EUROPEAN COMMISSION Brussels, 11.1.2012 SEC (2011) 1641 final COMMISSION STAFF WORKING DOCUMENT Online services, including e-commerce, in the Single Market
4. 1. 2 Personal data protection...53 4. 1. 2. 1 Personal data protection in the online environment...
53 2 4. 1. 2. 2 Spam and the eprivacy Directive...55 4. 1. 2. 3 Cookies and the eprivacy Directive...
4. 1. 2. 5 Data protection Directive...59 4. 1. 3 Online gambling...60 4. 1. 4 Online pharmacies and other health issues...
4. 2. 1 Price comparison websites...63 4. 2. 2 Restrictions on advertising...64 4. 2. 3 Unfair commercial practices...
PDF 2 Communication from the Commission, Europe 2020, A strategy for smart, sustainable and inclusive
PDF 3 Communication from the Commission to the European parliament, the Council, the Economic and Social
PDF 4 European commission, DG Sanco, 5th Consumer Scoreboard, Consumers at home in the Single Market March 2011, available at:
services. 11 Online retailing, online press, search engines, social networks, blogs, media streaming, online gambling and e-health are included in our analysis. The main focus
internet et dans le commerce traditionnel, Juin 2009; available at http://www. fevad. com/uploads/files/Prez/fevad estia 110609. pdf
6 Directive 2000/31/EC of the European parliament and of the Council of 8 june 2000 on certain legal aspects
HTML 7 Communication from the Commission to the European parliament, the Council, the Economic and Social
http://ec. europa. eu/internal market/smact/docs/single-market-act en. pdf 8 Report from the Commission to the European parliament, the Council, the Economic and Social Committee
http://ec. europa. eu/internal market/retail/docs/monitoring report en. pdf 9 Towards a Single Market Act, COM (2010) 608,27. 10.2010
PDF 11 This is defined by Eurostat/OECD as purchases and sales orders made via websites or systems of electronic
data interchange, excluding manually typed e-mails 5 however, is on issues related to the E-commerce Directive and the obstacles to its
implementation that have been identified. The document does not attempt to cover all topics of interest to online services or crosscutting issues such as social aspects or SME
information, communicating via social networks, etc..Electronic commerce continues to grow substantially, even in the current economic crisis.
internet users made purchases online, while 94%did in South korea. 16 This compares with 57%in the EU. 17 However, the growth rate of electronic commerce is now higher in the EU
Finally, m-commerce (electronic commerce conducted from a mobile phone, tablet etc. in the EU plays a more modest part in the growth of electronic commerce than in the USA and
retailer site from their mobile phone increased from 10%in 2008 to 28%in 2010 against 41
However, the use of mobile phones for financial services is more widespread: 46%of consumers surveyed said they had used them.
16 Forrester research Inc, The Global ecommerce Adoption Cycle, 15.01.2010 (using 2009 data 17 Eurostat, Data In focus 50/2010:
Internet Usage in 2010 †Households and Individuals, 14.12.2010 available at http://epp. eurostat. ec. europa. eu/portal/page/portal/product details/publication?
p product code=KS-QA-10 -050 18 KPMG, Consumer and Convergence Survey IV, April 2010, available at:
-vite/3b. pdf 7 Some sectors have already been transformed profoundly by electronic commerce. These include travel agencies (39%of sales were online in 2008), sales of electronic and cultural
From a wider perspective, the internet economy has generated 21%of the GDP growth of the
Internet consumption and expenditure already exceeds the share of GDP of agriculture or energy, and its GDP is bigger than the GDP of Canada or Spain. 23 It
linked to electronic commerce in the United kingdom. 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 "20 Opinion of the European Economic and Social Committee on the †Communication from the Commission to
PDF 21 IMRG Experian Hitwise Hot Shops List, May 2011 22 Mckinsey Global Institute, Internet matters:
The net's sweeping impact on growth, jobs, and prosperity May 2011, on the G8 countries, South korea, Sweden, Brazil, China and India.
http://ww1. mckinsey. com/mgi/publications/internet matters/pdfs/MGI INTERNET MATTERS FULL REPORT. pdf 23 Boston Consulting Group, Turning local:
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'à conomie franã§aise
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 â 100 and 150 billion
which is similar in the EU and the US. 27 This sector is expected to generate further growth
other EU legislation, covering various aspects such as data protection and consumer affairs 2. 2. 1 The E-commerce Directive
including taxation, questions related to the Data protection Directive and gambling activities28 2. 2. 1. 1 The Internal Market clause and establishment requirements (Articles 3-4
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
digital compression) and storage of data, and that it is transmitted entirely, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.
electronic (processing and storage) equipment and by telecommunications means •Finally, the service must be provided via the transmission of data"at an individual
request"."This constitutes the element of interactivity which characterises information society services and sets them apart from other services that are sent without a request
or television broadcasting services. 34 29 Directive 98/34/EC of the European parliament and the Council of 22 june 1998 laying down a procedure
PDF 30 Article 1 (2) of the Commission Directive 98/38/EC of 3 june 1998 adapting to technical progress Council
PDF, as amended by Directive 98/48/EC, OJ L 204/37, 21.07.1998 31 Treaty on the Functioning of the EU, OJ C 155/47, 09.05.2008, available at:
PDF 32 See Case C-108/09, Ker-Optika bt v ANTSZ DÃ l-dunã¡ntã li Regionã¡
-2009-943. pdf 34 See for example Case C-89/04, Mediakabel BV v Commissariaat voor de Media, ECR 2005 I-04891
Internet, generally to the customer's home. 38 Recent case-law of the ECJ confirms the broad principles underlying the Internal Market
screen or in a programme guide are provided not services"at the individual request"of a recipient because
-standards/files/standards policy/vademecum/doc/98 34 ec consolidated version en. pdf 36 See Recital 22 in the preamble of the ECD,
lenses via the Internet falls, in principle, within the coordinated field of the ECD. In the edata
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 does not necessarily have to be a telephone number. 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, to whom the
themselves to offering an e-mail address accessible for their customers through the website They must also provide for other forms of direct communication. 47
Bundesverband ev v deutsche internet versicherung AG, ECR 2008 I-07841, judgment of 16.10.2008 available at:
the trader's geographical address, telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and
HTML 13 A recent Mystery Shopping study carried out by the ECC-Net reveals that
Article 5 (2) obliges web traders, where information society services refer to prices, to provide a clear and unambiguous indication of the prices,
on the Internet. It obliges the Member States to ensure that online commercial communications (including promotional offers, discounts, premiums, promotional
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
http://ec. europa. eu/consumers/ecc/docs/mystery shopping report en. pdf. The research was conducted in all the EU Member States, Iceland and Norway, with purchases made for 10 different consumer product
Case C-324/09, L'Orã al v ebay, judgment of 12 july 2011, par. 95-96, available at
telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation".
personal data and the protection of privacy in the electronic communications sector, most commonly known as the eprivacy Directive51,
the use of email (including sms, mms), automatic calling machines and requires prior opt-in
PDF 51 Directive 2002/58/EC of the European parliament and of the Council of 12 july 2002 concerning the
processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ L 201/37, 31.07.2002;
HTML As revised by Directive 2009/136/EC of the European parliament and of the Council of 25 november 2009
HTML 53 Case C-119/09, Sociã tã fiduciaire nationale d'expertise comptable v Ministre du Budget, des Comptes
combination with the increasing use of the Internet by regulated professions may require that these codes be updated
same validity as contracts concluded offline by"traditional"means (equivalence principle This applies to all stages and acts of the contractual process,
Article 9 of the ECD has been complemented by the Electronic signatures Directive55 which regulates the legal recognition of e-signatures (see Chapter 4. 4. 3
framework for electronic signatures, OJ L 013/12, 19.01.2000; available at: http://eur -lex. europa. eu/Lexuriserv/Lexuriserv. do?
HTML 16 In addition, online service providers must make available any relevant codes of conduct contract terms and general conditions. 56 Consumers should
on screen and by e-mail. In 10%of purchases, a confirmation of the order was received only
by e-mail and in 8%only on screen. In 1%of purchases, no confirmation was received58
welcome the opportunity to learn more about the experiences of both internet consumers and online businesses in respect to the process of placing orders.
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
http://ec. europa. eu/consumers/ecc/docs/mystery shopping report en. pdf 17 2. 2. 1. 6 Implementation and application (Articles 16-20 ECD
Electronic signatures Directive65 which regulates the legal recognition of e-signatures and is currently under revision (see Chapter 4. 4. 3
PDF 61 Directive 2006/123/EC of the European parliament and of the Council of 12 december 2006 on services in
HTML 62 Consumer Rights Directive, OJ L304/64,22. 11.2011 63 Directive 2001/29/EC of the European parliament and of the Council of 22 may 2001 on the harmonisation
PDF 64 Directive 2004/48/EC of the European parliament and of the Council of 29 april 2004 on the enforcement
PDF 18 •The E-Privacy Directive66 (2002 and 2009) complements and particularises the Data
Protection Directive67 with regard to the processing of personal data in the electronic communication sector. The latter adds to the rules on"spam"in the ECD and regulates
confidentiality of communications (See Chapter 4. 1. 2. 2). The UCP Directive68 (2005 is also relevant for the application of Articles 6 and 7 E-commerce Directive (see
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
framework for electronic signatures, OJ L 013/12, 19.01.2000; available at: http://eur -lex. europa. eu/Lexuriserv/Lexuriserv. do?
