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GIBRALTAR

The EU Directive on a Legal Framework for E-commerce

As part of the EU, Gibraltar is of course subject to EU law which impacts on e-commerce. There is a fair amount of this, but the most important part is the Directive to establish a coherent legal framework for e-commerce development within the Single Market, which was approved in May 2000. Its key components are as follows:

The directive implements the principles of free movement of services and freedom of establishment.

The most contentious issue regards the liability of on-line service providers. The Directive establishes an exemption from liability for intermediaries where they play a passive role as a "mere conduit" of information from third parties and limits service providers' liability for other "intermediary" activities such as the storage of information.

The Directive also clarifies that the Internal Market principle of mutual recognition of national laws and the principle of the country of origin must be applied to Information Society services.

Place of establishment. The Directive defines the place of establishment as the place where an operator actually pursues an economic activity through a fixed establishment, irrespective of where web-sites or servers are situated or where the operator may have a mailbox.

Transparency. The Directive requires Member States to oblige Information Society service providers to make available to customers and competent authorities in an easily accessible and permanent form basic information concerning their activities (name, address, e-mail address, etc).

On-line contracts. The Directive requires Member States to remove any prohibitions or restrictions on the use of electronic contracts. In addition, it ensures legal security by imposing certain information requirements for the conclusion of electronic contracts in particular in order to help consumers to avoid technical errors.

Commercial communications. The Directive defines commercial communications (such as advertising and direct marketing) and subjects them to transparency requirements.

Implementation. The Directive strengthens mechanisms ensuring that existing EU and national legislation is enforced. This includes encouraging the development of codes of conduct at EU level, stimulating administrative co-operation between Member States and facilitating the setting up of effective, alternative cross-border on-line dispute settlement systems.

The EU Regulatory Framework for Electronic Communications

  • In July 2000 the Commission published a package of proposals for a new Regulatory Framework for electronic communications, with the following main components:
  • Proposal for a directive on a common regulatory framework for electronic communications networks and services
  • Proposal for a directive on universal service and users’ rights relating to electronic communications networks and services
  • Proposal for a directive on access to, and interconnection of, electronic communications networks and associated facilities
  • Proposal for a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector
  • Proposal for a directive on the authorisation of electronic communications networks and services
  • Proposal for a regulation on unbundled access to the local loop
  • Proposal for a decision on a regulatory framework for radio spectrum policy in the European Community

Gibraltar is also subject to The Electronic Signatures Directive 1999/93/EC on a Community framework for electronic signatures, which was approved in December 1999.

Local Legislation

The Electronic Commerce Ordinance was passed on March 5, 2001 by the Gibraltar parliament, the House of Assembly, and was viewed as an important step in Gibraltar's development as an e-commerce hub to rival its nearest competitors, such as Guernsey, Malta and the Isle of Man.

The legislation facilitates the use of electronic means for transmitting and storing information and affords legal recognition to transactions effected electronically. It also provides a framework for the accreditation of electronic signatures and determines the activities and liability of service providers.

The Government described the Bill as follows: 'The legislation is aimed at "facilitating the use of electronic means for transmitting and storing information" and affords legal recognition to transactions effected electronically. It also provides a framework for the accreditation of electronic signatures and determines the activities and liability of service providers.'

In April 2004 the Gibraltar government established a new E-Business Advisory Council, calling it a step towards the creation of an e-commerce centre for both local and international traders in the export business.

In June, 2005, the Government of Gibraltar issued a detailed consultation paper, including draft legislation, for a Bill for a Gambling Ordinance, which is intended to modernise the current gaming legal framework. The proposed Gambling Ordinance aims to modernise Gibraltar’s very old gaming legislation, and to create a statutory licensing and regulatory framework, in the light of Gibraltar’s status as a leading jurisdiction for on-line gaming.

Commenting on the consultation paper, Chief Minister Peter Caruana, who has ministerial responsibility for gaming, observed that: “This Government has always attached and continues to attach considerable importance to the protection of Gibraltar’s jurisdictional reputation, as well as to providing an operating environment that protects the corporate reputation of gaming companies established here."

"This draft legislation is intended to update the statutory framework to ensure that Government is able to continue doing so in the light of the recent growth in new gaming activities. It is the Government’s intention to take a Gambling Bill to the House of Assembly early in the Autumn.”