegal activity was apparent:
whether ebay provides such assistance but it already indicated that"in some cases"(without further specification) ebay does play such an active role.
The ECJ does not elaborate explicitly on how a hosting service provider can obtain"actual knowledge".
Google case. The AG claims to"have some difficulties"with the conclusion of the Court that recital 42 would contain conditions for all intermediary services for benefiting from a liability exemption
For instance, traffic management by internet providers (see Chapter 4. 3. 4 on net neutrality) could, according to some stakeholders, be interpreted as selecting
"and the ebay vs L'oréal case. 40 Apart from the E-commerce Directive, there are other pieces of European legislation relevant for NTD procedures.
sexual exploitation of children and child pornography126 obliges Member States to take the necessary measures to obtain the blocking of access by internet users in their territory
and the removal of internet pages containing or disseminating child pornography. Furthermore, fundamental rights are relevant
available at http://ec. europa. eu/internal market/copyright/docs/ipr strategy/COM 2011 287 EN. pdf. The Communication announces a review of the Enforcement Directive that should in particular find ways to combat infringements of IPR via the internet more effectively"by"tackling the infringements
128 In December 2009 several French internet platforms and right holders agreed on a charter for the fight against the sale of counterfeit goods on the Internet. 129 An extension of this charter is currently being discussed. 130 Recently,
In 2009 the Commission brokered an agreement on a code between a large group of social networks with the objective of ensuring the safety of minors online. 131 On 4 may 2011 a representative group of right holders and internet platforms
The Mou sets out a series of joint principles including effective and balanced measures to prevent offers of counterfeit goods from being listed on internet platforms. 132 A similar EU level dialogue on online piracy
http://www. nederlandtegenterrorisme. nl/fileadmin/user upload/Bedrijven/PDF S/Gedragscode notice and Take down tcm91-293746. pdf 129 See Charte de lutte contre la contrefaçon sur Internet:
http://ec. europa. eu/information society/activities/social networking/docs/sn principles. pdf 132 See: http://ec. europa. eu/internal market/iprenforcement/docs/memorandum 04052011 en. pdf 133 The website www. chillingeffects. org, an initiative from several US law faculties and some NGOS
, reports on cases of blocked legal content. 42 minors, despite their limited liability and responsibility under the E-commerce-Directive.
the review of such decisions, the tracking of its source and identification of the web hosting provider and, in particular, the notification to the competent authorities.
The German Access Impediment Act obliges the Federal office of Criminal Investigation to compile a black list containing child pornography websites, on the basis
of which ISPS have to block access to those websites; The Hungarian Act on certain aspects of e-commerce
they can be forced to block access to copyright-infringing websites; The UK Terrorism act provides a specific procedure for terrorism-related information;
or blogs) applies to several categories of illegal content; The Italian law on child pornography through the internet establishes a blocking mechanism for child abuse content;
The french Law on the performance of internal security also puts in place a mechanism for blocking child pornography. 3. 4. 4. 3 Persisting issues According to a majority of stakeholders that responded to the public consultation,
Certain stakeholders also consider it socially undesirable that the takedown of manifestly illegal information (for instance child pornography) is sometimes less fast than the takedown of illegal information where there is a financial gain involved in the takedown (for instance phishing websites.
Some intermediaries specified that certain complainants refuse to use the NTD procedure proposed by a particular site
A report conducted by Cambridge University136 demonstrates that the average time before takedown of child pornography sites is much longer than the time before takedown of phishing sites. d) Liability for providing wrongful notices
whereas others do not. e) Private operators assessing the legality of information Many respondents to the public consultation on e-commerce expressed concerns that private operators judging the legality of information on the Internet represented"private judges".
or blocking would not be a solution to the existence of illegal information on the Internet.
but in the form of offering attractive, accessible and legal services on the Internet. Moreover, some intermediaries, in particular video-sharing sites, argue that right holders should favour"monetisation"over takedown."
"Monetisation"involves receiving a share of advertisement revenues that can be attributed to content to which they hold the rights. 3. 4. 4. 4 An EU initiative on procedures for notifying
and acting on illegal online content The cross-border nature of the Internet, the existing fragmentation of NTD systems,
Contribute to combating illegality on the Internet. Ensure the transparency, effectiveness, proportionality and fundamental rights compliance of NTD procedures.
