EU Internet Law

Art. 9 - Treatment of contracts (E-comm Directive)

Member States shall ensure that their legal system allows contracts to be concluded by electronic means

Art. 10 - Information to be provided

1. […] Member States shall ensure, except when otherwise agreed by parties who are not consumers, that at least the following information is given by the service provider clearly, comprehensibly and unambiguously and prior to the order being placed by the recipient of the service:

(a) the different technical steps to follow to conclude the contract

(b)  whether or not the concluded contract will be filed by the service provider and whether it will be accessible;

(c)  the technical means for identifying and correcting input errors prior to the placing of the order;

(d)  the languages offered for the conclusion of the contract.

Art 11 - Placing of the order

1.Member States shall ensure, except when otherwise agreed by parties who are not consumers, that in cases where the recipient of the service places his order through technological means, the following principles apply:

• the service provider has to acknowledge the receipt of the recipient’s order without undue delay and by electronic means,

• the order and the acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them.

Art. 6 Information requirements

Art. 9 14 days right to return

the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason, and without incurring any costs other than those provided for in Article 13(2) and Article 14. 

! Art 10: If art. 6(1)(h) (information of a right of withdrawal) is not fulfilled --> up to 12 months

1.Require a specific performance, repair or replacement (cure)

• Specific performance only possible under specific circumstances. Applicable for generic goods.

2.Withhold its own performance

3.Terminate the contract and claim the price already paid

• (Requires fundamental breach)

• Distinction between normal and fundamental breach (substantially deprive the creditor’s promise) --> exceptions to fundamenal breach regulations

  • Substantially deprives the creditor of what the creditor was entitled to expect, or
  • It is intentional or reckless and gives reason that future performance cannot be relied on

• In Contract one can write clauses about what a fundamental breach is and what remedy can be used in what case.

4.Proportionately reduce the price

5.Claim damages (loss)

Place of performance (Art. 2:101 DCFR)

• Creditors place of business in monetary obligations
• Debitors place of business in all other obligations
• Digital contracts (Art. 95 CESL): consumers place of residence

Time of delivery (Art. 2:102)

Art. 102 CESL

• Data which are produced and supplied in digital form, incl. Video, audio, picture, written content, games, software

Rights and obligations (Art. 100 CESL)

• Digital contracts must possess such qualities and performance capabilities as the buyer may expect.

Right to withdrawal (Art. 40 CESL)

• 14 days withdrawal right does ont apply where the supply of digital content which is not supplied on a tangible medium has begun with the consumers prior express consent and with the acknowledgement by the consumer of losing the right to withdraw.

Terms of Use and Privacy Policies

• Part of the digital contract either by agreeing (klicking button) or deemed to agree by simply visiting the website.

Time of delivery:

• immediately

Burden of proof:

• on the supplier

Temination:

• Art. 11: Termination possible if not supplied

• Who: Parties
• What: Description of goods / services, content of contract
• When: TIme of delivery, where
• Price 
• Signature
• Liability --> consequence of breach
• Disputes --> choice of law, jurisdiction

License contracts

• Territory
• Possibility to sublicese
• IPR --> use of trademarks etc.

Brussels regulation:

• options of where to sue, courts cannot decline lawsuits in general
• civil and commercial matters

Main rule:

Art. 4: persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State (Forum domicili)

Naturl persons: Art. 62

Legal persons: Art. 63

• domiciled where

  • (a)statutory seat;

  • (b)central administration; or

  • principal place of business

Art. 7(1) Forum solutionis = Place of contractual performance

• The essential/characteristic part of the contract –> Goods/service, not payment
• Services --> Main part --> If not possible (for agents), where the agent is domiciled

E-Contracts?

• unclear --> need case law, place of disputed performance

Art. 7(2) = Where the harmful event occured or may occur, or resulted in harm (Forum delicti)

• Case: Bier v Mines d’ Potasse Alsace
  • Pollution in rhine water and damaged plantation
  • Sue: both in France and Netherlands
• Case: Sheville v Press Alliance)
  • Defamation in French newspaper, also 230 copies in England
  • Sue: Sue for the harm of all in France, but alternatively for the harm of the 230 in England
    • If online Articles:
      • a) in France
      • b) at the center of Ms. Shevilles interests (England) or
      • c) in every country, where the the content is or has been accessible (but then limited to damages in that exact country)

Art. 17-19

• Consumer --> Extended rights to sue the other party where the consumer is domiciled

  • Loan and finance agreements always in the consumer’s country.

• Other party --> Only sue the consumer at the consumer’s domicile

Important for e-contract:

• It is required that the consumer contract is concluded by means that is directed at the consumer’s country of residence

When: Particularly close connection between the dispute and a state

Art. 24 = Supersedes other options of jurisdiction and cannot be replaced!

