UK: E-commerce news

Last Updated: 30 November 2002
  • Fine for UK mobile phone text message spammer
  • Data Privacy - Subject Access Request (SAR) consultation
  • UK uses new eCommerce Regulations to fine Spanish and Greek websites
  • Implementation of the eCommerce Directive in the financial services sector
  • Is mention of a name on a website a data transfer?
  • Are your website terms and conditions enforceable?

Fine for UK mobile phone text message spammer

ICSTIS, the Independent Committee for the Supervision of Standards of Telephone Information Services, is the industry-funded regulatory body for all premium rate charged telecommunications services. It regulates the content and promotion of premium rate services through a Code of Practice. All premium rate service providers are obliged to comply with the ICSTIS Code of Practice through their contracts with network operators. In late August, ICSTIS fined an advertising company £50,000 and barred it from continuing a mobile phone text messaging promotion. The company had been sending large numbers of unsolicited text messages to mobile phone users telling them they had won a mystery prize worth £500. Users were told to urgently ring a premium rate number only to be offered holiday discount vouchers rather than a £500 prize. The same company was fined a further £10,000 in October for texting recipients with a message indicating they had won money in an instant lottery competition. Recipients were told to ring a premium rate number only to find that after a lengthy delay they could merely obtain holiday vouchers. Although mobile phone text messaging is currently not specifically regulated in the UK it is regulated by the new Privacy and Electronic Communications Directive which is due to be implemented in the UK and other EU member states by 31 October 2003.

Data Privacy - Subject Access Request (SAR) consultation

The Data Protection Act 1998 protects the personal data of data subjects. Employers will be data controllers under the Act if they hold personal data about current and past employees and also unsuccessful applicants for positions. Examples of such data include employee records, sickness records, interview reports and employer/peer reviews whether formal or informal (e.g. in an email). When the wide definition of personal data is coupled with the data subject’s right under the Act to access that data for the very modest sum of £10 it creates a potential headache for data controllers who must comply with subject access requests within 40 days.

As well as the practical difficulties of compliance, the employer will also need to consider the legal issues. The Act contains a complex series of exemptions and limitations to the obligation to provide the data. The disclosure of the information may conflict with the data privacy rights of other employees, reveal the employer’s trade secrets and/or be damaging to any current or potential litigation involving the employer. The recently launched public consultation by the Lord Chancellor’s Department does not of itself offer any possible solutions to these problems but rather contains a number of questions on the following issues as a means of encouraging debate on the issue of SARs:

  • The general workability of SARs under the Act;
  • Subject access fees;
  • Response time;
  • Locating the information sought;
  • Methods of providing information;
  • Frequency of requests; and
  • Exemptions.

Comments must be submitted by 31 January 2003. Please click through for a copy of the Lord Chancellor’s consultation paper.

UK uses new eCommerce Regulations to fine Spanish and Greek websites
As discussed in the April 2002 IT Bulletin the UK’s progress toward implementation of the eCommerce Directive has been slow. The Directive regulates Information Society Service Providers (ISSPs). As Information Society Services (ISSs) include the provision of goods, services or information most businesses that use the Internet will come within the Directive. The general rule under the Directive is that an ISSP will normally only be regulated by the laws in its home state (i.e. the home state/country of origin rule). There are however several exceptions to that rule. One exception is that a Member State is able to take action against an ISSP located in another Member State if it is necessary in the interests of the public to take immediate action.

On 21 August 2002 after several public consultations the UK’s Electronic Commerce (EU Directive) Regulations 2002 finally came into force. The UK’s premium rate services regulator ICSTIS has moved quickly to take advantage of the Regulations. Two websites, one based in Spain and the other in Greece, were promoting child pornography and were also secretly downloading software to users which diverted them to a premium rate internet dial up service that was charged at £1.50 a minute. ICTIS recently fined the companies, barred access for two years and the companies were also ordered to offer redress to any subscribers that complained to ICSTIS.