Stakeholders to be consulted include Member States, internet intermediaries, right holders, child protection organisations, civil rights organisations and citizens in general.
and includes also"blocking"of websites. 47 procedures; the consequences of submitting wrong notices; the instruments for removing or disabling access to illegal content, etc.
The provision is silent about injunctions. 48 In the L'oréal vs. ebay case138 the European Court of Justice accepts, in principle, the compatibility of effective and proportionate injunctions against providers such as operators of online marketplaces.
138 Case C-324/09, L'oréal v ebay, judgment of 12 july 2011, par. 141, available at http://curia. europa. eu/juris/recherche. jsf?
A similar case, on the compatibility of such a filtering obligation for a social network, is currently pending before the ECJ. 140 3. 4. 5. 2 National law Article 15 has been transposed in different ways across the EU. Some Member States did not consider it necessary to introduce a prohibition of general monitoring in their legislative framework
In a case concerning Rolex, Ricardo and ebay, two online selling platforms, the Bundesgerichtshof142 (the German Federal Supreme court) considered that an injunction against the two intermediaries forcing them to apply filtering software would not be infringing Article 15.
In France, in a ruling of 13 may 2009 in a case concerning ebay and L'oreal
143 the Court refused to oblige ebay to implement filtering software for its"health and beauty section"to prevent infringements of L'oréal's trademark.
The Court considered that filtering software was not necessary as ebay had made the required efforts to prevent trademark infringements,
Video hosting sites have, for instance, voluntarily and in cooperation with right holders, developed so-called fingerprinting techniques that identify the unique hash code of a file.
and to identify a user's real location and IP ADDRESS. A variety of stakeholders raised concerns about significant traffic speed reductions as a result of certain filtering techniques.
The fact that there is interoperability between these techniques for different video sharing sites would be a particular burden according to some right holders.
child sex abuse images that circulate on the internet and as discussed above in the area of video
especially for retail websites. 145 See in particular the Commission Communication"A Digital Agenda for Europe",COM (2010) 245 of 19.5.2010, available at:
Millions of citizens publish photos, blogs and text about families, friends and colleagues on social networks such as Netlog, Linkedin and Facebook,
Information is collected on an individual's web-browsing behavior, such as the pages they have visited or the searches they have made,
a user may often visit sport sites and thus be categorised in the"sports fan"segment.
smartphones or other devices connected to the Internet users should be able to know and control who is using their information,
makes illegal under Article 13 (4) all commercial e-mails advertising websites without disclosing the identity of the sender on
and their customers by taking legal action against spammers. 4. 1. 2. 3 Cookies and the eprivacy Directive Cookies are hidden information exchanged between an internet user and a web server,
almost 80%of online service providers interviewed are collecting data from cookies. 161 Business representatives indicated in the public consultation that today's internet economy
and in particular the transformation of the Internet from web 1. 0 to web 2. 0 have been possible thanks to cookies.
and informed indication of the user's wishes, including by ticking a box when visiting an internet website".
"Access to specific website content may still be made conditional on the well-informed acceptance of cookies or similar device,
coupled with a website providing the user with information about how to switch off behaviourally targeted display ads from the company that the user signed up to.
The development of the Internet and the increased supply of online gambling services are posing challenges for the co-existence of differing regulatory models,
and some 172 See the DG's website: http://ec. europa. eu/internal market/services/gambling en. htm 61 Member States prohibit the online sale of"over-the-counter"(OTC) medicines or medical devices.
but an almost total absence of legal internet sales in some eastern European Member States.
This does not always stop them from buying medicines online, with the result that they, often unconsciously, buy from illegal sites, with all the attendant health risks.
The Internet should not replace necessary face-to-face consultations with appropriate medical practitioners but internet services can provide quick and easy access to medicines in particular for chronically ill people, less mobile citizens, the elderly, working people or inhabitants of rural areas.
