The Electronic Commerce (Amendment etc) (EU Exit) Regulations 2019 SI 2019/87 have been made under the European Union (Withdrawal) Act 2018. Their aim is to address deficiencies arising in the Electronic Commerce (EC Directive) Regulations 2002 and the Electronic Commerce Directive (Miscellaneous Provisions) Regulations 2018 due to the withdrawal of the UK from the EU if the UK leaves the EU without an exit deal.
The explanatory memorandum explains that the Regulations make amendments to legislation relating to Directive 2000/31/EC.
Regulation 3 amends the Electronic Commerce (EC Directive) Regulations 2002. This includes amendments to ensure that the Regulations operate effectively once the UK is no longer an EU member state and amending inappropriate references. For example, defining “Community acts” to specify that this means Community acts as existed immediately before exit day, and amending the definitions of “established service provider” and “regulated profession” to reflect that the UK will no longer be a member state. The current definition of “regulated profession” in regulation 2 (interpretation) of the E-commerce Regulations 2002 cross-refers to two Directives, which define “regulated profession” in relation to member states and member states’ qualifications etc. As the UK will no longer be a member state after exit, this is no longer appropriate.
Regulations 4 and 5 of the E-commerce Regulations 2002 implement the country of origin principle, which is a reciprocal arrangement between the United Kingdom and other member states which will no longer exist in a no deal scenario. This instrument removes those provisions in regulation 4 which apply UK requirements to UK providers of information society services (ISS) where they are providing ISS in EEA states. Regulation 5 of the e-Commerce Regulations 2002 implemented the derogation procedure. The new regulations remove those provisions that require an enforcement authority to liaise with other member states and the European Commission, as this will no longer be appropriate after the UK has withdrawn from the EU in a no deal scenario.
Regulation 4 amends the Electronic Commerce Directive (Miscellaneous Provisions) Regulations 2018. It removes provisions that apply specific offences in Scotland, England and Wales and Northern Ireland to service providers established in those parts of the UK respectively where those service providers offer ISS in the EEA. The extreme pornography offence is only referred to in regulation 3 of the e-Commerce Regulations 2018 (which is being removed by the new regulations), and so the definition of that offence (provided in Regulation 2 of the 2018 Regulations) is also removed.
The provisions being amended or revoked all extend to the United Kingdom, except regulations 3, 4 and 5 of the e-Commerce Regulations 2018, which extend to Scotland, England and Wales, and Northern Ireland respectively.
Although not a consequence of these new regulations , the UK’s change in status to a ‘third country’ in the event of a ‘no deal’ EU exit will mean that online services established in the UK will no longer be able to rely on the Country of Origin principle provided for in the E-Commerce Directive. This will result in UK based information society services being newly required to comply with the rules governing online activities within each EEA state in which they operate, in a no deal scenario.