The actions of ICSTIS are a timely reminder to businesses located in the EU that if they are conducting business online the "home state rule" does not offer blanket protection. The exception from the rule mentioned above is only one of several in the Directive. Some of the other exceptions (e.g. consumer protection laws, copyright law) severely dilute the impact of the Directive. The UK, like the other Member States, must repeat the exceptions in their implementing legislation. This means that those conducting business in multiple EU countries will still need to consider the law in each of those countries.

Please click through for a copy of the Electronic Commerce (EU Directive) Regulations 2002.

Implementation of the eCommerce Directive in the financial services sector

The UK’s Electronic Commerce (EU Directive) Regulations 2002 discussed in article 1.3 above, implemented the Electronic Commerce Directive (2000/31/EC), in all sectors except the financial services sector. Separate legislation has now come into force in the UK to apply the Directive to that sector. The "home state/country of origin" rule means that in principle a UK ISSP which provides financial services will only need to comply with the laws of the UK even if it is providing the financial services to another Member State. Unfortunately for providers of financial services the same exceptions to the "home state/country of origin" rule discussed above have also been applied to the financial services sector. It will therefore also still be necessary for financial service providers to consider the law in each of the EU member states in which they provide those services.

Is mention of a name on a website a data transfer?
In a recent case before the European Court of Justice (ECJ) the court had to decide whether the posting of personal information on a globally accessible web page constitutes a 'transfer of information' outside the European Economic Area (EEA) for the purposes of data protection legislation. Under the EU’s Data Protection Directive such transfers are prohibited unless one of the exceptions are satisfied.

The case involved a Swedish nurse setting up a web page for her church that included information about the congregation including the fact that one of the church officials had injured her foot. The nurse was charged under the Swedish data protection law with transferring sensitive personal data (i.e. health information) outside the country. ECJ Advocate General Tizzano concluded that the bare mention of a person's name and telephone number on a non-profit website covering parish affairs does not contravene the EU Data Protection Directive.

Like the Swedish data protection laws the UK’s Data Protection Act 1998 also implements the EU’s Data Protection Directive. The issue of posting personal information on a website however has yet to be considered by the UK courts.

Are your website terms and conditions enforceable?

In general, the terms and conditions on a website will be enforceable provided that the user has indicated acceptance. Typically this is done by requiring the user to click an "I accept" icon below the terms and conditions prior to the user being allowed to use the website or place an order. One of the notable US cases in this area is Specht v. Netscape Communications Corp. The trial judge’s decision in 2001 was discussed in the November 2001 IT Bulletin. That decision was appealed and on 1 October 2002, the US Second Circuit Court of Appeals affirmed the earlier ruling and held that some of the terms and conditions on Netscape’s website were not enforceable.

The Netscape software in issue consisted of two components – Communicator which is an internet browser and the Smart Download plug-in (i.e. a program which enhances the Communicator browser). When downloading Communicator, users were obliged to click "I accept" to the terms and conditions. If users attempted to download it without clicking acceptance the download would be automatically aborted. The terms and conditions did not however mention Smart Download. It was not necessary for the plaintiffs to click "I accept" prior to separately downloading Smart Download from a different website. On the page of the website where Smart Download could be obtained the sole reference to the Smart Download licence conditions was located in text that would only have become visible to the user if they scrolled down to the next screen.

On 1 October 2002 the US Second Circuit Court of Appeals held that users neither received reasonable notice of the existence of the license terms nor gave clear assent to those terms before acting on the webpage's invitation to download Smart Download. If there had been some mention of terms and conditions on the download page, Netscape may have had more success with its argument that the users had been given reasonable notice and were bound by the terms and conditions relating to Smart Download. The most prudent practice however would have simply been to require users to click "I accept" on the Smart Download website as a condition of receiving that software.

© Herbert Smith 2002

The information contained in this article is of a general nature. and should not be relied on in that way. Specific advice should be sought about your specific circumstances

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.