E-Commerce Directive 2000/31/EC - Article Example

E-Commerce Directive 2000/31/EC EU (European Union) has turned into a powerful force in the beginning of policy enlargement by several different regions for its member Nations. The EU has offered a lawful structure for E-Commerce. The formation of this legal structure was done through a sequence of directives coupled with the objective of generating a distinct European market. Directive 2000/31/EC formed the fundamental lawful structure for E-Commerce (electronic commerce) in the Internet marketplace. The directive abolishes barriers to cross-boundary services in the Europeans and offers lawful assurance to the industry and national. “Directive 2000/31/EC applies to all information society services within the meaning of Art.1 Nr.2 Directive 98/34/EC, which means basically to all online-services, such as the sale of goods and services, electronic newspaper, search-engines, discussion-groups and so forth.” (Collins 2004, p.55). The effort of European Commission in this particular lawful structure consists of: Assessing and taking notes of the Directive 2000/31/EC Assessing of lawful, technological and monetary growth of Internet and E-Commerce. Proper follow-up to grievances concerning information regarding humanity services. Both present and fresh member Nations will properly apply and concern E-Commerce’s lawful structure as offered by the Directive 2000/31/EC. Electronic commerce directions synchronize state law by means of information culture services. Distinct market theories were accepted as being vital to the sustained expansion and rule of the segment, and to make sure its effectiveness and assurance. “Electronic Commerce Directive which was adopted in 2001 established an internal market framework for electronic commerce. The Directive also established harmonized rules on issues.” (Chen & Fadlalla 2008, p.329). The main aim of the E-Commerce Directive 2000/31/EC is, to stimulate the monetary development, eliminate lawful barriers to the internet marketplace, enlarge the society rule to information activities with no injustice to the accessible point of security for community health and customers concern. The principles also concern various on-line activities such as medicines and all. For ex:”the use of electronics cancer registration files by physicians who pay a fee for accessing the file, the setting up of a web site of a physician promoting his activities, the sending of medical information among physicians for compensation.” (Hervey & McHale 2004, p.166). E-Commerce Directive 2000/31/EC helps to offer good lawful structure for the information services of society, particularly in the Internet marketplace and also in generating circumstances for e-commerce to develop the European Union. E-Commerce Directive (2000/31/EC) into UK rule, meant at promoting, makes use of the superior e-commerce. “The provision of the E-Commerce Directive takes priority over those of Directives 2005/29/EC on Unfair Commercial Practices.” (Hilty & Henning-Bodewig 2007, p.123). E-Commerce Directive 2000/31/EC brings with it various codes and responsibilities to attain a high customer safeguard. All these methods make sure that the customer is usually well knowledgeable and obtains similar standard of safeguard from all the places in EU (European Union). The member nations must be determined and to make sure efficient execution and application of all the responsibilities occurring from the directive this is put into practice and they moreover initiate or concern approval. These approvals are mostly grounded on state rules of the member nations and all these member states are different significantly. Even though the member Nations must take essential steps for execution of the instructions or directive, the realistic execution is extremely imperfect and wants more attempts. “The principle of country of origin as a conflict-of-laws provision in the E-Commerce Directive and the Australian ECG is of crucial importance, on the other hand international law of fair trade.” (Moens 2005, p.97). E-Commerce Directive seeks to donate to the appropriate performance of the interior market by guaranteeing a smooth flow of the information regarding humanity services between the member nations. The state conditions the information on humanity services by relating to the interior marketplace and through the creation of service contributors. The Directive does not concern actions acquired in the society or state point with regard to the society level rule on order to uphold intellectual and linguistic variety and to make sure the defence of pluralism. EU E-Commerce Directive 2000/31/EC creates a protected shelter rule for hosting contributor or providers. The Article 14 of the Directive 2000/31/EC states that hosting contributors are not accountable for the content they host as they are not well-versed of its unlawful nature and also because of their performance at the appointed time of it. Article 15 excludes member nations from imposing common duties for possible unlawful actions. “Section4 (Article 12-15) of the Directive deals with both criminal and civil liability of providers of such services. The Directive insists on the different level of immunity for those who take on the different roles in access to Internet content.” (Snijders & Weatherill 2003, p.71). A service provider has certain obligations to take up things under certain situations in respect of stopping or ending the unlawful actions. The directive helps to support the growth of speedy and consistent measures for eliminating and disabling right of entry to unlawful information. Such methods also