PDF 66 Directive 2002/58/EC of the European parliament and of the Council of 12 july 2002 concerning the
processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ L 201/37, 31.07.2002;
PDF. Directive 2002/58/EC repealed Directive 97/66/EC of the European parliament and of the Council of 15 december 1997
concerning the processing of personal data and the protection of privacy in the telecommunications sector 67 OJ L 281,23. 11.1995, p. 31
PDF 19 3. 1 Need for further information on the application of the ECD 3. 1. 1 Lack of information on actual implementation in the Member States
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.
Additional data are necessary to measure the progress of online services in the European economy. Some data are available in private
research institutes, but they do not always cover the 27 Member States, and their comparability is guaranteed not.
This lack of information calls for a new framework for measuring the value of the Internet including services provided via the Internet
The Commission services will, 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 better co-operation in the application and
PDF 20 services. The Directive is intended to help avoid the creation of new barriers to trade within
PDF 72 See the Report from the Commission to the Council, the European parliament and the ECOSOC, The
http://ec. europa. eu/enterprise/tris/reps 2008 2006/EN. pdf 73 For example, the Commission received notifications from France on the"Loi Hadopi",from Spain on the
"and from the UK on the"Digital economy Act",available at http://ec. europa. eu/enterprise/tris/pisa/app/search/index. cfm?
PDF 76 Ker-Optika judgment, par. 76 77 Regulation (EC) No 2006/2004 of the European parliament and the Council of 27 october 2004 on
PDF 22 relevant authority in another Member State. This could have the effect of making recourse to
in Member State A considers that the website of an online trader established in Member State
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,
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
PDF 79 See: http://ec. europa. eu/internal market/e-commerce/contact-points-central en. htm 23 information on e-commerce which is relevant for businesses and consumers.
use of the Internal Market Information system (IMI) for Article 19 ECD could also be explored
both screen a sample of websites in a given sector for compliance with EU consumer
standards,(2) develop the exchange of best practices through a common website and (3 develop tools and techniques to identify emerging online threats for consumers
PDF 81 Since November 2005 ten meetings have been held 24 It is important that the ECD is fully
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
liability exceptions, offering a video-sharing site would probably be too great a commercial risk.
"83 Google contribution to the public consultation on the future of electronic commerce in the internal market
-fdfb207464de/EU%20google%20entr%20%28th%201-2%264-5%29%20808590. pdf 25 that the liability exemption of Article 14 applies to any content
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, illicit
tobacco or alcohol advertisements, unfair commercial practices or breaches of the EU consumer rights acquis
intermediaries a general obligation to monitor. National courts have in recent years produced decisions imposing injunctions on intermediaries obliging them to prevent a
The ECJ ebay vs. l'Orã al 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
emerged that the legislators could not have foreseen, such as video-sharing sites, selling platforms, social networks and peer-2-peer services.
This section provides an overview of the interpretations that have been given to the definition of activities listed in Articles 12 to 14 of
specific liability exemptions for information location services (search engine services) and hyperlinking services. Austria, Hungary, Spain and Portugal have adopted specific liability
exemptions for search engines according to which a company can benefit if it meets the conditions that hosting service providers are required to meet
85 Joined cases C-236/08 to C-238/08, Google vs. LVMH, judgment of 23.03.2010, for instance par. 113
HTML 27 uncertainty. Respondents to the e-commerce consultation called on the Commission to clarify the status of these new services in view of often contradictory national case law.
video sharing sites, social networks and search engines, favoured the inclusion of those activities within the"safe harbour"regime
Where specific exemptions from liability for search engine services and hyperlinking services have not been included explicitly in national legislation,
•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 of Article 12 ECD
Google Inc.)stated that the Dirwarn-Font not found: Couriernew ective was not relevant for the liability of a news search service because
not specify why a search engine should be classed as a hosting provider 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; available at: http://www. copiepresse. be/13-02
-07-jugement-en. pdf 88 Deutscher Bundesgerichtshof (BGH), 29.04.2010, ref. no. I ZR 69/08; available at
file=dokument. pdf 89 Paris Court of Appeal, 13.10.2010; available at: http://legalis. net/spip. php?
page=jurisprudence -decision&id article=3001 #90 Hamburg Regional Court, 03.09.2010, ref. no. 308 O 27/09; available at
The court ruled that Youtube could not benefit from a liability exemption for hosting providers as, for the following reasons, it would have adopted uploaded third party
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†Orã al 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=jurisprudence -decision&id article=2354 93 Paris Civil Court, 13.05.2009;
available at: http://www. legalis. net/spip. php? page=jurisprudence -decision&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;
http://www. legalis. net/spip. php? article3144 95 High court of England and Wales, 22.05.2009,2009 EWHC 1094 (Ch;
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;
http://medien-internet-und -recht. 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;
available at http://www. bailii. org/ew/cases/EWHC/QB/2010/690. html 99 Paris Court of First Instance, 08.06.2009, ref. no. 08/11342;
available at http://www. juriscom. net/documents/tgiparis20090608. pdf 100 TGI Paris, 22.06.2007; available at:
http://www. legalis. net/jurisprudence-decision. php3? id article=1965 30 could not benefit from a liability exemption.
provided by users, could benefit from a liability exemption for hosting. 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 National jurisprudence on file sharing services also diverges.
For instance •The Italian Court of Cassation102 considered that Piratebay, a peer-2-peer file sharing
service particularly known for sharing pirated works, was not a hosting service provider •The Stockholm District Court103, without providing details of its argumentation
considered that Piratebay should be considered a hosting service provider. However Piratebay was held not to fulfil the requirements to benefit from a liability exemption
The first case concerned Google's paid referencing service,"Adwords, "and its liability for infringements of trademarks held by The french luxury group LVMH,
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
whenever one carries out"a search "101 Cour d'Appel de Paris, 21.11.2008, ref. no. 08/09553;
http://www. legalis. net/spip. php? page=jurisprudence-decision&id article=2488 102 Court of cassation, Third Criminal Chamber, 29.09.2009, ref. no. 49437;
ssazione-sentenza-49437-2009. pdf? cmd=art 103 Stockholm District court, Division 5 Unit 52,17. 04.2009, ref. no.
http://www. ifpi. org/content/library/Pirate-Bay-verdict-English-translation. pdf 104 Joined cases C-236/08 to C-238/08, Google vs.
LVMH, judgment of 23.03.2010; available at: http://eur -lex. europa. eu/Lexuriserv/Lexuriserv. do? uri=CELEX:
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 In the national proceedings LVMH (the holder of the"Louis vuitton"trademark) complained about the fact that both competitors and counterfeiters of the firm had reserved the keyword
"Louis vuitton"(meaning their advertisements would appear in response to a search for "Louis vuitton")and that Google had prevented not them from doing so.
The french Cour de Cassation asked the ECJ whether the reservation of keywords could be interpreted as a
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
control of the data 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'Orã al
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'Orã al, from paid internet referencing services (such as Google's"Adwords".
"In parallel to this, L'Orã al 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 "Article 14 of the ECD) must, in fact, be interpreted in the light not only of its wording but
also of the context in which it occurs and the objectives pursued by the rules
of which it is part (see, by analogy, Case C-298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbã¤nde 2008 ECR I-7841, paragraph 15 and the case law cited
4 of Chapter II of that directive (see Google France and Google, paragraph 112 "Paragraphs 110-112
service neutrally by a merely technical and automatic processing of the data provided by its
those data (Google France and Google, paragraphs 114 and 120".("Paragraph 113 "the mere fact that the operator of an online marketplace stores offers for sale on its
server, sets the terms of its service, is remunerated for that service 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 Where, by contrast, the operator has provided assistance which entails, in particular
control over, the data relating to those offers for sale. It cannot then rely, in the case of those
data, on the exemption from liability referred to in Article 14 (1) of Directive 2000/31
The ECJ suggested that Ebay would potentially in some instances not have such a neutral
"In some cases, ebay also provides assistance intended to optimise or promote certain offers for sale"(paragraph 114
'informal'notice from a user, such as a red flag under a video, to a court order
instance, has a"general awareness"that its site hosts illegal information The first interpretation is defended commonly by civil organisations in defence of, in
their sites and that this constitutes actual knowledge. ISPS that advertise the possibility of downloading music and videos of the consumer's choice would for instance have this form of
"computer knowledge "Stakeholders sometimes defend a differentiated approach on the basis that the means by
political party by a third party was considered manifestly illegal because the website of the third party was almost identical to the website of the political party, but
contained hyperlinks to racist content, meaning it could tarnish the reputation 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, infringements relating to advertising
A host of a website containing hyperlinks leading to to child pornography was attributed knowledge of these illegal hyperlinks
voluntarily implemented a flagging system (that enables users to put red flags next to content
&sort=3&anz=45&pos=0&nr=40136&linked=urt&blank=1&file=dokument. pdf and BGH, 11.03.2004, ref no. I ZR 304/01;
&sort=3&anz=31&pos=0&nr=30359&linked=urt&blank=1&file=dokument. pdf 110 TGI Paris, 12.07.2001; available at:
http://www. legalis. net/spip. php? page=breves-article&id article=213 111 TGI Nanterre, 24.05.2000; available at:
-par20061124. pdf 113 TGI Paris, 27.02.2006; available at: http://www. legalis. net/breves-article. php3?
http://www. juriscom. net/documents/tgiparis20061019. pdf 116 Cour de Cassation de Belgique, 03.02.2004, R. D. T. I.,2004, nâ°19, P. 03.1427.
