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March 8, 2021
Following the end of the Transition Period, the E-Commerce Directive (2000/31/EC) no longer applies in the UK. According to the Explanatory Memorandum, although the UK continues to align with aspects of the policy approach taken in the E-Commerce Directive, including provisions on liability of intermediary service providers and general monitoring, this is not the case for the Country of Origin principle (CoOp) set out in the E-Commerce Directive.
The CoOp is a reciprocal arrangement that makes an EEA-established Information Society Service (ISS) liable (for relevant offences) only to the laws of the state in which it is established, rather than being subject to the laws of each state it operates in. This aims to make it simpler for an ISS to operate across borders, as they need only conform with one set of laws across multiple EEA countries, at least for relevant offences. ISS is defined in the E-Commerce Directive and covers the vast majority of online service providers, e.g. online retailers, video sharing sites, search tools, social media platforms and internet service providers.
As the CoOp relies on reciprocity, which no longer exists, implementing legislation no longer functions as intended. Failing to bring forward the amendments set out in this Statutory Instrument to remove the CoOp from relevant legislation would maintain:
- a dual legislative burden for UK-established ISS when operating in the EEA: because UK-established ISS would remain liable under UK law for their conduct when operating in EEA states, but they would no longer benefit from the restriction on prosecutions being instigated against them in those states for the same conduct; in other words, UK-established ISS would have to adhere both to UK law and the law of the EEA state they are operating in; and
- a gap in liability for EEA-established ISS when operating in the UK: because retaining the procedural gateway for prosecution proceedings against EEA-established ISS while they are no longer subject to the law of their home country for their conduct in the UK would mean that they might not be fully accountable under either legal system.
The amendments will address these issues by fully removing implementation of the CoOp from the criminal justice offences identified. However, it does not alter the nature of the offences in any way. According to the Explanatory Memorandum. this will establish a fairer and clearer system, ensuring ISS will be treated in the same way, irrespective of whether they are established in the UK, the EEA or another foreign country. To access the draft legislation, click here.