act as the foundation of voluntary contract among every party pertaining to, and that must be promoted by the Member nations. The provision of the Directive narrating to the responsibility of the service provider does not in any manner excludes the growth and efficient procedure by the various parties of the scientific system of safeguard. “Liability of the service providers is only excluded, under certain circumstances, in cases of ‘mere conduct’, ’cashing’, ’hosting’, as those terms are specifically described in the Directive.” (Drossos et al. 2009, p.71). All the contented falling within the exception would be overseen and circulated during a sole platform. Ex: In the case of imitation for educational and community establishment, for example libraries and all, somewhere the consumers should be recognized as a member of the same group. Article 15 states that the member nations have no authority to enforce a common duty on the providers while offering the services which comes under articles 12, 13 and 14 to supervise the data that they pass on or pile up and also cannot impose a common responsibility to inquire about the situations representing unlawful action. ”Online Service Provider Liability (Article 12): where a service provider is a mere conduit for materials posted by someone else and does not initiate the transmission, select the recipient, or modify the information, the service provider will not be liable. This limitation on liability covers service providers that (1) transmit information provided by a user or (2) provide access to a communications network.” (Plotkin, et al. 2003, pp.13-16). Since a large number of individuals of all ages including children have access to the information stored in the network, there is a need to place restrictions as to the quality of the content. Crimes like child pornography are increasing in the present days and there is a need to scrutinize the contents in order to see to it that the contents are not illegal and prevent them from causing harm to the society in any way. “The provisions of Article 15 (Requirements to be evaluated) will necessitate a valuable and urgent review of Individual Member States’ provisions, which act as impediments to the provisions of Inter-Member state services.” (Completing the internal market in services: 6th report of session 2005-06; report with evidence, 2005, p.10). According to the directives, the member nations are not permitted to impose a common duty on the intermediate service providers to scrutinize the substance which is passed on through their network, but a common requirement like this may possibly jeopardize the objective of the Directive to establish smooth progress of the economic condition of the interior market and is inconsistent with the primary guarantees of the citizens. “The complementary provisions of Article 5(1)(a) of InfoSoc Directive and Articles 12 to 15 of the 2000 Electronic Commerce Directive restrict, under certain clear conditions , the liability of ISPs acting as mere conduits , caching and hosting service providers for the communication of infringing material.” (Mazzittoi 2008, p.64). Several member nations have decided not to bring it within their State laws because the provision does not propose to offer persons and activities with accurate responsibilities but simply prevents a nation from establishing a common responsibility to regulate. This approach may cause difficulties in the long run since there is an increasing demand for proper regulations because of factors like patent piracy, libel, misguiding ads, unjust trading methods and other problems. “It is submitted that, at the very least, provider liability rules as expressed in articles 12-15 of the Directive (implemented by sections 8-11 of the Teleservices Act 2001) are covered by provider origin rule, beyond that it seems doubtful whether the provider origin rule applies to all tort liability. Arguably, one might distinguish between intentional and negligent behaviour (intentional behaviour; ordinary conflicts rules, negligent behaviour; provider origin rule), but there is no indication of such a distinction in the text of the Act or of the Directive.” (Kono et al. 2002, p.38). The laws have to be clear enough and there is always a rational requirement that the laws have to distinguish the offences which are negligently done and those which are done with an intention and it is always seen to it by the law makers that the intentionally done acts are separated from negligent acts and if it is done wilfully, the person committing the offence has to be punished with stricter laws. But these Articles in the Directive have failed to make such a distinction and have been unsuccessful in providing the requirement of a justifiable provision. If there is no such distinction, there is always a possibility that the individuals who commit these offences wilfully can get protection under these provisions by pleading that the possession of the digital content was without their knowledge. Such protections given to the offenders can cause number of crimes in this area to increase to a greater extent and cause harm to the society as a whole. But this cannot be seen lightly because in the present days there is a call for more restrictions in this area and new crimes are also evolving. So a well defined distinction has to be made between acts committed without awareness and those committed with willful intent. “While the latter comment tends to focus on the technical activity of providing server space, the fact remains that providing protection for storage while not protecting the serving up of information from storage is, in