Youtube LLC. 117 Some stakeholders, in particular intermediaries, therefore suggested that the Commission should propose a so-called"Good samaritan clause".
In case C-324/09, L'Orã al vs. ebay (see also Chapters 3. 4. 2. 1 and 3. 4. 2. 2) the referring court
118 See Telecommunications Act of 1996: http://transition. fcc. gov/telecom. html 119 Regional Court of Hamburg, 03.12.2007, ref. no. 324 O 794/07;
available at http://www. landesrecht. hamburg. de/jportal/portal/page/bshaprod. psml? showdoccase=1&doc. id=JURE0800
-7009-Blogspot. html 121 Constitutional Council of France, 10.06.2004, decision no. 2004-496 DC; available at
whether ebay was aware of facts and circumstances from which the illegal activity was apparent:
operator has played not an active role allowing it to have knowledge or control of the data
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
Google case. The AG claims to"have some difficulties"with the conclusion of the Court
For instance, traffic management by internet providers (see Chapter 4. 3. 4 on net neutrality) could, according to some stakeholders, be interpreted as selecting or
123 See in particular Chapter 3. 4. 3. 1 on"actual knowledge"and the ebay vs L'Orã al case
obtain the blocking of access by internet users in their territory and the removal of internet
PDF 125 Communication from the Commission to the European parliament, the Council, the European Economic and
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 â€oeinfringements of IPR via the internet more effectively"by"tackling the infringements at their
the rights to private life, protection of personal data, freedom of expression and information and to an
•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, a number of voluntary codes have been developed at EU level
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 signed
under the auspices of the Commission, a Memorandum of Understanding aimed at reducing the sale of counterfeits via e-commerce platforms.
counterfeit goods from being listed on internet platforms. 132 •A similar EU level dialogue on online piracy (copyright infringements) was launched
Take down tcm91-293746. pdf 129 See Charte de lutte contre la contrefaã§on sur Internet http://www. minefe. gouv. fr/actus/pdf/091216charteinternet. pdf
130 See recent developments on the web-page of the Ministã re de l†Economie http://www. minefe. gouv. fr/actus/11/contref internet. html
131 See: 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
This applies to their legal obligations regarding illegal content and particularly to joint voluntary commitments and adherence to codes of conduct.
The large majority of Member States reported that notice -and-takedown procedures have been developed and are applied
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.
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 and information society services transposing the E-commerce Directive) provides for a notice-and-takedown for mere
•The UK Digital economy Act follows a three-tier approach. First, ISPS must notify their subscribers of infringements which have been reported by copyright owners and
forced to block access to copyright-infringing websites •The UK Terrorism act provides a specific procedure for terrorism-related
•The Spanish"Ley Sinde"does not target the end user but the illegal service that can be
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
where there is a financial gain involved in the takedown (for instance phishing websites. A majority of the respondents to the consultation proposed a European notice-and-takedown
refuse to use the NTD procedure proposed by a particular site and provide information in a
-notice could be in breach of data protection rules since it would require identifying the content provider
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 or for taking down or blocking legal content NTD procedures do not exclude a risk that wrongful notices are provided to intermediaries (in
operators judging the legality of information on the Internet represented"private judges "They believed it would not be legitimate
http://www. cl. cam. ac. uk/rnc1/takedown. pdf 46 Many stakeholders consider that the legitimacy of private operators deciding on the takedown
blocking would not be a solution to the existence of illegal information on the Internet
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
The cross-border nature of the Internet, the existing fragmentation of NTD systems, the lack
•Contribute to combating illegality on the Internet •Ensure the transparency, effectiveness, proportionality and fundamental rights
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
In the L'Orã al vs. ebay case138 the European Court of Justice accepts, in principle, the
provider to introduce filtering software for the prevention of copyright ingringements is incompatible with Article 15 of the Directive, construed in the light of the requirements
involving the use of peer-to-peer software †which applies indiscriminately to all its customers †as a preventive measure
oblige it to actively monitor all the data relating to each of its customers in order to prevent
138 Case C-324/09, L'Orã al v ebay, judgment of 12 july 2011, par. 141, available at
computer system at its own expense"(paragraph 48 •"is to be regarded as not respecting the requirement that a fair balance be struck
to protection of their personal data and their freedom to receive or impart information, which are safeguarded rights by Articles 8 and 11 of the Charter
protection of personal data and the freedom to receive or impart information, on the other "paragraph 53
A similar case, on the compatibility of such a filtering obligation for a social network, is
have imposed or have been asked to impose the use of filtering software to prevent illegal information and activity by means of injunctions on intermediaries.
•In a case concerning the Belgian collecting society SABAM and the internet service provider Tiscali141 (now Scarlet) a judge on 29 june 2007 ordered Tiscali to use a
specific filtering software("Audible Magic")to prevent infringements of copyright 140 Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM) v N. V. NETLOG
http://www. cardozoaelj. net/issues/08/case001. pdf 50 managed by SABAM. The court considered that this software had proven to be
effective and considered that the average cost of implementing the measure did not appear excessive. Moreover, the Court argued that implementing a filtering technique
•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'Orã al's trademark.
filtering software was not necessary as ebay had made the required efforts to prevent trademark infringements, suggesting that to some extent there is an obligation of
of the Digital economy Act (DEA, discussed above) under the European law and in particular Article 15 thereof144.
The Court notes that copyright owners may well"monitor information(..(),but they are not ISPS
impose filtering software are compatible with the prohibition of a general monitoring obligation. However, one can imagine that
&sort=3&anz=45&pos=0&nr=40136&linked=urt&blank=1&file=dokument. pdf and BGH, 11.03.2004, ref no. I ZR 304/01;
&sort=3&anz=31&pos=0&nr=30359&linked=urt&blank=1&file=dokument. pdf 143 TGI Paris, 13.05.2009; available at:
http://www. legalis. net/spip. php? page=jurisprudence -decision&id article=2639 144 High court of Justice of England and Wales, Queen's Bench Division, 20.04.2011;
would be content in so-called †flat pdf files†(that are similar to non-searchable images), such
Video hosting sites have, for instance, voluntarily and in cooperation with right holders, developed so-called fingerprinting techniques that identify the unique hash code
seriously harmful content 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
interoperability between these techniques for different video sharing sites would be a particular burden according to some right holders
personal data protection. There are, however, legitimate concerns about the protection of minors and public decency as regards, in particular, child sex abuse images that circulate on
the internet and as discussed above in the area of video and image content filtering
Trustmarks, personal data requirements, specific policies for online gambling and pharmacies and liability provisions for businesses all contribute to enhancing trust online
service, data protection and dispute settlement. Well-known trustmarks within the EU include Thuiswinkel146 (The netherlands), Trusted Shops147 (UK) and Confianza Online148 (ES
especially for retail websites 145 See in particular the Commission Communication"A Digital Agenda for Europe",COM (2010) 245 of
-communication-en. pdf 146 See: http://www. thuiswinkel. org/engelstalig/-new/home/homepage-thuiswinkel 147 See:
4. 1. 2 Personal data protection 4. 1. 2. 1 Personal data protection in the online environment
It is acknowledged widely that trust is the currency of the digital economy. In today's digital
context, buyers of goods and services provide †often without much thought-their bank or
Millions of citizens publish photos, blogs and text about families, friends and colleagues on social networks such as Netlog, Linkedin
and Facebook, often without being aware of privacy policies. The use and exchange of personal data have become essential factors in the online economy. 150 Professional players are
aggregating massive amounts of data for professional use, in particular for behavioural advertising. 151 In situations where hosting services are requested to take down illegal material
such as pirated or counterfeited works, information about both up-and downloaders needs to be shared between the right holders and intermediaries
149 The IMCO Committee mandated Mr Pablo Arias Echeverria, Rapporteur for the own-initiative report
EN. pdf. The Working group will organize a second cycle of workshops in the first half of 2012
150 Mckinsey Global Institute, Big data: The next frontier for innovation, competition and productivity, May 2011; available at:
http://www. mckinsey. com/mgi/publications/big data/index. asp 151 Behavioural targeting or behavioural advertising is used a technique by online publishers and advertisers to
Information is collected on an individual's web-browsing behavior, such as the pages they have visited or the searches they have made,
marketeers to deliver their online advertisements to the users who are most likely to be interested.
example, a user may often visit sport sites and thus be categorised in the"sports fan"segment.
This user would then be shown advertisements that are relevant to the interests of a sports fan
and the right to the protection of personal data. Data protection rules organise and control the way personal data are processed.