Second, medicines sold online can also be cheaper. In the case of non-reimbursed OTC medicines it is obvious that patients benefit from such lower prices directly.
the Internet guarantees anonymity to users, allowing people to access advice or medicines that they may
In the absence of developed legal markets, the Internet has, however, become dominated by illegal offers to
for additional information requirements and the creation of an obligatory"trust mark"("common logo")for websites legally offering medicinal products on the Internet.
which medicines are sold over the Internet, within the limits of the EU Treaty. Following the the adoption of the Falsified Medicines Directive,
price comparison websites, restrictions on advertising, and unfair commercial practices should be tackled. 4. 2. 1 Price comparison websites As outlined in the Staff Working Document"Bringing e-commerce benefits to consumers"accompanying the Communication on e-commerce,
consumers are missing out from the full benefits of e-commerce, that is lower prices and a wider choice,
In 2010, eight in ten online shoppers used a price comparison website to research their purchases,
yet as was shown in a recent Mystery Shopping study of price comparison websites, only a low proportion of price comparison websites (17%)give customers the option of offers available from other Member States.
In addition, just 14%of tested price comparison websites are available in more than one language179. As a result, consumers often do not find out about cross-border offers.
The performance of the tested price comparison websites was substandard in many aspects when it came to the provision of information.
Only one in two price comparison websites provided the full details of their business address. The situation with online retailers was somewhat better,
with 67%of tested retailers providing a full business address. In 60%of tested price comparison websites, it was not clear
whether retailers had to pay to have listed their products and most price comparison websites did not display the correct final price.
Information provision on added costs was rather poor. Just 19%of price comparison websites showed prices including VAT and other taxes,
and delivery charges. Another worrying finding was that in more than half of trials, the cheapest price was not the first price displayed.
or service providers to create their own website in the hope that clients will find their business
and make a direct order online through their website. Second online businesses such as newspapers, video sharing sites,
and commercial blogs offer content and services to consumers for free, earning revenue by selling advertising space on their sites to businesses that intend to reach those customers.
Third, online enterprises such as travel planning sites sell both advertising space and their (own) services directly to consumers.
In all those business models, the use of search engines has become widespread. Customers rely increasingly on search engines to find their preferred product or service.
which a consumer has the legal right to return a product purchased on the internet, by phone or post without paying a penalty.
In this context, Article 24 (1) of the Services Directive requires Member States to remove total bans in so far as such bans concern a particular form of advertising such as advertising over the Internet. 184 It has also been reported that contractual prohibitions (e g. on data portability) complicate multi-platform advertising campaigns.
the application of data and privacy protection rules on cookies and behavioural targeting has sometimes been perceived as excessive by internet companies.
The question has been raised to what extent the commercial communications rules of the Audiovisual Media Services Directive also apply to new services such as the online social networks. 183 See recently for example the Ker-Optika judgment,
thus a crucial instrument for guaranteeing that any commercial information available on websites is fair
the web page www. isitfair. eu contains practical information for consumers on how to check if they have fallen victim to an unfair commercial practice,
joint surveillance actions("sweeps")have been carried out on the basis of UCP provisions (websites selling airlines tickets, online mobile phone services, websites selling consumer electronic goods;
the online information tool for internet users and consumers explaining the digital rights and obligations provided for by EU law in the form of frequently asked questions
Article 20 (2) of the Services Directive There is a growing tendency for businesses to use the Internet to foster the sales of their goods
and services by exploiting the global availability of their websites. However, most online traders still serve a very limited number of Member States.
Online buyers are confronted regularly with refusals of online web shops to deliver if they are not residing in the same Member State,
The most frequent cases concern web shops that either refuse to sell items or services to residents 187 http://ec. europa. eu/information society/eyouguide/navigation/index en. htm 188 European commission
It is not unusual that websites automatically route the consumer to another website which corresponds to their country of residence,
enabling the web shop to maintain different price policies based on national borders. Consumer transactions may also fail at the stage of revealing credit card details due to the address of the owner.
textiles, bikes, DIY goods, music downloads, rental cars, mobile phone contracts etc. Article 20 (2) of the Services Directive189 prohibits discrimination on grounds of nationality or residence in B2c and B2b relationships.
Globally operating internet companies therefore usually choose to have their country specific sites with a TLD of the country in question.
which the Internet should be neutral, open and easily accessible. This principle is not always compatible with the practice of"traffic management"generally used by internet providers.
A recent Commission consultation on net neutrality and the open Internet192, shows a consensus of opinion on the necessity of having a certain degree of traffic management:
however, also be misused by internet providers to prevent access to information society services, in particular when they are competing with the services of the internet provider (such as telephony or television services).