Includes disputes regarding, i.a.:

•immovable property,

•tenancies,

•dissolution of companies, and

•validity of patents, trade marks, designs, or other similar rights --> Copyright not included, and only concerns validity

Art. 25 = Agreement between the parties of where jurisdiction shall be (Prorogation)

The agreement must be either a) be in writing, or follow from b) pratices between the parties or c) as a standard in the international trade or commerce

NB: Not valid against consumers unless it

1. is entered into after the dispute has arisen;

Forum (jurisdiction) shopping: handpicking a favourable jurisdiction. generally not intended, but foreseeability.

Rome Convention

Starting point: Freedom of choice

• The parties can agree on the choice of law (full or in part)
• Even after the case has begun…

Exception 1: Where provisions in the other country’s law cannot be derogated from

Exception 2: Conflict with other specific EU legislation

If no agreement can be found:

• country where contract is most closely related to
• Art. 4(1)

  • a. contract for the sale of goods = where the seller has his habitual residence;

  • b. contract for the provision of services = where the service provider has his habitual residence;

  • c. contract relating to a right in rem in immovable property or to a tenancy of immovable property = where the property is situated;

  • d .notwithstanding point (c), a tenancy of immovable property concluded for temporary private use for a period of no more than six consecutive months shall be governed by the law of the country where the landlord has his habitual residence, provided that the tenant is a natural person and has his habitual residence in the same country;

  • e. franchise contract = where the franchisee has his habitual residence;

  • f. distribution contract = where the distributor has his habitual residence;

  • g. contract for the sale of goods by auction = where the auction takes place, if such a place can be determined;

Rome 2 regulation: Art. 4 (1) country in which the damage occurs

Exception, art. 4(2): However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

Freedom of choice: 

The parties may agree to submit non-contractual obligations to the law of their choice:

(a)  by an agreement entered into after the event giving rise to the damage occurred; or

(b)  where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occurred.

--> Consumers cannot agree to such contracts before the event

Case IP rights:

• Art. 8(1) - shall be the law where the protection is claimed. IP registerd in DK, then DK.

The Directive on Alternative Dispute Resolution

-Mediation (mutually acceptable outcome)

-Arbitration (independent third parties make a decision – “private judges”)

à Obligation for member states to facilitate consumer access to ADR procedures (offline and online)

Regulation on Online Dispute Resolution

-Complement to the ADR Directive

-EU platform that forwards material to the relevant national ADR (one stop for EU consumers)

Only online disputes involving consumers

Primary sources

• TEU --> Treaty on the EU (= EU constitution)
• TFEU --> Treaty on the functioning of the EU
• Charter of fundamental rights of the EU

Secondary sources

• International agreements
• National legislation
• Regulations / Directives (Art. 288 TFEU)
  • Full or minimum harmonisation --> either it is binding or it is provided for that there can be a harded ruling
  • Directives: are addressed to countries and these have to create their own national law by chosing their own methods and forms. 
  • Regulations:  binding in entirety and directly applicable to all member states
• Case law

E-Commcerce Directive

• The internal Market (= country of origin principle)
  • Home country control
  • Mutual recognition

Defintion ISS:

any services provided for remuneration, at a distance, by electronic means, and at individual request of recipient of services.

• Any service normally provided for remuneration (also includes free services as long as commercial nature)
• At a distance = not simultaneously present
• By means of electronic equipment for the processing and storage of data
• At the individual request of a recipient of a service

Cases:

• Uber 
  • Question if Uber should be considered merely a transport service, an electronic intermediary or an ISS?
  • Uber service consists of two services (transport service and connecting driver and customer), but the court ruled that these services are linked together, thus no information societ service and so the E-Comm directive does not apply. 
  • Therefore, no country of origin principle.

• AirBnB
  • AirBnB Ireland service “by means of an electronic platform, is intended to connect, for renumeration, potential guests with professional or non-professional hosts offering short-term accommodation services” à covered by information society service
  • Conclusion that these were two seperate services thus it is an information society service and therefore the e-commerce directive applies
  • AirBnB could rely on country of origin principle

Freedom of Speech:

• The right to express one's ideas
• Can be limited when the harm it brings outweighs the benefits (defamation, obscene content etc.)

Freedom of Expression (Art. 10(1) ECHR):

• The ability to convey ideas irrespective of the medium used, through speech but also other forms.
• Consists of:
  • Freedom to hold opinions
  • Freedom to receive and impart information and ideas
• Subject to limitation (Art. 10(2))
  • if prescribed by law
  • and are necessary in a democratic society, interests of national security, for the protection of health or morals etc.
• Can be subject to limitation also by different fundamental rights
  • freedom of privacy
    • Two factors to consider:
    • The nature of information in question and its sensivity for the data subjects private life
    • the public's interest
  • IP rights (copyrights etc)

• Marketplace of ideas
• Free expression strengthens democracies
• Personal autonomy
• Tolerance: The freer the exchange of ideas, the more tolerant the society
• Prevents governments to silencing ist opposition

Local government governs public space, but can also limit your rights in the public space. But there are fundamental rights such as freedom of expression that protects people from state interference.