These rules take account of the importance of the freedom of expression and provide for specific regime applicable to the
processing of personal data carried out solely for freedom of expression purposes. 153 The ECD does not apply to questions relating to information society services covered by the
EU legislation on the protection of personal data (Article 1 (5)( b) ECD. The Data protection Directive154 constitutes the fundamental legal framework for the processing of personal data
in the EU. It was adopted to harmonise the legislation of the Member States with the twofold
objective of protecting fundamental rights, namely the right to personal data protection, and ensuring the free flow of personal data between Member States within the context of the
Internal Market. According to the Data protection Directive, personal data must be processed fairly and lawfully, collected for specified, explicit and legitimate purposes (data
minimisation principle) and not further processed in a way incompatible with those purposes principle of finality. Personal data must be adequate, relevant and not excessive in relation
to the purposes for which they are collected (purpose limitation principle. The Directive furthermore provides for the right of individuals to be given information on the purposes of
the processing, how and by whom their data are processed and the rights to access, rectify and
delete personal data. Monitoring of compliance with data protection laws implementing the Directive is entrusted to national public independent authorities endowed with investigative
and enforcement powers. The data protection authorities also hear claims lodged by individuals regarding the processing of their personal data
A major factor enabling individuals to know about the processing of their personal data and exercise the rights granted by the Data protection Directive is the provision of information
principle of transparency. 155 Service providers that qualify as data controllers have to provide users with clear, easily understandable and affordable privacy notices in line with the
requirements of the Data protection Directive. This rule is, however, not always observed Since its adoption in 1995, other EU legislation has come into force
which complements the Data protection Directive. The most significant instrument for e-commerce and other online services is Directive 2002/58/EC concerning the processing of personal data and the
protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), 156 as amended by Directive 2009/136/EC (Citizen's Rights
152 Charter of Fundamental Rights of the EU, OJ C 364/1, 18.12.200; available at http://www. europarl. europa. eu/charter/pdf/text en. pdf
153 See: ECJ, Case C-101/01, Bodil Lindqvist, 6. 11.2003, and Case C-73/07, Tietosuojavaltuutettu v
Satakunnan Markkinapã rssi Oy, Satamedia Oy, 16.12.2008; both available at http://curia. europa. eu/juris/recherche. jsf?
language=en 154 Directive 95/46/EC of the European parliament and of the Council of 24 october 1995 on the protection of
individuals with regard to the processing of personal data and on the free movement of such data, OJ L
281/31, 23.11.1995 (hereafter †Data protection Directiveâ€; available at: http://eur -lex. europa. eu/Lexuriserv/Lexuriserv. do?
uri=CELEX: 31995l0046: en: HTML 155 See: Data protection Directive, Art. 10 and 11 156 Directive on privacy and electronic communications, OJ L 201/37, 31.07.2002
55 Directive), 157 hereafter the eprivacy Directive. 158 The eprivacy Directive intends inter alia to give citizens control over
which information is stored on or retrieved from users'terminal equipment, including computers, smartphones or other devices connected to the internet
Users should be able to know and control who is using their information, and how the
information is being used Many respondents to the public consultation on e-commerce commented on the data
protection and privacy dimension of online services. The potential importance of personal data for the development of the Digital Single Market has been outlined, but also concerns
about the use of data have been raised. The following sections focus on spam as well as cookies, and recall the upcoming revision of the data protection framework
4. 1. 2. 2 Spam and the eprivacy Directive Recent studies suggest that unsolicited commercial communication
or spam accounts for more than 90%of global e-mail traffic. 159 Spam is popular because costs for senders are low
even with a wide range of unsolicited messages. Only a limited number of recipients need to
respond in order for spam to be commercially viable. This is even truer for types of spam that
intend to gain access to information such as credit card numbers or company secrets Spam can seriously harm the development of online services.
Their costs do not only relate to the unnecessary use of broadband capacity or the purchase of expensive anti-virus software
Unsolicited messages infringe individual privacy rights, they can infect computers with viruses and the illegal offer of pharmaceuticals affects consumer confidence and threatens
their health. 160 157 Directive 2009/136/EC of the European parliament and the Council of 25 november 2009 amending
and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation
PDF 158 Reference can also be made to the Data Retention Directive (Directive 2006/24/EC of 15 march 2006 on the
retention of data generated or processed in connection with the provision of publicly available electronic
communications services or of public communications networks and amending Directive 2002/58/EC), OJ L 105/54, 13.04.2006;
HTML. The Directive harmonises national laws on the retention of data e g. on internet access, telephony and e-mail to ensure the
investigation, detection and prosecution of"serious crime"."See the report from the Commission to the
Council and the European parliament on the Data Retention Directive (Directive 2006/24/EC), COM (2011 225 final, 18.04.2011;
http://www. statewatch. org/news/2011/apr/eu-com-data-retention-report -225-11. pdf
159 See: van Eecke & Truyens for DG INFSO, EU Study on the Legal analysis of a Single Market for the
PDF 56 Article 13 of the eprivacy Directive complements the provisions of Articles 6 and 7 of the E
Users must give their prior consent before communications for the purposes of direct marketing may be addressed to them.
applies only to users who are natural persons The 2009 amendments of the eprivacy Directive strengthen
Directive, makes illegal under Article 13 (4) all commercial e-mails advertising websites without disclosing the identity of the sender on
Cookies are hidden information exchanged between an internet user and a web server, and are stored in a file on the user's hard disc.
They are designed to facilitate a browser-server interaction in order to collect data. Cookies allow the creation of profiles which can be
beneficial for both users and online service providers. Based on a survey carried out in 2010 by ENISA, 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. They argued that cookies do not store information such as IP addresses or personal information (names, addresses etc
But other respondents to the public consultation were convinced not and warned against the negative impact of cookies.
Information collected through the use of cookies is processed to build up user profiles which is sold not only to third parties
and applied for behavioural advertising but could also be used for other kinds of (commercial and noncommercial
applications, often without users being aware of it How the data are collected and used raises questions about the compatibility of this practice
with the eprivacy Directive. A significant number of respondents expressed concerns about the scope of the new rules on eprivacy,
and requested further guidance on their application in practice especially regarding the notion of"consent
or user is allowed only on condition that the subscriber or user concerned has given his or her consent, having been provided
with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia about the purposes of the processing"(bold added
Accordingly, consent has the same meaning as the data subject's consent defined in Article 2 (h) of that Directive, i e."
enabling a freely given specific and informed indication of the user's wishes, including by
ticking a box when visiting an internet website"."The Commission services understand this in their guidance document as follows
•The user concerned must be informed163, i e. the user must have information about the
purpose of the intended operation (s) when deciding on whether or not to consent to
be allowed for legitimate purposes, with the knowledge of the user concerned "In order to fulfil the condition of specific consent,
of operations about which the user has been informed at the time of giving consent Any changes in the purpose for which consent was given that occur afterwards cannot
be assumed to be covered by that consent, such as processing of data for incompatible secondary purposes. This would be unlawful. 165 However, where a sequence of
and accessing data on a user's terminal equipment are part of processing for the same purpose,
individual operation involving gaining access to or storing of information on a user's terminal, if the initial information and consent covered such further use.
offered once for the use of various devices to be installed on the user's terminal
163 In accordance with Article 10 of Data protection Directive (95/46/EC) information should cover at least the
which the data are collected, to guarantee fair processing in respect of the individual 164 Article 10 of the Data protection Directive lays down the minimum information that has to be provided to a
data subject 165 Further processing of personal data for historical, statistical or scientific purposes is not generally to be
considered as incompatible with the purposes for which the data have previously been collected, provided suitable safeguards are in place (see recital 29 and Article 6 (1)( b) of the Data protection Directive
58 •Consent should be given freely, i e. the user must have an actual choice. This also
implies that a user, having freely given his or her consent, can also revoke it at any
time. Recital 25 however clarifies that freely-given consent implies that a user may not be able to be provided with a specific service
if he or she does not consent to the storing and/or accessing of information on his or her terminal equipment:"
"Access to specific website content may still be made conditional on the well-informed acceptance of cookies or similar device,
if it is used for a legitimate purpose "The second sentence of Article 5 (3) provides for a possible exception to the principle of
information and consent where the use of cookies and similar devices could be allowed without the need for transparency and consent.
requested by the subscriber or user to provide the service"."As it is an exception to the
of enabling the use of a specific service explicitly requested by the subscriber or user
accordance with the relevant provisions of Directive 95/46/EC, the user's consent to processing may be expressed by using the appropriate settings of a browser or other
marketing and the processing of data. These codes supplement already legally binding requirements and confirm commitments on principles such as informing consumers about
control of their data; how they are used (selling to third parties, use re-targeting etc.),and
respecting the particular needs and vulnerabilities of young users. 168 166 Only AT, DK, EE,
data protection legal requirements and to provide transparency to users, and it will present new initiatives in the area of behavioural advertising in the first quarter of 2012.
i e. users should be provided with a clear notice of any targeting activity that is taking place
i e. an appropriate form of affirmation on the part of the user that he or she
•a user friendly solution, possibly based on browser (or another application) settings •effective enforcement, including clear and simple complaint handling, reliable third
The Council of europe has adopted a recommendation on profiling and data protection setting out minimum privacy standards to be implemented through national legislation and self
4. 1. 2. 5 Data protection Directive The Commission is preparing a major reform of the data protection rules laid down in the
Data protection Directive171 to make the data protection framework more coherent and provide more legal certainty (adoption foreseen in the first quarter of 2012.