This can be done either by blocking certain services outright or by making it very unattractive to access them,
The Commission Communication on the open Internet and net neutrality in Europe193 reports several instances of blocking of legal services (in particular of Voice-over-Internet-Protocol services by mobile internet providers),
and the Committee of Regions, The open internet and net neutrality in Europe, COM (2011) 222 final, 19.4.2011;
and the choice consumers deserve. 4. 3. 5 Intellectual property rights The development of the Internet has meant the birth of a trade in goods
cultural and sporting events can be viewed on the Internet without having to go to a theatre or sports venue.
Historically, music was the first digital content available on the Internet. Thanks to further technological development including the growth of broadband networks,
the Commission will pursue its efforts exploring to what extent the sale of counterfeit goods over the Internet can be reduced through voluntary measures,
involving the stakeholders most concerned by this phenomenon (right holders and internet platforms). In this context, a Memorandum of Understanding was signed by major internet platforms and right holders on 4 may 2011.203 Over the coming twelve months,
these stakeholders will review and measure progress under the auspices of the Commission services. The Commission is also working on a review of the IPR Enforcement Directive 2004/48/EC,
204 inter alia identifying ways to create a framework allowing more effective combating of IPR infringements via the Internet. 7. Journalists are authors
and publishers have over the use of their works on the Internet, in particular in view of the rise of news aggregation services.
whether this be on demand, Internet or satellite. The inadequacy of rules governing the provision of digital cultural goods,
and internet sectors to ensure that market players comply with EU competition law. For instance, in spring 2010 the Commission launched two investigations into business practices by Apple involving the iphone.
on 20 november 2010 the Commission started investigations into Google following allegations of abuse of market dominance in the areas of online search,
Commission probes allegations of antitrust violations by Google, IP/10/1624,30. 1..2010, available at:
"For instance, a major application store would require from online press providers that their applications include an option to conclude commercial transactions within the application (instead of providing a link to a website where the commercial transaction is concluded),
by prohibiting anticompetitive restrictions to cross-border internet marketing and sales. 215 However, certain http://europa. eu/rapid/pressreleasesaction. do?
B&w Loudspeakers, 2002) approved selective distribution networks on the condition that the company removed clauses prohibiting authorised distributors from selling over the Internet.
See also the recent judgement of the ECJ in a case on the question whether an absolute refusal of a cosmetic and personal care company to allow its French distributors to sell its products on the Internet is compatible with the (now) Article 101 TFEU and the Block
and require quality standards for the use of an internet site to sell their products.
Since the Internet allows distributors to reach different customers and different territories, certain restrictions on the use of the Internet by distributors are dealt with as hardcore restrictions.
In principle, every distributor must be allowed to use the Internet to sell products. For example, any obligation on distributors to automatically reroute customers located outside their territory,
or to terminate consumers'transactions over the Internet if their credit card data reveal an address that is not within the distributor's territory,
are hardcore restrictions. Similarly any obligation that dissuades distributors from using the Internet, such as a limit to the proportion of overall sales which a distributor can make over the Internet,
or the requirement that a distributor pays a higher purchase price for units sold online than the same considered that such a restriction infringes Article 101 (1) TFEU as it has an anti-competitive object,
and cannot benefit from the Vertical Restraints Block Exemption Regulation. 216 Commission Regulation (EU) No. 330/2010 of 20 april 2010 on the application of Article 101 (3) of the Treaty on the Functioning
and the Enterprise Europe Network226 confirm that businesses with an interest in 223 On 16 november 2011 the Commission hosted a seminar to discuss consumer problems with digital products, such as e-mail, social networks, music, films, e
as they have to adapt their website to the legal requirements of every Member State they direct their activity to.
when a website contains activities directed to consumers in other Member States (see Chapter 4. 7. 4). The Common European Sales Law would contribute to the solution for the problems posed by the diversity of cross-border situations.
in the way sites can be referenced by search engines or how technologies can be slowed down or blocked.
as outlined in the recent Communication on Internet network neutrality. In the first half of 2012, it will report on its analysis of the implementation of the Framework Directive"telecom"(2002/21/EC) 233
as amended by Directive 2009/140/EC234 to ensure that new rules guarantee an open Internet (see also Chapter 4. 3. 4). 4. 4. 3 E-signatures,
including the Internet and mobile communications. As a first step a public consultation on e-identification
internet and mobile payments"."The Green Paper aims to assess a number of specific factors which seem to be the root causes for many of the problems encountered by consumers and merchants in the field of e-commerce today.
internet and mobile payments and the Green Paper provides the basis for a public consultation as to
internet and mobile payments. 244 4. 5. 2 Electronic invoicing Invoicing forms another part of the e-commerce process chain
Internet usage in 2009-Households and Individuals, available at: http://epp. eurostat. ec. europa. eu/portal/page/portal/product details/publication?