SABAM

•  Requirements for ISP to install filtering software for copyright enforcement
  • CJEU decided that is not required as it potentially undermines freedom of information/speech

Deckmyn

• Parody as a way of expressing oneself, but must strike a fair balance between interests and rights of persons and freedom of expression
• Two criterias of parody:
  • Evokoe an existing work but noticeably diferent
  • Constitute an expression of humour or mockery

Google Spain

•  Balance of freedom of expression with freedom of privacy (right to be forgotten)
  • Court held that freedom of privacy bears more importance. No criteria though as when and how this limitation of a freedom can be made

1.CJEU

• Concerns Directives, regulations à preliminary rulings
• Two people cannot sue or argue directly at the CJEU, first the national court, and then to the CJEU (horizontal relations)

2.ECHR

• Covers cases between citizens/ legal persons and a state (vertical relations)

Definition:

• refers to various state efforts to eliminate certain content from internet

If the state allows certain conduct, the ISS can still decide to block this content (e.g. State allows the spreading of misinformation (vertical), however FB can block this content (horizontal))

If the state forbids certain conduct, the ISS cannot decide to still allow this content, it must obey and block content.

ISP includes ordinary telecom companies and information society services

Basic rules:

• User generated content (Who post content and who is infringer?) --> why sue the ISP?

  • Person is anonymous

  • ISP is always evident

  • ISP can always do somethig about it

  • ISP have more money

Steps:

1. ISP can be held liable for infringement
2. Unless the ISP falls within scope of article 12-14 of E-Comm Directive
   1. Art. 12: mere conduit = providing the service, but nothing to do with the content (select or modify information) etc. If you are completely passive, then you are usually in the scope of  not being liable. They can however be forced to break the passivity and then might be liable. For passive conduct you cannot sue for damages but for injunction
      1. Did not initiate the transmission
      2. did not select the receiver
      3. does not select or modify the information
   2. Art. 13: cashing = not really important
   3. Art. 14: hosting = online platforms (social media, search engine etc) and hosting providers
      1. not liable if provider does not have actual knowlede of illegal activity or
      2. the provider upon obtaining such knowledge acts expeditiously to remove or disable access to the information (e.g if FB filters all the content, then they might be liable as they would have knowledge)
3. and fulfills all the requirements

Art. 17

Main rule:

• ISP shall be liable for unauthorised acts of communication to the public of copyirght protected works

Exception:

• Unless ISP demonstrates that they have
  • made best efforts to obtain an authorisation and
  • made best efforts to ensure the unavailability of specific works
  • acted expeditiously to diable access to or remove from their websites
• --> here the EU changed its regime and for copyright infringement the ISP cannot remain passive as otherwise they become liable
  • Risk that ISP block everything (encourage cencorship)
  • This clashes with Art. 15 (General monitoring prohibition)

Privacy is a fundamental right (Art. 8 ECHR)

• everyone has the right to the protection of personal data concerning them” and “such data must be processed fairly for specified purposes and on basis of consent of the person concerned or some other legitimate basis laid down by law

Any processing of personal data is a possible interference with that fundamental right

Data is processed more than ever in the Information Societey. Free Services in exchange for data offer valuable insights. But may affect bargaining power between parties

Directive 94/46

GDPR (2016/679)

ePrivacy directive

Art. 2 Material scope

• Processing of --> not household or personal activity
• personal data --> not anonymized
• by automated means or filing systems

Art. 3 Territorial scope

• Establishment in the EU
• No establishment in EU, but Activities in EU
  • Offering of Products or Services
  • Monitoring of behaviour

Art. 5

• Lawfulness, fairness and transparency
• Purpose limitation
  • Reasons for processing, particular purpose most be determined beforehand
  • specific, explicit and 
• data minimisation
  • no more data should be processed than necessary for the purpose
• accuracy
  • data must be correct if data is not, must be adapted or deleted
• storage limitation
  • data should not be stored longer than necessary
• integrity and confidentiality
  • data security must be maintained (also when transferred to another country)
• accountability
  • One must be able to demonstrate that this is actually the fact, just being compliant is not sufficient

Furthermore, principles of data protection by design and by default

• By design: Data protection must be acknowledged already when designing an app, etc.
• By default: settings that are most friendly to GDPR, like opt in not opt out. Default settings that are most protective.