E-Commerce Regulations and the Bar

The E-Commerce Regulations came into effect on 21st August 2002. The IT Panel of the Bar Council has provided the following questions and answers which it is hoped will assist the Bar:

Q What are these Regulations, what do they do, and since when?

A The Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No. 2013), have re-enacted a European Directive the main aim of which is to remove barriers to the provision of goods and services by e-mail throughout the European Community, while ensuring that consumers know how to trace advertisers and suppliers of goods and services. These straightforward aims are considerably obscured by the jargon in which the Regulations are expressed. The Regulations mostly came into effect on 21 August 2002. There are already some amending Regulations clarifying their application to particular statutes.

Q Do they apply to a Chambers Website promoting Chambers and its members, or to a topical Newsletter that a particular practice group in Chambers sends by email to a selection of solicitors free of charge?

A In theory they do, because the Website and the Newsletter each constitutes a “commercial communication” in respect of “information society services”, as each of these phrases is defined in Regulation 2(1). In practice there will be no problem in complying with the requirements, for example that Chambers is clearly identifiable (Regulation 7(b)).

Q What about a solicitor sending a barrister instructions by e-mail, or the barrister providing a written Advice or a draft Statement of Case by e-mail?

A There are specific exclusions providing that nothing in the Regulations applies to a lawyer’s representation of a client and defence of his interests before the courts” (Regulation 3(1)(d)(ii)). In the case of non-contentious legal advice (or even in the unlikely event that “defence of his interests” excludes “prosecution of his interests”), there is most unlikely to be any practical problem, first because the solicitor is not a “consumer” as defined in Regulation 2(1), and second because there will be no concealment of what is being done and between whom.

Q Suppose a barrister allows paying subscribers access to the barrister’s Website, where the barrister provides weekly summaries of recent developments in an area of special expertise? Or suppose a barrister decides to send e-mails to all of the lawyers whose names and addresses appear in a legal directory for a given state within the European Community advertising readiness to provide answers by e-mail to questions of English law in non-contentious matters, and in return for payment at an hourly rate?

A It is necessary to review the Regulations to ensure that the Website and the outgoing e-mails comply with applicable provisions. Once one has penetrated the jargon in which the Regulations are expressed, compliance is unlikely to be very onerous. For example, the barrister will need to publicise as well as his or her professional name, address and e-mail address (Regulation 6(1)(a) to (c)), the fact that he or she is a barrister subject to the Code of Conduct of the General Council of the Bar (Regulation 6(1)(f)), from where to download the Code of Conduct, and his or her Vat number (Regulation 6(1)(g)). Regulation 9 has further provisions with regard to agreements. Attention should also be paid to the Distance Selling Regulations.

Q Are there other provisions that might affect advice a barrister gives to lay clients?

A Yes, there are specific Regulations dealing with information that needs to be given by suppliers to consumers ordering and paying for goods and services on the Internet, the liability of the company that provides the Internet Service, or hosts the Website, and so on. It should not be overlooked that other legislation may apply, for example the Distance Selling Regulations, statutes on betting, and so on.

Q Are there sanctions for non-compliance with the Regulations?

A Yes, the Regulations provide civil remedies by way of an order to comply (Regulation 14), the right to rescind a contract (Regulation 14), and a claim for damages for breach of statutory duty (Regulation 13).

Q Can the text of the Regulations be downloaded from the Internet free of charge?

A Yes. Connect to www.legislation.hmso.gov.uk; click on “Statutory Instruments”; scroll down past “Full text . . . .” and click on “2002”, then on “Nos. 2000-2099; and then on No. 2013. To download use “Save as” or equivalent.