Ireland was among 12 Member States that missed the EU's January 2002 deadline for implementation of the Directive. The UK implemented it in August 2002.
The new Regulations provide for the free movement of Information Society services within the European Economic Area. These are essentially services (as distinct from products) provided on-line between one Member State and another.
The basic provision of the Regulations is that service providers who comply with the rules and regulations of their own Member State do not have to comply with the rules and regulations for that service laid down by any other Member State to which they might be supplying the service. There are, however, significant exceptions to that general rule, most notably in the area of consumer contracts.
Another important provision from the point of view of the consumer's perspective is that the Regulations require people sending unsolicited commercial e-mail – or spam – to ensure that these are clearly identifiable by the recipient.
The Tánaiste confirmed that her Department is in discussions with the Irish Direct Marketing Association (IDMA) regarding the use by the IDMA's members of the letters "ADV" (advertisement) or "UCE" (unsolicited commercial e-mail) on the subject line of an unsolicited e-mail that are issued to persons with whom they have never previously had a commercial relationship. This would reflect the position in the US, where the laws of a number of states provide similar requirements. It would also be an improvement on the UK situation, where there is no guidance on how to make notice of adverts consistent. Only with consistency of approach can e-mail filters be instructed to identify and remove spam effectively.
The Regulations create an exemption from liability for ISPs for information transmitted by them in certain respects and circumstances. The Department intends to have discussions with the ISPs and intellectual property interests in relation to the practical operation of these provisions of the Regulations. The adoption of codes of practice to supplement certain provisions, including those relating to the liability of intermediary service providers, is encouraged by the EU Directive itself.
The Regulations also -
require persons providing Information Society services to provide certain information about themselves and the services they provide in the interests of transparency;
permit members of certain professions to engage in Information Society services provided they respect the rules of their professions such as fairness towards clients and other members of their profession;
provide for co-operation between Ireland and the other Member States in relation to Information Society issues covered by the Regulations;
provide for information to be given to persons providing and receiving Information Society services; and
provide that failure to comply with certain provisions is an offence prosecutable by the Director of Consumer Affairs or, in respect of the UCE provisions, the Data Protection Commissioner.
The Directive itself is available at:
www.entemp.ie/ecd/02website003.pdf
The Irish Electronic Commerce Act 2000 is available at:
www.entemp.ie/ecd/02website004.pdf
For guidance on the equivalent UK law, see our OUT-LAW article, The UK's E-commerce Regulations.