Last updated 19 October 2020
The e-Commerce Directive is a 2001 EU directive laying out the fundamental rules of online commerce within Europe.
- EU Directive 2001/31/EC
- Domestic implementation: the Electronic Commerce (EC Directive) Regulations 2002
- The Electronic Commerce Directive (Miscellaneous Provisions) Regulations 2018
- The Electronic Commerce (Amendment etc.) (EU Exit) Regulations 2019 – statutory instrument to the EU Withdrawal Act 2018
- EU Brexit notice on the Directive and Brexit (updated May 2020)
The term e-Commerce as used here means e-Commerce in the sense of doing business online full stop, not “ecommerce” in the WooCommerce sense of setting up an online shop and selling goods online.
The thing that is the most important about the ECD is Article 15. Loosely put, it is the European equivalent of the US’s Section 230.
As he usually does, Graham Smith explained it best:
Article 15 of the E-Commerce Directive lays down the basic principle that EU Member States cannot impose a general obligation on internet intermediaries to monitor what people say online. […] Article 15 is a strong candidate for the most significant piece of internet law in the UK and continental Europe. It is the stent that keeps the arteries of the internet open. It prevents the state from turning internet gateways into checkpoints at which the flow of information could be filtered, controlled and blocked.
It has been the fundamental safeguard of communication, free speech, and commerce for as long as most people have been online.
We in the UK may have to start worrying for Article 15. It could easily be overlooked, or even deliberately left behind, when we start the process of converting EU to domestic UK law in preparation for leaving the EU.
Brexit is the opportunity many policymakers have dreamed about for years to attack, weaken, and reshape the ECD into a very British model. That is one where internet gateways become checkpoints, the flows of information are filtered, controlled, and blocked, and platforms and businesses become privatised law enforcement. The excuses are myriad – the need to control hate speech, prevent terrorism, or tamp down abuse. But all of those aims can only be achieved, again as Graham Smith notes, by transferring the blame for the root of the problems from those who abuse platforms to the platforms themselves; the intermediaries become the perpetrators.
The process of dismantling the ECD has already begun. This statement to the House, for example, by the then-Secretary of State for Digital, laid out his intentions: “With Brexit, we will of course be leaving the e-commerce directive, so it is not a question of updating it, but of what to put in its place. We will be leaving the digital single market, and we have an opportunity to make sure that we get that piece of legislation right for the modern age—supporting innovation, growth and the use of modern technology, but doing so in a way that commands the confidence of citizens.” The digital solutionist obsession with “innovation”, as it so often does, cares not a jot for the fundamental principles which make that innovation possible.
It’s also telling that Matt Hancock, as Secretary for Digital, dragged out the “internet as wild west” trope when discussing remaking Britain’s digital regulations, when Article 15 is the international legal regulation that establishes the fundamental building block of online communication and exchange. The term “wild west” implies no laws and a swaggering sheriff, not an ironcast regulation and an opportunist politician who didn’t think twice about leaving the job.
Dr Lilian Edwards makes an excellent scholarly argument against the slippery slope that government seems determined to drag us down. Yes, there are reasons to reform aspects of the ECD. That’s not what they want to do.
My message to Britain’s digital and tech professionals would be this: the eCommerce Directive, and whatever replaces it, is issue zero. Nothing – upload filters, GDPR, VATMOSS – is anything near as important or as critical as this. Do not let other issues distract you, don’t let resentment of the EU cloud your judgement, and don’t think you can code your way around this. You can’t.
In January 2019 government issued guidance on the e-Commerce Directive in the event of a “no deal” Brexit.
While the “no deal” advice pledges harmonisation with existing European regulations, including those on intermediary liability and general monitoring, the direction of travel for domestic tech policy has been rather opposite.
In July 2020, government stated that it “has no current plans to change the UK’s intermediary liability regime or its approach to prohibition on general monitoring requirements.” This development, coming as it did after a year of contention over the online harms framework, changes the dialogue completely. The more hawkish advocates of the online harms framework have insisted, and have done so as recently as this week, that the intermediary liability regime must be revisited and overhauled to create a bespoke British model. Government’s statement that it will be keeping the existing intermediary liability regime after all indicates that those hawks failed to present a viable argument for their case.
Also in July 2020, the Communications Act (e-Commerce) (EU Exit) Regulations 2020 statutory instrument ends the country of origin principle following the transition period, as was also clarified by the EC in May 2020. Here’s the explanatory memorandum.