Internet usage in 2009-Households and Individuals, available at: http://epp. eurostat. ec. europa. eu/portal/page/portal/product details/publication?
because the Internet continues to be perceived as a risk area, generating potential disputes which cannot be solved easily partly because of the nature of this virtual exchange zone.
traders and ADR schemes communicate during the whole procedure through a web-based system in order to resolve disputes.
taking place over the Internet. Its partners, which include universities, are specialized in online dispute resolution.
Internet purchases continue to be the main source of consumer crossborder complaints making up 56%of all complaints addressed to the ECC-Net in 2010 (44,232 complaints.
or the websites of 41%of the courts visited. Consumers found it difficult to fill in the forms on their own
when internet actors are resident in two different Member States or even outside the EU. Determining the competent court
I with respect to services offered on the Internet. In the cases of Hotel Alpenhof and Peter Pammer302, the basic question at issue was whether the fact that the website of a business
on the basis of which a consumer entered into a contract, can be viewed on the Internet is sufficient to justify the conclusion that an activity is being directed"within the meaning of Article 15 (1)( c) of the Brussels I Regulation.
In the Hotel Alpenhof case, the consumer, a German resident, reserved a number of rooms, for a period of a week, in Hotel Alpenhof, in Austria.
The reservation was made by email, the address being provided on the hotel's website which the consumer had viewed.
The consumer found fault with the hotel's services and left without paying his bill.
He booked a voyage with the German company Reederei Karl Schlüter through a German travel agency specialising in the internet sale of voyages by freighter.
The European Court of Justice ruled that mere use of a website by a trader
or when it pays a search engine operator for an internet referencing service in order to facilitate access to its site by consumers domiciled in those various Member States.
Nevertheless, other less obvious items of evidence, if combined with one another, are also capable of demonstrating the existence of an activity"directed to"the Member State of the consumer's domicile.
Likewise, if the website permits consumers to use a language or a currency other than that generally used in the trader's Member State,
On the other hand, the mere mentioning on a website of the trader's email address or geographical address,
whether it is apparent from the traders'websites and overall activity that they were envisaging doing business with Austrian consumers (Case C-585/08)
http://download. intel. com/pressroom/pdf/cdsvsdownloadsrelease. pdf 312 Marcelo Velásquez, A comparative study of the environmental impact of the online and offline movie rental business
especially as regards crossborder distance sales. 4. 8. 4 International dimension316 E-commerce and the Internet have an inherently global dimension,
l'achat sur internet et dans le commerce traditionnel, June 2009; available at: http://www. fevad. com/uploads/files/Prez/fevad estia 110609. pdf 314 Weber et al.
The Commission has also been involved in the discussions within the Internet Governance Forum (IGF) on issues such as the sustainability and security of the Internet.
European Neighbourhood Policy. 109 Commission services will further intensify the bilateral and multilateral discussions on ecommerce and other online services through global cooperation in particular in the context of the WTO/GATS, OECD and the Internet Governance
(MNE (2003) 50827) http://www. vvc. gov. lv/export/sites/default/LV/publikacijas/civillikums. pdf 5. Informacijas sabiedribas pakalpojumu likums Legal act:
(MNE (2006) 58519) http://www. legi-internet. ro/legislatie-itc/comert-electronic/legea-comertuluielectronic/legea-nr-121-din-4-mai
(MNE (2006) 58517) http://www. legi-internet. ro/index. php? id=22 132 3. Lege privind unele masuri pentru asigurarea tranparentei în exercitarea demnitatilor publice, a functiilor publice si în mediul
domain names, internet protocol addresses and destination addresses of the website-subject-matter of injury and description of facts substantiating infringement-data necessary for identification of infringement-name, address or head office,
including file name-copyright statement-date and time-IP ADDRESS, port number, website, protocol, or Unique infringement The ISP must be notified of the decision of the Section
-the law of 12 may 2010 contains in its Article 61 a basis for filtering of illegal gambling sites;
-the decree of 20 june 2009 lays down the basis for a public website for reporting cybercrime (notably child abuse content, financial crime and racist content
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