S.I. No. 68/2003 - European Communities (Directive 2000/31/EC) Regulations 2003

1. Patents Act 1992 (No. 1 of 1992).

2. Intellectual Property (Miscellaneous Provisions) Act 1998 (No. 28 of 1998).

3. European Communities (Legal Protection of Biotechnological Inventions Regulations 2000 (

S.I. No. 247 of 2000

).

4. Copyright and Related Rights Act 2000 (No. 28 of 2000).

5. Trade Marks Act 1996 (No. 6 of 1996).

6. Instruments made under the foregoing enactments.

7. European Communities (Electronic Money) Regulations 2002 (

S.I. No. 221 of 2002

or measures adopted in any other Member State to implement Directive 2000/46/EC to the extent that an emission of electronic money is effected by an institution in respect of which —

(a) in the case of the foregoing Regulations, a certificate issued under Regulation 19 of those Regulations is for the time being in force,

or

(b) in the case of such measures adopted by another Member State, the means adopted by that State, pursuant to those measures, to apply one of the derogations provided for in Article 8(1) of that Directive for the time being has effect.

8. Regulation 89 of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 1989 (

S.I. No. 78 of 1989

).

9. Regulations 8, 23 to 26 and 28 to 37 of the European Communities (Non-Life Insurance) Framework Regulations 1994 (

S.I. No. 359 of 1994

).

10. Regulations 42 and 46 to 54 of the European Communities (Life Assurance Framework Regulations 1994 (

S.I. No. 360 of 1994

).

11. The freedom of the parties to choose the law applicable to their contract.

12. Contractual obligations concerning consumer contracts.

13. Formal validity of contracts creating or transferring rights in real estate where such contracts are subject to mandatory formal requirements of the law of the Member State where the real estate is situated.

14. The permissibility of unsolicited commercial communications by electronic mail.

GIVEN under my Official Seal,

24

th

day of February 2003.

MARY HARNEY

Minister for Enterprise,

Trade and Employment.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The purpose of these Regulations is to transpose into Irish law the essential requirements of Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Electronic Commerce Directive). A number of provisions of the Directive were transposed in the

Electronic Commerce Act 2000

(No. 27 of 2000) or were already on the statute book by virtue of the provisions of the

Data Protection Act 1988

(No. 25 of 1988).

The Regulations lay down a framework for the supply of Information Society (IS) services (essentially services provided “on line”) between one Member State of the European Economic Area (the EU plus Iceland, Liechtenstein and Norway) and another. The framework lays down that IS services provided by an Irish service provider to a person in another Member State must comply with the applicable Irish law for that service. The applicable law of the importing Member State may not be applied to the IS service in question. Derogations are provided from the framework for the IS services listed in Schedule 2 to the Regulations. In addition, the Regulations provide for the right of a Member State to take measures against incoming IS services on a case-by-case basis and in certain circumstances such as to prevent a crime relating to public policy or to protect consumers including investors. Certain IS services are excluded from the Regulations.

The Regulations require persons sending unsolicited commercial e.mails to ensure that these are clearly identifiable on receipt.

The Regulations create an exemption from liability for intermediary service providers (persons whose business consists in the connection of persons to the Internet) where certain activities are performed and in certain circumstances.

The Regulations also —

- require persons providing IS services to provide certain information about themselves and the services they provide in the interests of transparency

- permit members of certain professions (referred to in the Regulations as “regulated professions”) to engage in IS services provided they respect the rules of their profession in relation to such activities 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

- provide for information to be given to persons providing and receiving IS services, and

- provide that failure to comply with certain provisions is an offence prosecutable by the Director of Consumer Affairs or (in respect of Regulation 9 only) the Data Protection Commissioner.

1

OJL 178, 17.7.2000, P.1

15. A provision of Regulation 16, 17 or 18 providing that a relevant service provider shall not be liable for a particular act shall be construed as a provision to the effect that the provider shall not —

(a) be liable in damages or, unless otherwise provided, be liable to be the subject of an order providing for any other form of relief, for infringing, by reason of that act, the legal rights of any natural or legal person or, by reason of that act, for breaching any duty, or

(b) be liable to be subject to any proceedings (whether civil or criminal) by reason of that act constituting a contravention of any enactment or an infringement of any rule of law.

Liability of intermediary service providers - “mere conduit.”