The objectives are to set forth a comprehensive and consistent personal data protection legal framework which addresses new challenges such as technological developments in the digital economy
and more intense globalisation, while eliminating unnecessary costs for operators, reducing administrative burdens, and ensuring more coherence in the data protection acquis.
The reform also aims at clarifying and simplifying rules for international transfers of personal data and strengthening and clarifying the powers of data protection authorities to ensure
compliance with data protection rules advertisement, 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 principles oblige the
participating companies to provide clear and unambiguous notice to users that it collects data for the
purposes of online behavioural advertising. They also contain commitments on user education and the creation of complaints mechanisms
169 See in particular http://europa. eu/rapid/pressreleasesaction. do? reference=SPEECH/10/452 170 Recommendation CM/Rec (2010) 13 of the Committee of Ministers to member states on the protection of
individuals with regard to automatic processing of personal data in the context of profiling, 23.11.2010 available at https://wcd. coe. int/wcd/Viewdoc. jsp?
Ref=CM/Rec (2010) 13&language=lanenglish&ver=original&backc olorinternet=C3c3c3&backcolorintranet=EDB021&BACKCOLORLOGGED=F5d383 171 See the Communication from the Commission to the European parliament, the Council, the Economic and
Social Committee and the Committee of the Regions, A comprehensive approach on data protection in the
European union, COM (2010) 609,04. 11.2010; available at http://ec. europa. eu/justice/news/consulting public/0006/com 2010 609 en. pdf
60 Individuals sometimes find it difficult to exercise their rights as laid down in the Data
Protection Directive. For example, in practice it is not always easy to request deletion of data or to get access to personal data.
This is particularly an issue in the digital environment Several provisions of the Directive have given rise to divergent interpretations and have not
been implemented and enforced in a uniform manner in the Member States, thereby creating legal uncertainty and unnecessary costs for business
4. 1. 3 Online gambling The online gambling market is the fastest growing segment of the overall gambling market
The development of the Internet and the increased supply of online gambling services are posing challenges for the co-existence of differing regulatory models, illustrated by the
172 See the DG€ s website: http://ec. europa. eu/internal market/services/gambling en. htm 61
but an almost total absence of legal internet sales in some eastern European Member States
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.
Internet guarantees anonymity to users, allowing people to access advice or medicines that they may otherwise be reluctant to approach their pharmacists for in front of other customers
In the absence of developed legal markets, the Internet has, however, become dominated by illegal offers to which consumers (including the most vulnerable seeking"cheaper"solutions
requirements and the creation of an obligatory"trust mark"("common logo")for websites legally offering medicinal products on the Internet.
A"reciprocal link"between the common logo and a national register of legally-operating online sellers176 will allow verification of
requirements under which medicines are sold over the Internet, within the limits of the EU Treaty
http://ec. europa. eu/health/files/eudralex/vol-1/dir 2011 62/dir 2011 62 en. pdf 176 Directive 2011/62/EU refers to a"natural
PDF 178 Commission from the Commission to the European parliament, the Council, the European Economic and
PDF 63 Working Paper on the applicability of the existing EU legal framework to telemedicine
necessary in this context, 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
In 2010, eight in ten online shoppers used a price comparison website to research their purchases,
comparison websites, only a low proportion of price comparison websites (17%)give customers the option of offers available from other Member States.
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
In 60%of tested price comparison websites, it was not clear whether retailers had to pay to
and most price comparison websites did not display the correct final price. Information provision on added costs was rather poor.
websites showed prices including VAT and other taxes, and delivery charges. Another worrying finding was that in more than half of trials,
"179 Data from the mystery shopping exercise taken from Civic Consulting. Consumer market study on the
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.
Search engines charge advertisers on a pay-per-click basis. The trend is towards direct-response type
advertising instead of display advertising Publishers have focussed on the importance of advertising revenues which account for 50%of
newspaper revenues in the printed environment and almost 100%in the digital area Restrictions on advertising may
therefore have a negative effect on the development of online services. Certain restrictions on advertising,
such as on tobacco products, alcohol, gambling or financial services, are based on the principle of the protection of a general interest.
and apply both in offline and online 180 European commission, Flash Eurobarometer 300: Retailers'attitudes toward cross-border trade and
consumer protection. March 2011, available at: http://ec. europa. eu/public opinion/flash/fl 300 en. pdf. The
"cooling-off"period is the period after the purchase during which a consumer has the legal right to return a
product purchased on the internet, by phone or post without paying a penalty. This"cooling-off"period
http://ec. europa. eu/consumers/ecc/docs/mystery shopping report en. pdf 65 situations. 182 But the public consultation and Commission research make clear that other
products online183 or apply different conditions for online and offline marketing. National rules restricting the periods of sales for"brick
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. Finally, the application of data and privacy protection rules on cookies
and behavioural targeting has sometimes been perceived as excessive by internet companies The Commission services will continue to monitor
and analyse the national regulatory and contractual developments in the Member States and the EU with a view to assessing their
All audiovisual commercial communications (TV and on-demand) must be readily recognizable not use subliminal techniques;
The Directive covers television, on-demand services and emerging advertising techniques. 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, Case C-108/09
HTML 185 Unfair Commercial Practices Directive, OJ L 149/22, 11.06.2005 66 •Safeguards for vulnerable consumers:
The UCP Directive applies to commercial practices both in offline and online situations. The Directive is thus a crucial instrument for guaranteeing that any commercial information
available on websites is fair and that it does not confuse consumers. In order to ensure that
•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,
provisions (websites selling airlines tickets, online mobile phone services, websites selling consumer electronic goods •on 3 december 2009 the Commission published detailed guidelines aiming to provide
understanding of the Directive, the Commission has developed a legal database which will make it possible to compare decisions and national case law of the Member
The database is a comprehensive and user friendly tool which gathers and gives public access to national laws transposing the Directive, jurisprudence
which should summarize existing digital user rights in the EU in a clear and accessible way
way to inspire trust and confidence among users of e-communications and online services The Code will build on the prototype of the eyou Guide, 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
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.
confronted with refusals of online web shops to deliver if they are not residing in the same
most frequent cases concern web shops that either refuse to sell items or services to residents
188 European commission, Flash Eurobarometer 300: Retailers'attitudes toward cross-border trade and consumer protection. March 2011, available at:
http://ec. europa. eu/public opinion/flash/fl 300 en. pdf 68 of certain Member States, or sell identical items or services at a (much) higher price due to the
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. Complaints received by the Commission and the European Consumer Centres indicate that such practices exist for a wide range of services such as the sale of electronic goods
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
PDF 69 national provisions implementing Article 20 (2) of the Services Directive and as yet no
Globally operating internet companies therefore usually choose to have their country specific sites with a TLD of the country in question.
Businesses that register under a local domain name will very often also be ranked higher when their
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
and IP routing guarantee a minimum quality to end-users for services that require a differentiated network speed (such as videoconferencing),
while, on the other hand, a certain degree of filtering is necessary to block harmful traffic such as cyber attacks and viruses
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, usually by
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), but stresses that more exhaustive evidence is needed before policy conclusions can be drawn at the European level.
The Communication furthermore recalls that the Commission reserves its right to assess under Articles 101 and
Committee and the Committee of Regions, The open internet and net neutrality in Europe, COM (2011) 222
mm-19042011. pdf 194 In The netherlands a draft law is discussed that should guarantee net neutrality, Kamerstuk, 32549/17
The development of the Internet has meant the birth of a trade in goods and services that have
Equally, 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,
Today, with the availability of adequate computer support for reading text, books have become services
League brought actions against a number of UK pubs using non-UK pay-TV subscriptions to show live
users and collecting societies. Second, the creation of a clear and well-functioning legal framework for the multi-territorial licensing of musical works for online services
http://ec. europa. eu/internal market/copyright/docs/ipr strategy/COM 2011 287 EN. pdf 73 digitisation and making available of"orphan works".
"198 Orphan works are works such as books, newspapers or films that are protected still by copyright but whose
equipment (photocopiers, printers, Mp3 players, CDS and DVDS etc..However different rules and tariffs apply across Member States.
http://ec. europa. eu/internal market/copyright/docs/orphan-works/proposal en. pdf 199 See for more details European commission, Memorandum of Understanding:
Digitisation and Making Available of Out-of-Commerce Works, 20.09.2011, available at http://ec. europa. eu/internal market/copyright/copyright-infso/copyright-infso en. htm#mou
http://ec. europa. eu/commission 2010-2014/barnier/docs/speeches/20111123/statement en. pdf 201 See http://ec. europa. eu/internal market/consultations/2011/audiovisual en. htm
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.
framework allowing more effective combating of IPR infringements via the Internet 7. Journalists are authors
publishers have over the use of their works on the Internet, in particular in view of the
whether this be on demand, Internet or satellite. The inadequacy of rules governing the provision of digital cultural goods,
PDF 205 Report from the Commission to the European parliament, the Council, the Economic and Social Committee
http://ec. europa. eu/dgs/internal market/docs/evaluation/2008cad eval en. pdf 75 EU, has contributed to the emergence of"grey markets"."
subscribers to pay-TV are prevented from viewing outside national territories due to a system of contracts with territorial limitations.
the import, sale and use of pay-TV subscriptions from outside the national territory fall under
Examples are geographical information, statistics, weather data, public transport data, data from publicly funded research projects,
and digitised books from libraries This information has an enormously †and currently untapped †potential for reuse in new
the potential of open data. Moreover, there are practical and technical issues holding back the development of a true public data reuse market.
