Whistle-stop tour of the new legal e-landscape

Internet and Electronic Commerce Law in the European Union
February 11, 2000

Electronic commerce is the flavour of the year in legal circles; solicitors who for years held themselves out to be first copyright lawyers and then internet lawyers are now rebranding themselves as e-commerce lawyers. But anyone wanting to learn about this new, fashionable subject will find very little available in print. So a book with the all-encompassing title Internet Law and Electronic Commerce in the European Union selling at a reasonable price must have a ready market. The question is, does the book live up to its title?

John Dickie has set himself a difficult task since no specific electronic commerce laws are in force in the EU. There are a number of directives that are coming into force such as the European distance selling directive, but the great majority of new laws are still either draft directives or twinkles in the eye of a European bureaucrat. So Dickie has had to posit how these laws will develop. He is far too polite an academic to use colloquial terms, so he argues that "the European Union is in the process of displacing Member State autonomy in the regulation of the internet" which, translated, means that the European Commission claims that it alone should decide matters relating to commerce, taxation and the internet, and that national governments should cede their authority in all these spheres. Such a position would be less of a concern were it not for his second point: Dickie suggests "that there is a lack of focus on the individual in the electronic marketplace and a lack of coordination between legislative instruments" - in other words the European Commission just cannot hack it and does not respect or understand individual freedom.

The brevity of this book undermines a lot of its utility. Dickie sets off well with a six-page introduction to the topic. But by attempting to deal with, for example, the draft directive on the distance marketing of financial services in just four pages and the draft directive on electronic money institutions in two pages, he is unable to give anything more than a whistle-stop tour of the legislative landscape. His most useful feature is his use of relevant web addresses in various footnotes.

These can shorten the task of a neophyte reader in locating useful research materials. However, by attempting to cover the whole of the data protection directive, including its history, within an eight-page chapter, Dickie fails to address many of the key issues such as how the principle that data must be collected "fairly and lawfully" should be construed. He cites a couple of cases under the United Kingdom Data Protection Act (1984) in support of a reasonable argument, without comparing and contrasting the scope of the new directive against the old legislation. And the footnotes regarding trans-border data flows and data protection omit the key United States references, websites and publications.

If France's position regarding the export of British beef can be taken as a model of the powers and effect of the European Commission, one really wishes that Dickie had produced a more Anglo-Saxon version of his statement that: "It is questionable whether the Community currently has the enforcement mechanisms necessary to provide a firm legal framework for the electronic marketplace ... The Commission does not have the resources to conduct over-arching reviews of member state implementation and most enforcement action is initiated by complaints ... It takes the Commission between one and two years to reach the stage of a reasoned opinion and then another two or three years for any resulting complaint to come before the Court ... The process is not transparent. Complainants have no right of access to the correspondence between the Commission and the member state. This lack of transparency makes the process susceptible to political interference (and) there is no right of appeal from the Commission's decision."

This book deserves a place in the limited library of e-commerce reference works and should be read (or dipped into) by lawyers, scholars and anyone researching the topic.

Alistair Kelman is visiting research fellow, computer security research centre, London School of Economics.

Internet and Electronic Commerce Law in the European Union

Author - John Dickie
ISBN - 1 84113 031 1
Publisher - Hart
Price - £30.00
Pages - 111

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