16. (1) An intermediary service provider shall not be liable for information transmitted by him or her in a communication network if —

(a) the information has been provided to him or her by a recipient of a relevant service provided by him or her (being a service consisting of the transmission in a communication network of that information), or

(b) a relevant service provided by him or her consists of the provision of access to a communication network,

and, in either case, the following conditions are complied with —

(i) the intermediary service provider did not initiate the transmission,

(ii) the intermediary service provider did not select the receiver of the transmission, and

(iii) the intermediary service provider did not select or modify the information contained in the transmission.

(2) References in paragraph (1) to an act of transmission and of provision of access include references to the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communications network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

(3) This Regulation shall not affect the power of any court to make an order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights.

Caching.

17. (1) An intermediary service provider shall not be liable for the automatic intermediate and temporary storage of information which is performed for the sole purpose of making more efficient that information’s onward transmission to other users of the service upon their request, if —

(a) that storage is done in the context of the provision of a relevant service by the relevant service provider consisting of the transmission in a communication network of information provided by a recipient of that service,

and

(b) the following conditions are complied with —

(i) the intermediary service provider does not modify the information,

(ii) the intermediary service provider complies with conditions relating to access to the information,

(iii) the intermediary service provider complies with any rules regarding the updating of the information that have been specified in a manner widely recognised and used by industry,

(iv) the intermediary service provider does not interfere with the lawful use of technology, widely recognised and used by industry to obtain data on the use of the information, and

(v) the intermediary service provider acts expeditiously to remove or disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.

(2) This Regulation shall not affect the power of any court to make an order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights.

Hosting.

18. (1) An intermediary service provider who provides a relevant service consisting of the storage of information provided by a recipient of the service shall not be liable for the information stored at the request of that recipient if —

(a) the intermediary service provider does not have actual knowledge of the unlawful activity concerned and, as regards claims for damages, is not aware of facts or circumstances from which that unlawful activity is apparent, or

(b) the intermediary service provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

(2) Paragraph (1) shall not apply where the recipient of the service is acting under the authority or the control of the intermediary service provider referred to in that paragraph.

(3) This Regulation shall not affect the power of any court to make an order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights.

Contact points for purposes of Article 19 of Directive and their functions.

19. (1) For the purposes of paragraph 2 of Article 19 of the Directive each of the following is a contact point referred to in that paragraph —

(a) the Minister, and

(b) the body or bodies, if any, designated by the Minister, with the consent of the body concerned, to be such a contact point or contact points.

(2) The following shall provide the assistance and information referred to in Article 19.3 of the Directive to the Commission and other Member States —

(a) the Minister, or

(b) where one or more bodies are designated under paragraph (1)(b) whichever of the following, namely, the Minister or the body so designated, or one or more of the bodies so designated as the Minister determines shall perform, for the time being, functions in respect of specified classes of assistance or information.

(3) For the purposes of paragraph 4 of Article 19 of the Directive each of the following is a contact point referred to in that paragraph —

(a) the Minister, and

(b) the body or bodies, if any, designated by the Minister, with the consent of the body concerned, to be such a contact point or contact points.

(4) The relevant contact point shall provide, on request being made by the provider or recipient, to a relevant service provider or a recipient of a relevant service —

(a) general information (but not legal advice) on contractual rights and obligations as well as on the complaint and redress mechanisms available in the event of disputes, including practical aspects involved in the use of such mechanisms, and

(b) details of authorities, associations or organizations from which the provider or recipient may obtain information or practical assistance additional to that provided under subparagraph (a).

(5) For the purposes of paragraph (4) the relevant contact point is —

(a) the Minister, or

(b) where one or more bodies are designated under paragraph (3)(b) whichever of the following, namely, the Minister or the body so designated or one or more of the bodies so designated as the Minister determines shall perform, for the time being, functions in respect of specified classes of information.

(6) The Minister and any body designated under this Regulation shall, for the purposes of this Regulation, be capable of being communicated with by electronic means.

(7) The making of each of the following shall be notified by the Minister to the Commission and the other Member States as soon as may be after it is made —

(a) a designation of a body under this Regulation, and

(b) a determination under this Regulation that the Minister or one or more of the bodies designated under this Regulation shall perform, for the time being, functions under this Regulation in respect of a specified class of matter.

Developments in State concerning relevant services to be reported to Commission.

20. (1) Where the Minister acquires direct knowledge of any matter mentioned in paragraph (2) or information in respect of it is supplied to the Minister by any other Minister of the Government, the Director, the Data Protection Commissioner or any other person, the Minister shall communicate to the Commission such and so many particulars in relation to the matter as the Minister considers relevant or the Commission, after having been initially informed of the matter, requests the Minister to supply to it.