In particular, lack of interoperability between the information resources from different organisations and countries, and the non-availability
benefits from the new opportunities that the data offer. In addition, more support than available now is needed for R&d and innovation on data analysis and visualisation tools
206 Joined Cases C-403/08 and C-429/08, Football Association Premier League Ltd v QC Leisure and Karen
http://ec. europa. eu/information society/policy/psi/docs/pdfs/directive/psi directive en. pdf 76 These considerations have led the Commission to revise
and strengthen its public data strategy by inter alia targeting both the legal framework for reuse and available support
•Adapting the framework in favour of data reuse, including legal, soft law and policy
•Mobilising financing instruments by prioritising open data in R&d&i and infrastructure programmes •Facilitating coordination
Commission services closely monitor the information and internet sectors to ensure that market players comply with EU competition law
practices by Apple involving the iphone. Apple had made warranty repair services available only in the country where the iphone was bought,
thereby potentially partitioning the Internal Market. Moreover Apple had restricted the terms and conditions of its licence agreement with
independent developers of applications requiring the use of Apple's native programming tools and approved software languages to the detriment of third-party software.
In September 2010 following a change of policy by Apple, the decision was taken to close both investigations. 210
Similarly, on 20 november 2010 the Commission started investigations into Google following allegations of abuse of market dominance in the areas of online search, online
Statement on Apple†s iphone policy changes, IP/10/1175,25. 09.2010 available at http://europa. eu/rapid/pressreleasesaction. do?
Commission probes allegations of antitrust violations by Google, IP/10/1624 30.1.2010, available at 77
planned acquisition of Sun microsystems by Oracle. 213 The acquisition raised the issue of the competitive effect of open source software products
Interoperability of standards is also crucial for guaranteeing access to the Internal Market Against this background, on 14 december 2010 the Commission adopted its guidelines on
within the application (instead of providing a link to a website where the commercial transaction is concluded),
anticompetitive restrictions to cross-border internet marketing and sales. 215 However, certain http://europa. eu/rapid/pressreleasesaction. do?
prohibiting authorised distributors from selling over the Internet. See also the recent judgement of the ECJ
French distributors to sell its products on the Internet is compatible with the (now) Article 101 TFEU and
The same rules apply to offline and online sales. For, in the online world, suppliers can also
and require quality standards for the use of an internet site to sell their products.
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
PDF 217 Information from European union Institutions, Bodies, Offices and Agencies, European commission Guidelines on Vertical Restraints, OJ C 130/1, 19.05.2010;
PDF 79 distributor pays for units sold offline("dual pricing"),is considered also to be a hardcore
restriction. 218 In addition, the new rules specify that qualitative and quantitative selective distribution agreements are exempted not block
http://www. uncitral. org/uncitral/en/uncitral texts/sale goods/1980cisg. html 80 The EU acquis for consumer contracts contains a number of directives establishing minimum
e g. credit cards) and on charges for telephone hotlines higher than the standard telephone rate for calls.
One special issue to note is the application of the Directive to digital content (data produced
and supplied in digital form such as computer programmes, applications, games or music Contracts for the supply of digital content are within the scope of the Directive, but the right
consumer) buyers of digital content not only about its compatibility with hardware and software, but also about the application of any technical protection measures or digital rights
management, for example about a limitation on the right of the consumers to make copies of
Recent Eurobarometer surveys224 and those carried out by the European Business Test Panel EBTP) 225 and the Enterprise Europe Network226 confirm that businesses with an interest in
products, such as e-mail, social networks, music, films, e-books or e-learning services. Problems include incomplete or incomprehensible information, interrupted access to content and faulty products.
224 See Eurobarometer Flash 320, European contract law in business-to-business transactions, 2011, available at http://ec. europa. eu/public opinion/flash/fl 320 sum en. pdf and Eurobarometer Flash 321, European
contract law in consumer transactions, 2011, available at http://ec. europa. eu/public opinion/flash/fl 321 sum en. pdf
225 See: European Business Test Panel, European Contract Law survey, available at http://ec. europa. eu/yourvoice/ebtp/consultations/2010/european contract law/report en. pdf
82 selling their products cross-border rank barriers related to differences of contract law among the top barriers to cross-border trade.
The contract law-related barriers are due to the legal complexity and transaction costs associated with adaptation to and compliance with the
as they have to adapt their website to the legal requirements of every Member State they direct their activity to
would have the option of agreeing to be bound by a user friendly Common European Sales
http://ec. europa. eu/justice/contract/files/report sme panel survey en. pdf 227 See the Impact Assessment accompanying the Proposal for a Regulation of the European parliament and of
when a website contains activities directed to consumers in other Member States (see Chapter 4. 7. 4
SMES, are likely to exist in the online as in the offline sector. Other practices may be specific
PDF 232 Report from the Commission to the European parliament, the Council, the Economic and Social Committee
http://ec. europa. eu/internal market/retail/docs/monitoring report en. pdf 84 Single Market problems posed by uncoordinated proliferation.
society services beyond retailing, for example, 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, e-identification and e-authentication The legal recognition of electronic signatures and electronic authentication is crucial for
facilitating and strengthening confidence in electronic transactions. The Directive on Electronic signatures (Directive 1999/93/EC235) provides the European framework for e
-signatures. EU-legislation on the mutual recognition and acceptance of e-identification and authentication across borders is still lacking
PDF 234 Directive 2009/140/EC of the European parliament and the Council of 25 november 2009 amending
PDF 235 Directive 1999/93/EC of the European parliament and the Council of 13 december 1999 on a Community
framework for electronic signatures, OJ L 013/12, 19.01.2000; available at: http://eur -lex. europa. eu/Lexuriserv/Lexuriserv. do?
HTML 236 Report from the Commission to the European parliament, the Council, Report on the operation of Directive
1999/93/EC on a Community framework for electronic signatures, COM (2006) 120 final, 15.03.2006 available at:
PDF 85 On 2 december 2008, the Commission adopted an action plan237 to enhance cross-border e
and open to all communication channels, including the Internet and mobile communications As a first step a public consultation on e-identification, e-authentication and e-signatures was
Electronic signatures 237 Communication from the Commission to the Council, the European parliament, the European Economic and
PDF 238 Communication from the Commission to the European parliament, the Council, the Economic and Social
PDF 239 See Press release, Digital Agenda: Commission launches public consultation on esignatures and eidentification, IP/11/198,18. 02.2011, available at
a lack of payment security and data protection, and finally uncertainties relating to liability in case of unauthorised payments or unsatisfactory deliveries
development of e-commerce across Europe which, according to data from one of the major credit cards players, has 50%more bank cards than the USA but 40%smaller volume of e
telecom operators seem to be preferred the solution today The excessive cost of payments has been noted by many merchants and associations.
but also on payment intermediaries, telecom operators for m-commerce, and payment on delivery. For micro-payments, the issue of cost seems to be a
newspapers, music, movies, video games,"premium rate service",directories, and low priced event tickets Consumers also complain about the high cost of payments.
PDF 87 The cost of payments can be correlated partly to the risk of fraud, which seems to be very
significant for both online and offline payments, and is apparently more relevant for cross -border payments than for domestic payments.
payment information was mentioned recurrently by payment users in the consultation, again often in the context of potential fraud. 242
internet and mobile payments"."The Green Paper aims to assess a number of specific factors
offline The Paper is based on the premise that four drivers could significantly enhance the European
internet and mobile payments and the Green Paper provides the basis for a public consultation
with payment security and data privacy and the possibilities for improvements in this area The last part of the Green Paper touches on a crucial issue,
On 11 january 2012, the Commission has adopted a Green Paper on card payments, internet and mobile payments. 244
can be paid electronically with a simple click and without the need for manual data input
http://ec. europa. eu/internal market/payments/docs/sepa/sepa-capgemini study-final report en. pdf 89 In its Communication"Reaping the benefits of electronic invoicing for Europe",246 the
European associations representing e-invoicing users, including consumers. A first meeting took place in September 2011.