the context of providing information society services, no protection at all.” (Smith & Boardman 2007, p.382). The new changes in technology and knowhow has paved way for improving the laws related to copyrights and patents. The effect of these novel methods has been considered by most of them as limiting the utilizing of the digital data since they consist of the using of technology in order to see to it that the patents are not misused. In order to protect third party intellectual property rights in respect of digital media content accessed via the internet e.g.; through sites such as U-tube or other on line contents providers, laws have to be made to see to it that patents, service mark and emblems are used only with the prior consent of the owners. The punitive laws lay down a legal responsibility for possessing unlawful digital substance. Such laws result in a liability to impose a common responsibility to regulate because intermediates can be in contravention of these State laws when they possessed unlawful contents sometimes without their awareness. The defect in Article 15 has created ambiguity. This Article provides complete non-liability for the intermediary service providers from compensation and other obligations. The complete exemption provided here is baseless. The directive also does not bring within its ambit, electronic adaptation of the newspapers. “Article 15(1) only allows derogations when the restriction constitutes a necessary measure within a democratic society. The central issue here is whether the damages caused to the cultural industry by the exchange of protected work in peer-to-peer networks constitutes a sufficient threat to copyrighter’s interests so as to justify justify restrictions to the right of secrecy of correspondence.” (Papadopoulos et al. 2009, p.343). It is obvious that the unlawful data distribution affects copyright. It has become a controversial issue whether personal file-sharing causes danger to the preservation of patent rights and as to whether there is need to restrict the liberty of expression. The amount of damage caused by personal file-sharing in this area has to be properly assessed. Personal file sharing cannot be treated like that of persons who do planned copying. Serious problems have been caused in many nations and these could not be properly resolved because of the loopholes in the provisions. “Article 13 of the E-commerce Directive provides that internet service providers will not be liable for breach of copyright or other intellectual property rights by caching or storing of the information on the internet as long as they comply with any conditions of access to the information imposed by the owner and do not modify the information.” (Crone et al. 2002, p.73). Due to the expansion of rapidity of the internet contact and emergences of work composition know-how, it permits the client to secretly transfer documents. This unlawful transfer creates lot of trouble in the era of the digital media. The term copy right is explained with the expression of intellectual property all along with terms such as trademark and patent. Copyright is the cluster of restricted rights endowment to the writer or originator of an innovative work, consisting of the right to copy the innovative work, deal out and adapt the innovative work. So these exclusive rights are approved, transferred and allocated. “The legal protection against circumvention of technological protection measures has surreptitiously produced a form of right of access and has designed a framework that rights owners utilize to control the management of content.” (Lucchi 2006, p.4). The area of copyrights and patents are a developing one which protects and promotes inventions and the intellectual property of certain individuals who contribute to the society by their novel discoveries. Eventually it has become a universal need to protect these inventions and promote the individuals who create such inventions which may be of great significance in the field of science, medicine etc. Therefore the e-commerce directives should also be adapted in order to see to it that intellectual property rights are also preserved. “Compliance with fair information practices for the 6 electronic commerce transfers is wholly dependent on whether the jurisdiction has a comprehensive data protection law.” (Rowland 2005, p.390). Reference List Chen, K. & Fadlalla, A., 2008. Online consumer protection: theories of human relativism. [Online] Idea group inc (IGI) p.329. Available at: http://books.google.co.in/books?id=KhJDgh0tnmIC&pg=PA328&dq=Directive+2000/31/EC&cd=7# [Accessed 10 Apr 2010]. Collins, H., 2004. The forthcoming EC directive on unfair commercial practices. [Online] Kluwer law international, p.55. 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[Online] Routledge Cavendish, p.390. Available at: http://books.google.co.in/books?id=VtTiR8niBEC&pg=PA390&dq=commentaries+on+e-commerce+directive+2000&lr=&cd=32#v=onepage&q&f=false [Accessed 10 Apr 2010]. Smith, G J H. & Boardman, R., 2007. Internet law and regulation. [Online] Sweet & Maxwell, p.382. Available at: http://books.google.co.in/books?id=XQPamDwY1aIC&pg=PA382&dq=commentaries+on+e-commerce+directive+2000&cd=6#v=onepage&q&f=false [Accessed 10 Apr 2010]. Snijders, H J. & Weatherill, S., 2003. Ecommerce law: national and transnational topics and perspectives. [Online] Kluwer law international, p.71. Available at: http://books.google.co.in/books?id=SlIiX6-bplsC&pg=PA70&dq=provisions+of+E-Commerce+Directive+2000/31/EC&lr=&cd=11#v=onepage&q=provisions%20of%20E-Commerce%20Directive%202000%2F31%2FEC&f=false [Accessed 10 Apr 2010]. Read More