Summary
Summary Lecture 6
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Lecture of the LL.M. Master course Global E-commerce and Internet Liability
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Lecture 6Rather than being the lawyer saying that you need an opt-in, you need to think with them. Think in
behavioural sciences how people will give consent in a natural user flow way rather than pop-ups.
EU legal framework
Started with e-commerce directive. Consumer rights directive replaces distant selling and distant
marketing (telemarketing was also distant selling). Unfair terms directive and the directive on
consumer guarantees can impact how user T&C look like on the choice of law, different court or
arbitration. EU Regulation for electronic identification and trust services that replaces the electronic
signatures directive. Needing extra requirements (ISP and persons that need to verify) as they want
to make sure you’re the actual person you say you are. The payment structure replaced the whole
electronic identification part; your credit card already identified you. The ADR Directive is telling MS
to set up ADR institutions for online dispute resolution for consumer disputes, since the regular court
system is not suitable for small e-commerce situations about small amounts of money. Online
traders had to put links to those institutions on their website. Regulation on online dispute resolution
for consumer disputes (ODR) is related to it as well.
Digital Single Market issued two Directives which are still drafts. Supply of Digital Content and Online
Sales of Goods (not on fast track because of hurdles in different MS), but the Consumer Rights
Directive regulates both online and offline protection of consumers in sales of goods. Contract law is
most old form of law and most civil codes resist replacement. Directives give a maximum level of
protection and maximum of harmonization so MS cannot impose stricter requirements whereas
most MS have more protections in their national law, so they don’t want to give up the level of
protection through EU harmonization.
Supply Digital content falls outside current sales of goods requirements in many cases. Most
countries don’t have consumer protection for services in the cloud, making it all up to the contract
then.
Always make the distinction between B2B and B2C. In many cases, there are rules that apply to both
and on top of that, there is consumer protection. So, also in B2B rules apply but mostly they are less
strict and businesses can contract out of it.
Electronic Commerce Directive (2000/31/EC)
When the internet just started, smart people started buying medication from Greece since it was
cheaper and the global websites made it possible. A way around regulations, you didn’t need a
passport to buy things. Also, in the beginning the internet was anonymous (dog cartoon stating
nobody knows it), who am I dealing with. Where are the end users, my customers? Suddenly there
were all types of crawlers collecting information and directing you to other websites although
looking for something else. Endless (spam) e-mails about all types of stuff coming from all over the
world. Something had to be done in the field of regulation.
Consequences are that they thought that everything being cross-border conflicts of law and
jurisdiction would become of major importance. They were worried about the difficulty for websites
to comply with EU laws and anonymous websites and spam, trying to keep worrying information for
citizens. To be on the internet, you need an ISP so they know the identity of their users. Like
newspapers who are gatekeepers having a duty of care that advertisements are legal. They thought
there was a need for facilitating online contracts.
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