Eurostat Data In focus 46/2009: Internet usage in 2009-Households and Individuals available at http://epp. eurostat. ec. europa. eu/portal/page/portal/product details/publication?
p product code=KS-QA-09 -046 90 Delivery links the two sides of the e-commerce chain.
the e-commerce service they provide to their end users. On the other side("addressee aspect"),there are the end users purchasing items online who seek reliable retailers selling
goods which suit their needs and can be delivered efficiently Enhancing the trust in delivery services to promote consumers'overall confidence in using the
http://ec. europa. eu/internal market/post/doc/studies/2009-wik-evolution en. pdf (hereafter ITA/WIK 2009.
http://ec. europa. eu/internal market/post/doc/studies/2010-main-developments en. pdf 253 Eurostat Data In focus 46/2009:
Internet usage in 2009-Households and Individuals, available at http://epp. eurostat. ec. europa. eu/portal/page/portal/product details/publication?
p product code=KS-QA-09 -046 91 In general, the e-commerce consultation highlighted several problems in postal services
http://ec. europa. eu/internal market/post/doc/legislation/2008-06 en. pdf 92 Although parcel and express delivery services have been open to competition for some
ensure a high quality of (basic) parcel service as well as a high level of postal users 'protection. With regard to these regulatory measures, a distinction needs to be made between
Based on available data one can observe that-with the exception of Greece, where 7%of the population does not have five
http://ec. europa. eu/internal market/post/doc/studies/2009-wik regulators. pdf 260 See above reference:
Postal users'protection measures Article 19 of the Postal services Directive obliges Member States to ensure the existence of
complaint procedures for all postal users, particularly in cases of loss, damage, theft or non
Additionally, where users'complaints to businesses providing postal services within the scope of the universal service have not been resolved satisfactorily,
postal users may bring these cases before the competent national authority (Article 19 (2)).While this provision is
therefore to ensure a high level of user protection, and to develop and facilitate the use of independent out-of-court schemes for the resolution of
disputes between postal services providers and users while taking into account the cross -border dimension. 264
The increased demand for more flexible and user friendly delivery solutions has been impacting the delivery sector significantly.
which allow users to collect their parcels even after the local post office has closed or outside working hours.
and RFID significantly contribute to the optimization of the delivery chain processes (e g. sorting; delivery), which can subsequently be reflected in
imperative that Article 19 of the Postal services Directive and the user's possibility to complain to the postal service provider is implemented efficiently and that adequate
Parliament on 9 september 2010268, Commission services has organized the first Postal Users Forum for 12 december 2011.269 The forum encouraged users to reflect on their experience
with postal delivery services and identify possible shortcomings that would call for further initiatives In 2012, Commission services will prepare a report on the application of the USO derogations
•organize annually a Postal Users Forum (first Forum took place on 12 december 2011 •publish a sectoral study regarding the cross-border provision of parcel delivery
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
remedies that e-commerce users could resort to if necessary. As a result of specific problems in electronic commerce and the absence of knowledge of relevant remedies, the parties may
online and offline disputes The public consultations both on the future of e-commerce and on ADR273 revealed strong
Most of the existing ADR schemes do not make a distinction between online and offline
and ADR schemes communicate during the whole procedure through a web-based system in order to resolve disputes.
telecommunications). ) Certain consumer protection associations have developed tools to assist consumers to quickly and effectively find solutions, outside the judicial system
disputes for transactions between businesses and consumers taking place over the Internet. Its partners which include universities,
Disputes and can be used be used both by individual consumers/users and by enterprises http://www. risolvionline. com
future. 285 This evidence is further reinforced by data on the satisfaction levels of businesses
In some other sectors, such as telecoms, energy, and consumer credit, EU legislation obliges Member States to establish ADR schemes
http://ec. europa. eu/consumers/redress cons/docs/cons redress eu qual study report en. pdf 284 The Gallup Organization for DG Communication, Flash Eurobarometer 300, Retailers†attitudes towards
cross-border trade and consumer protection, March 2011, p 79, available at http://ec. europa. eu/public opinion/flash/fl 300 en. pdf
285 European Business Test Panel (EBTP) survey, Alternative Dispute Resolution, 2010-11 http://ec. europa. eu/yourvoice/ebtp/consultations/2010/adr/report en. pdf
286 EBTP statistics available at: http://ec. europa. eu/yourvoice/ebtp/consultations/2010/adr/statistics en. pdf
287 Preliminary results on a study on the development of e-commerce in the EU 288 Commission Recommendation 98/257/EC on the principles applicable to the bodies responsible for the out
-of-court settlement of consumer disputes, OJ L 115,17. 04.1998, p. 31, available at: http://eur
PDF 289 Commission Recommendation 2001/310/EC on the principles for out-of-court bodies involved in the
http://ec. europa. eu/consumers/redress/out of court/adr/acce just12 en. pdf 99 consumers the possibility to conduct the entire procedure online.
Internet purchases continue to be the main source of consumer cross -border complaints making up 56%of all complaints addressed to the ECC-Net in 2010
PDF 100 4. 7. 2 European Small Claims Procedure Due to the large backlog of cases and the time and cost that traditional means of resolving
transactions has offered not always a satisfactory solution for e-commerce users. Moreover online legal services are underdeveloped and in many cases nonexistent
The relevant forms were made not available on the premises or the websites of 41%of the courts visited.
PDF (N. B. This Regulation does not apply to Denmark 294 The form is available from the European Judicial Atlas
http://ec. europa. eu/justice home/judicialatlascivil/html/sc filling en. htm 295 TNS Opinion & Social at the request of DG JUST, Special Eurobarometer 351:
http://ec. europa. eu/public opinion/archives/ebs/ebs 351 en. pdf 296 Draft ECC-Net Joint Project on the European Small Claims Procedure
Responses to the consultation indicated that e-commerce users have different views on collective redress. While some are in favour of collective redress for the resolution of disputes
internet actors are resident in two different Member States or even outside the EU Determining the competent court and the applicable law as well as the recognition and
PDF 300 Regulation (EC) No. 593/2008 of the European parliament and of the Council of 17 june 2008 on the law
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
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.
Reederei Karl Schlã ter through a German travel agency specialising in the internet sale of voyages by freighter.
PDF 302 Joined Cases C-585/08 and C-144/09, Peter Pammer v Reederei Karl Schlã ter Gmbh & Co KG (C-585/08
The European Court of Justice ruled that mere use of a website by a trader in order to engage
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
the inclusion of telephone numbers with an international code; use of a top-level domain name other than that of the Member State in which the trader is
Likewise, if the website permits consumers to use a language or a currency other than that generally used in the trader†s Member State, this can also constitute evidence
On the other hand, the mere mentioning on a website of the trader†s email address or geographical address,
or of its telephone number without an international code, does not constitute evidence of this kind
whether it is apparent from the traders†websites and overall activity that they were envisaging
PDF 305 Council Directive 77/388/EC of 17 may 1977 on the harmonisation of the laws of the Member States
HTML 105 Finally, VAT rates discriminate between physical and digital cultural goods. Whilst for certain cultural goods, Member States have the option to apply a reduced VAT rate (minimum
PDF 307 Commission Communication on the future of VAT, Towards a simpler, more robust and efficient VAT
m 2011 851 en. pdf 308 See the Council†s Multi-Annual European e-Justice Action Plan 2009-2013,2009/C 75/01, 31.3.2009
PDF 106 •The new fund for the"Connecting Europe Facility"proposed by the European
evidence shows that the digital economy has positive effects on the environment For example, compared to a traditional CD purchase in a"brick and mortar"shop, the
field of online and offline movie rental came to the same conclusions despite the fact that in the online movie rental business the DVDS were delivered still. 312
E-commerce and other modern technologies can also help to communicate to consumers the environmental performance of the products they buy more clearly, efficiently and effectively
-2014/president/news/speeches-statements/pdf/20111019 1 en. pdf 310 See for details the Public Procurement web-page of DG MARKT
Final Report to Microsoft Corporation and Intel Corporation, 2009, p. i, available at http://download. intel. com/pressroom/pdf/cdsvsdownloadsrelease. pdf
312 Marcelo Velã¡squez, A comparative study of the environmental impact of the online and offline movie rental
business, 2009, available at http://dalspace. library. dal. ca: 8080/bitstream/handle/10222/12737/MEC%20thesis%20marcelo%20v
ELASQUEZ. pdf? sequence=1 107 of transporting products to consumers. A study commissioned by FEVAD313, in France
E-commerce and the Internet have an inherently global dimension, but rules on e-commerce are fragmented still very much both across Europe and worldwide.
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. Life cycle Comparison of Traditional Retail and E-commerce Logistics for Electronic Products: A case study of buy. com, Green Design Institute at Carnegie mellon University, December 2008
http://www. ce. cmu. edu/greendesign/research/Buy com report final 030209. pdf 315 http://ec. europa. eu/environment/waste/weee/index en. htm
-communication-en. pdf 317 See Recital 58, ECD 108 also arise in the context of notice-and-takedown procedures.
