4 2 February 2002

News:

The UK Patent Office expects the European Commission either to propose a draft directive on software patents within the next month or to withdraw from the field, leaving the issue to the European Patent Organisation. The Commission’s efforts have been hampered by the breadth of its consultation. It appears that pressure for change from those concerned with driving the Community Patent forward is also falling away.

The UK Direct Marketing Association’s (DMA) soon to be launched guidelines for unsolicited e-mail will advise members to adopt opt-out procedures even though the UK government and the EU Telecoms Council of Ministers has come down in favour of opt-in. The DMA acknowledged that they might have to revise their position but for the moment are intent on staying with opt-out procedures.

Analysts have reacted enthusiastically to British Telecomm-unication’s plans to cut substantially the cost of wholesale access to broadband. The details of BT’s plans had not been released at the time of going to press, but the announcement by newly appointed BT chief, Ben Verwaayen, that broadband would be at the centre of the company’s strategy, has raised hopes that the UK will start to see the long-awaited national roll out of high speed internet access. In the UK there are at present 220,000 ADSL connections compared to Germany’s 2 million. The UK government’s declared aim is for the country to have the most extensive and competitive broadband market in the G7 by 2005.

Features:

The European Union’s decision-making process is painstakingly slow. If the lack of speed reflected the unfolding of a profoundly democratic process then there would perhaps be something to be said for the delay. In reality the delays have more to do with the bureaucratic structure of the EU and political manoeuvrings between States than democratic niceties. To make matters worse, even when a Directive has been agreed, its implementation by individual States can take years longer. As our article on EU governance (see page 4) points out, ‘the e-commerce directive, due to be implemented by 17 January 2002, has been adopted in only three out of fifteen member states to date - the latest depressing figure on a scoreboard of depressing figures in the e-commerce area. The data protection directive is still not implemented in three countries, the e-signatures directive is not implemented by six member states.’ And at the end of this entire process the directive can be implemented in different ways in different States.

The implications of the Government’s sweeping new laws to beef-up the fight against terrorism following September 11 terror attacks on New York and Washington are likely to have far-reaching implications for all sectors of the economy. With limited debate taking place before the Anti-terrorism, Crime and Security Act 2001 became law, many businesses seem ignorant of their wider responsibilities under the new legislation.

This article looks at the EU’s decision-making process in the e-commerce context and questions whether there might be another way to legislate.

Although the initial hype about Application Service Providers (ASPs) has subsided, it is clear that the ASP business model spawned by the development of networks is here to stay. The ASP business model has become established as an important means of delivery of IT services because of its quick implementation time and predictable costs.

Many businesses may therefore find themselves contracting for online services with ASPs, whether it be for a specific project management application between a small group of people or as part of a wider-scale outsourcing strategy.

This is the first in a series of three articles highlighting the key legal issues for customers entering into a contract for the purchase of online services. This first article explains the difference between a traditional software licence and an ASP contract. It also discusses the need for clear and comprehensive service levels in ASP contracts.

It is now over a year since the Consumer Protection (Distance Selling) Regulations 2000 (the “Regulations”) came into force. The Regulations apply to contracts concluded ‘at a distance’ and so include sales made by email/internet, mail order, telephone and interactive television. Last year, the Office of Fair Trading (the regulator responsible for enforcing breaches of the Regulations) carried out an internet sweep to see whether e-businesses were complying with the requirements in the Regulations to provide customers with information before they place their order, including information about the right to cancel their contract. 52% of the companies were not providing the required information to consumers and were therefore in breach of the Regulations. The OFT is working with trading standards authorities to follow up with these companies to ensure that their sites are amended to comply with the law.

One year later, many leading e-businesses are still finding it difficult from a commercial perspective to comply fully with the Regulations. This article is intended to discuss some of the compliance issues which many businesses have found difficult to grasp, or indeed, accept.

This article considers The Law Commission’s report ‘Electronic Commerce: Formal Requirements in Commercial Transactions’ which examines the application of statutory form requirements to e-commerce and observes that although the law may be largely ready for e-commerce, widespread use of email and e-commerce will continue to require adaptation from lawyers and the Courts if legal and evidential certainty are not to suffer.

“Congratulations, you are already a winner...” - “Buy One Get One Free” - “No purchase necessary”. These types of commercial messages are so very familiar to all of us as consumers that the importance of sales promotion, direct marketing and ‘below-the-line’ advertising in driving our market economy should be obvious. It has become the vital lubricant for so much of today’s commercial activity. This article looks at the European Union’s slow progress towards harmonisation of this area which is littered with conflicting national regulations.

In The E-Commerce Directive a take down regime is referred to only as a condition for the safe haven for the ISP against potential liability for damages which the distribution of illegal or infringing material through their services could cause. The details of the regime have been left to EU States to specify. A recent agreement in Finland points to how such regimes might emerge.

After wide consultation the UK Government has developed a new policy for how to make policy. Grounded in common sense - to the point that it sometimes appears banal - the new policy represents official recognition of communication technology as a force in shaping modern society.

The Government, acting through the e-Envoy, is keen to encourage development of the knowledge economy by providing an effective, light-touch regulatory regime under which UK users may engage in eCommerce and use the Internet safely and securely.