(2) The matters referred to in paragraph (1) are —

(a) significant judicial decisions made in the State in relation to any cause or matter concerning the provision of relevant services,

(b) significant decisions made by any tribunal, the Director or other body in relation to any dispute or complaint concerning the provision of such services, and

(c) practices, usages and customs relating to electronic commerce.

Authorised officers.

21. (1) In this Regulation the “relevant provisions” means Regulations 7, 8, 13 and 14.

(2) The Director may appoint one or more officers of his or hers to be an authorised officer or authorised officers for the purpose of this Regulation.

(3) For the purpose of ensuring compliance with the relevant provisions and, in particular, for the purpose of investigating any contravention of a relevant provision he or she suspects has occurred or is occurring, an authorised officer may exercise the powers specified in paragraph (4) if he or she considers it to be reasonably necessary to do so for such a purpose.

(4) The powers mentioned in paragraph (3) are —

(a) at all reasonable times, to enter, if necessary by force, and search premises in which the authorised officer has reasonable grounds for believing that any records, materials or other documents are being kept, being records, materials or documents which relate to an activity the subject of a relevant provision,

(b) to require —

(i) the owner of such premises, any person employed at the premises or any person in charge thereof, or

(ii) whether such premises have been entered or not, the person who carries on the activity the subject of a relevant provision,

to give the authorised officer such information in the person’s power or control as the officer may reasonably require and to produce to him or her any records (in whatever form kept) or books or documents (including labels and fiches) as the officer may reasonably require,

(c) at such premises or, in the case of a requirement under subparagraph (b)(ii), within a reasonable time after the requirement is complied with to inspect and take copies of, or extracts from any books, records or other documents (including, in the case of information in non-legible form, a copy of or extract from such information in permanent legible form), found by or produced to the authorised officer,

(d) to require any person, by or on whose behalf data equipment is or has been used on such premises in relation to the carrying on of the activity the subject of a relevant provision or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford the authorised officer all reasonable assistance in relation to its use thereto.

(5) An authorised officer shall be furnished with a warrant of his or her appointment as an authorised officer and, when exercising any power conferred on an authorised officer by these Regulations shall, if requested by any person affected, produce the warrant or a copy of it to that person.

(6) A person who —

(a) obstructs or interferes with an authorised officer in the exercise of his or her powers under this Regulation or,

(b) without reasonable excuse, does not comply with a requirement of an authorised officer under this Regulation or,

(c) in purported compliance with such a requirement, gives information to an authorised officer that the person knows to be false or misleading in a material respect,

shall be guilty of an offence.

(7) An authorised officer shall not, other than with the consent of the occupier enter, in exercise of his or her powers under this Regulation, a private dwelling unless such entry is authorised by a warrant granted by the District Court under Regulation 22.

(8) An authorised officer, where he or she considers it necessary, may require a member of the Garda Síochána to assist him or her when exercising any powers conferred on an authorised officer by this Regulation which involve the breaking open of any premises or any other action in which the use of force may be necessary and is lawful.

Issue of warrants by District Court.

22. If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for believing that records, materials or other documents are being kept on any premises, being records, materials or other documents which relate to an activity the subject of a relevant provision (within the meaning of Regulation 21) and which an authorised officer reasonably considers it necessary to inspect for the purpose mentioned in Regulation 21(3), the judge may issue a warrant authorising an authorised officer, accompanied, if appropriate, by other authorised officers or by a member or members of the Garda Síochána, at any time or times within 1 month from the date of issue of the warrant, on production of the warrant if so requested, to enter that premises, if need be by reasonable force, and exercise all or any of the powers conferred on an authorised officer by Regulation 21.

Interference with books, records or documents.

23. (1) If any person interferes with any equipment, books, records or other documents, whether electronic or paper based, so as to affect, and with the intention of affecting, the outcome of any action taken under Regulation 21 or 22 or a prosecution for an offence under these Regulations, he or she shall be guilty of an offence.

(2) For the purposes of paragraph (1), a person shall be presumed to have intended the natural and probable consequences of his or her conduct; but this presumption may be rebutted.

Offences by bodies corporate.

24. Where an offence under these Regulations has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

Penalties.

25. A person guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 3 months or both.

SCHEDULE 1

Regulation 3

(1)

Excluded Services

Services not provided “at a distance”

I, MARY HARNEY, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by

section 3

of the

European Communities Act, 1972

(No. 27 of 1972), and for the purpose of giving effect to certain provisions of Directive No. 2000/31/EC

1

of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market hereby make the following regulations

Citation and commencement.