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
Despite the usefulness of several multilateral dialogues on e-commerce, the Commission believes that e-commerce could benefit from intensifying multilateral dialogues
the WTO/GATS, OECD and the Internet Governance Forum 110 ANNEX I: TRANSPOSITION OF DIRECTIVE 2000/31/EC IN THE EUROPEAN
http://aplikace. mvcr. cz/archiv2008/sbirka/2003/sb037-03. pdf 2. Zákon Ä. 151/2002 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2002/sb061-02. pdf 3. Zákon Ä. 138/2002 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2002/sb057-02. pdf 4. Zákon Ä. 135/2002 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2002/sb057-02. pdf 5. Zákon Ä. 317/2001 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2001/sb122-01. pdf 6. Zákon Ä. 370/2000 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2000/sb100-00. pdf 7. Zákon Ä. 367/2000 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2000/sb099-00. pdf 8. Zákon Ä. 227/2000 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2000/sb068-00. pdf 9. Zákon Ä. 356/1999 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1999/sb111-99. pdf 10. Zákon Ä. 63/1999 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1999/sb026-99. pdf 11. Zákon Ä. 286/1995 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1995/sb74-95. pdf 12. Zákon Ä. 40/1995 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1995/sb08-95. pdf 13. Zákon Ä. 216/1994 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1994/sb67-94. pdf 14. Zákon Ä. 264/1992 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1992/sb056-92. pdf 15. Zákon Ä. 513/1991 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1991/sb098-91. pdf 16. Zákon Ä. 509/1991 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1991/sb097-91. pdf 17. Zákon Ä. 455/1991 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1991/sb087-91. pdf 18. Zákon Ä. 202/1990 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1990/sb035-90. pdf 19. Zákon Ä. 40/1964 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1964/sb19-64. pdf 20. Zákon Ä. 99/1963 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/1963/sb56-63. pdf 21. Zákon Ä. 500/2004 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2004/sb174-04. pdf 116 22. Zákon Ä. 480/2004 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2004/sb166-04. pdf 23. Zákon Ä. 235/2004 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2004/sb078-04. pdf 24. Zákon Ä. 167/2004 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2004/sb057-04. pdf 25. Zákon Ä. 18/2004 Sb.
http://aplikace. mvcr. cz/archiv2008/sbirka/2004/sb007-04. pdf 26. Zákon Ä. 127/2005 Sb.
*%5b%40attr id%3d'bgbl101s3137. pdf'%5d&wc=1&skin=WC 2. Teledienstegesetz Legal act: Gesetz; Official Journal: Bundesgesetzblatt Teil 1 (BGB 1), Publication
*%5b%40attr id%3d'bgbl101s3137. pdf'%5d&wc=1&skin=WC 3. Concordance table Legal act: Concordance table; Reference:(
*%5b%40attr id%3d'bgbl101s3137. pdf'%5d&wc=1&skin=WC 5. Gesetz uber rechtliche Rahmenbedingungen fã r den Elektronischen
*%5b%40attr id%3d'bgbl101s3137. pdf'%5d&wc=1&skin=WC 6. Umsetzung von Art. 10 und 11 der RL:
*%5b%40attr id%3d'bgbl101s3137. pdf'%5d&wc=1&skin=WC 7. Umsetzung von Art. 20 der Richtlinie:
http://www. irishstatutebook. ie/2003/en/si/0068. html Greece Transposition deadline: 17/01/2002 1. Acte lã gislatif 131 FEK A nâ°116 du 16/05/2003 p. 1747
http://www. et. gr/index. php? option=com wrapper&view=wrapper&itemid=104& lang=en Spain Transposition deadline:
http://noticias. juridicas. com/base datos/Admin/l34-2002. html France Transposition deadline: 17/01/2002 1. Loi nâ°575 du 21/6/2004 pour la confiance dans l'Ã conomie numã rique
http://admi. net/jo/20050617/JUSX0500112R. html 125 3. DÃ cret nâ°2005-137 du 16/2/2005 pris pour l'application de l'article L. 134-2 du
8a/$file/4135%2018.7.2007%20parartima%201o%20meros%20i. pdf 2. Î Î Î Ï Î Î Ï Î Ï Î Î Î Ï Î Î Ï Ï Ï Ï
http://www. likumi. lv/doc. php? id=109879&from=off 2. Patä rä tä ju tiesä bu aizsardzä bas likums
http://www. likumi. lv/doc. php? id=23309 3. Par reglamentä tajä m profesijä m un profesionä lä s kvalifikä cijas atzä Å¡
http://www. likumi. lv/doc. php? id=26021 4. Latvijas Republikas Civillikums Legal act: Likums; Official Journal:
http://www. vvc. gov. lv/export/sites/default/LV/publikacijas/civillikums. pdf 5. Informä cijas sabiedrä bas pakalpojumu likums
http://www. likumi. lv/doc. php? id=96619 6. Grozä jumi Patä rä tä ju tiesä bu aizsardzä bas likumä
http://www. likumi. lv/doc. php? id=221390 127 Lithuania: Transposition deadline: 01/05/2004 1. Lietuvos Respublikos informacinä s visuomenä s paslaugå Ä statymas Nr.
http://www. regitra. lt/uploads/documents/dokumentai/istat lr info pasl. pdf 2. Lietuvos Respublikos informacinä s visuomenä s paslaugå Ä statymo 4, 18,19
http://www. legilux. public. lu/leg/a/archives/2000/0096/a096. pdf Hungary Transposition deadline:
http://www. parlament. hu/irom38/05448/05448. pdf 2. 2003. Ã vi C. tã rvã ny az elektronikus hã rkã zlã srå‘l
-osszefuggo. html Malta: Transposition deadline: 01/05/2004 1. Electronic commerce Act 2001 (Chapter 426 of 2001
https://secure. gov. mt/e-procurement/pdfs/chapt426. pdf 2. LE {ISLAZZJONI SUSSIDJARJA 426. 02regolamenti DWAR IL
http://cdn. ikregeer. nl/pdf/stb-2004-210. pdf 2. Besluit van 18 juni 2004, houdende vaststelling tijdstip van inwerkingtreding van
http://cdn. ikregeer. nl/pdf/stb-2004-285. pdf Austria Transposition deadline: 17/01/2002 1. Regelung bestimmter rechtlicher Aspekte des elektronischen Geschã¤fts-und
http://mediarun. pl/files/attach/2007/05/1178548615. pdf 2. Ustawa z 23 kwietnia 1964 Kodeks Cywilny
relativa a certos aspectos legais dos serviã§os da sociedade de informaã§Ã£o, em especial do comã rcio electrã nico, no mercado interno
http://www. cnpd. pt/bin/legis/nacional/DL62-2009-SPAM. pdf 2. Decreto-Lei nâ°7/2004 de 7/1 Diã¡
http://www. cnpd. pt/bin/legis/nacional/DL7. 2004. pdf Romania Transposition deadline: 01/01/2007
http://www. legi-internet. ro/legislatie-itc/comert-electronic/legea-comertului -electronic/legea-nr-121-din-4-mai-2006-pentru-modificarea-i-completarea-legii
-nr-3652002-privind-comerul-electronic. html 2. Lege privind comerå£ul electronic Legal act: Lege, number: 365;
http://www. legi-internet. ro/index. php? id=22 132 3. Lege privind unele mä suri pentru asigurarea tranparenå£ei à n exercitarea
http://legislatie. resurse-pentru-democratie. org/161 2003. php Slovenia Transposition deadline: 01/05/2004 1. Zakon o spremembah in dopolnitvah Zakona o varstvu potroå¡
http://zakonodaja. gov. si/rpsi/r05/predpis zako5065. html 2. Zakon o elektronskem poslovanju na trgu (ZEPT
http://zakonodaja. gov. si/rpsi/r00/predpis zako4600. html 3. Zakon o varstvu potroå¡nikov-uradno preä iå¡
http://www. finlex. fi/pdf/sk/02/vihko072. pdf 2. Laki yksityisyyden suojasta televiestinnã¤ssã¤ja teletoiminnan tietoturvasta
http://www. finlex. fi/pdf/sk/02/vihko072. pdf This has been replaced by"Sähkã isen viestinnã¤n tietosuojalaki (516/2004
http://www. finlex. fi/pdf/sk/02/vihko072. pdf This has been replaced by"Laki kuluttajansuojalain 2 luvun muuttamisesta
http://www. finlex. fi/pdf/sk/02/vihko072. pdf Sweden Transposition deadline: 17/01/2002 1. Lag om elektronisk handel och andra informationssamhã¤llets tjã¤nster SFS
http://www. notisum. se/rnp/sls/sfs/20020562. PDF United Kingdom Transposition deadline: 17/01/2002
http://www. althingi. is/lagas/127b/2002030. html Liechtenstein 1. Gesetz vom 16 april 2003 à ber den elektronischen Geschã¤ftsverkehr (E-commerce
http://www. lovdata. no/all/hl-20030523-035. html 137 ANNEX II: NATIONAL LEGISLATION ON"NOTICE AND ACTION"PROCEDURES
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 telephone number
and electronic mail address of rights holder Information on -noticeprovider -protected work -IPR holder -nature
infringement -location infringing material -declaration that content is terrorism-related -order to secure that content is not
-IP ADDRESS, port number, website protocol, or Unique infringement The ISP must be notified of the
decision of the Section and in case of non -compliance of the judicial order which authorizes
-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
In the L'Orã al vs. ebay case the European Court of Justice accepts, in principle, the compatibility of effective and proportio
A similar case, on the compatibility of such a filtering obligation for a social network, is currently pending before the ECJ
4. 1. 2 Personal data protection 4. 1. 2. 1 Personal data protection in the online environment
4. 1. 2. 2 Spam and the eprivacy Directive 4. 1. 2. 3 Cookies and the eprivacy Directive
4. 1. 2. 5 Data protection Directive 4. 1. 3 Online gambling 4. 1. 4 Online pharmacies and other health issues
4. 2. 1 Price comparison websites 4. 2. 2 Restrictions on advertising 4. 2. 3 Unfair commercial practices
Postal users'protection measures 4. 6. 4 Market trends and enhanced application of the EU postal legislation
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