Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ("directive on e-commerce") should have been implemented per 17 January 2002. This appeared to be unfeasible for the Dutch legislator. Only on 23 January 2002 the Dutch government has presented the legislative proposal for the implementation of the Directive on e-commerce ("legislative proposal on e-commerce"). By this legislative proposal, the directive on e-commerce will be transposed into the Dutch civil and penal code and the Economic Offences Act, wherever possible in a technology neutral way.
The legislative proposal on e-commerce
The legislative proposal on e-commerce contains provisions that support the freedom to provide on-line services. In principle, electronic commerce will only be subject to the legislation of the country where the service provider is established ('home-state control' - principle). Service providers established in The Netherlands should therefore exclusively comply with the Dutch legislation. Other member states are, in principle, not allowed to restrict the provision of services to their citizens by service providers from The Netherlands. Thus, Internet service providers are prevented from being subject to divergences in the legislation of various member states, as a result of the fact that their website is accessible from these member states. For companies established in The Netherlands, access to the entire European market will therefore be assured, provided that their on-line services are in conformity with Dutch law.
Moreover, the legislative proposal on e-commerce supports the freedom to provide services by electronic means. The provision of electronic services is not subjected to a prior permit or similar authorisation. Furthermore, almost all obstacles for on-line contracting are lifted. Contracts concluded by electronic means will have the same legal effectiveness and validity as written contracts, provided that:
- Such contract can be consulted by both parties, and
- The authenticity of such contract is secured, and
- The moment of formation of the contract can be established with sufficient certainty, and
- The identity of the parties can be established with sufficient certainty.
In order to improve transparency and thus the confidence in electronic commerce, the legislative proposal on e-commerce imposes information requirements on service providers. These requirements apply both to business-to-consumer and to business-to-business relations (which is contrary to the information requirements in the Distance Selling Act, which only apply to transactions in business-to-consumer relations). Next to a general information requirement for anyone who provides on-line services, the legislative proposal on e-commerce also contains specific information requirements for those, who send commercial communication or intend to conclude agreements by electronic means. The information requirements in the legislative proposal on e-commerce are in addition to other information requirements established by Community law. A company that renders on-line services to consumers should therefore take both the information requirements arising from the legislative proposal on e-commerce and from the Distance Selling Act into account.
Finally, the liability of service providers acting as intermediaries is clarified. In some situations, namely in the event of 'mere conduit', 'caching' and hosting, the intermediary service provider is exempted from liability for illegal information from third parties, provided that certain conditions are fulfilled. Furthermore the legislative proposal makes clear that the intermediary service provider is generally not obliged to monitor the information distributed via its server or to actively seek facts or circumstances indicating illegal activity.
After coming into effect of the legislative proposal on e-commerce, service providers will have more certainty as to which national rules apply to the services they provide, to the validity of contracts concluded by electronic means, and to the liability of intermediary service providers. This will certainly facilitate e-commerce. In a way, the legislative proposal will also restrict the service provider, as it imposes some obligations on him, including obligations relating to the provision of information to the recipients of the service.
The directive on e-commerce can be accessed via the following hyperlink: