Is Europe on the right track to becoming ready for E-Commerce? How effective is recent regulation?

Table of Contents

Declaration

Acknowledgements

Abstract

Table of Legislation

Table of Cases

Is Europe on the Right Track to becoming Ready for E-Commerce?

I. Introduction

II. Outline

III. Background Information
1. What is E-Commerce and why is it special?
2. Why do we regulate?
3. The History of the EU Approach

IV. Illustrative Issues of Regulation on E-Commerce
1. E-Infrastructure
a) The EU Policy
b) Practical Implications
c) Conclusion
2. Electronic Signatures
a) The EU Policy
(1) The E-Signatures Directive
(2) The E-Commerce Directive
b) Conclusion
3. Privacy Protection
a) The Data Protection Directive
b) The US Approach
c) Resume
d) Spam
(1) The E-Communications Directive
(2) The US Approach
(3) ‘Code’ as an Alternative
e) Conclusion
4. Consumer Protection
a) The Distance Selling Directive
b) Resume
c) The E-Commerce Directive
d) Comparison of the EU and the US Approach
e) Conclusion

V. Conclusion

Bibliography

Declaration

This work has not previously been accepted in substance for any degree and is not being concurrently submitted in candidature for any degree.

signed:

date: 25th July 2004

This dissertation is being submitted in partial fulfilment of the requirements for the degree of the LL.M. in International Business Law.

signed:

date: 25th July 2004

This dissertation is the result of my own work and investigation, except where otherwise stated. Other sources are acknowledged by footnotes giving explicit reference. A bibliography is appended.

signed:

date: 25th July 2004

I hereby give consent for my dissertation, if accepted, to be available for photocopying and for inter-library loan, and for the title and summary to be made available to outside organisations.

signed:

date: 25th July 2004

Acknowledgements

Academically, I would like to thank David Poyton, my supervisor, whose advise has been of great value for this dissertation and who has always managed to find some time to help me.

Furthermore, my special thanks go to Pamela Davies, our postgraduate secretary, who cares so much about ‘her’ students and is always helpful and friendly no matter how stressful her day was.

Personally, I would like to thank my parents who have supported me through all my years of school and university and who have always been there to listen to me, to help and to advise me.

Moreover, my grand-parents need to be mentioned who have always stood behind me.

I also have to thank Birgit Schulze for her long-lasting friendship and her incredible patience. Although she has no idea about law, she listened to all my thoughts, doubts and questions and has always tried to assist me.

Lastly, thanks go to Victoria Onabolu for being a great proof-reader and friend.

Thank you all for accompanying me throughout my LL.M. studies.

Abstract

This Dissertation aims to assess the effectiveness and suitability of European regulation in respect to E-Commerce.

Taking the European ‘Lisbon Strategy’ as set out in 2000 as a starting point, this paper examines whether Europe is on the right track to becoming “the most competitive and dynamic knowledge-based economy (…) by 2010”.^[1]

Hereby, the scope of this paper is limited to E-Commerce only as one essential part of a ‘knowledge-based economy’ and an ‘e-ready’ Europe.

After outlining the special nature of E-Commerce, the rationale behind regulation and the historical background of European regulation in this field, this paper concentrates on four issues where the EU has become active in regulating E-Commerce, namely, the essential prerequisite of an existing ‘e-infrastructure’, e-signatures, privacy and consumer protection.

The European approach to each of these issues is assessed to reveal its strengths and weaknesses. Moreover, this European way of regulating E-Commerce is then compared with other regulative attempts. Hereby, special attention is paid to the US approach to regulating E-Commerce which is mostly based on self-regulation.

Thus, this paper comes to the conclusion that Europe is on the right track to becoming ‘e-ready’ in respect to E-Commerce. Basic regulatory decisions have the potential to lead in the right direction, although they do not always provide the most effective solution.

Often European Directives do not reach far enough and are outdated. Thus, they do not address E-Commerce sufficiently, give too much discretion to the Member States and leave prevalent gaps or do not interoperate properly.

Therefore, the European regulation on E-Commerce needs some revision and has to take some brave and innovative steps to establish legal certainty, as well as to create consumer trust and confidence. Following this path active participation can be promoted and consequently, a vibrant E-Commerce market created.

Table of Legislation

(in chronological order)

illustration not visible in this excerpt

Table of Cases

(in alphabetic order)

illustration not visible in this excerpt

Is Europe on the Right Track to becoming Ready for

E-Commerce?

How Effective is Recent Regulation?

I. Introduction

In March 2000 the European Council met in Lisbon and announced its objective

“to make the European Union the world’s most competitive and dynamic knowledge-based economy (…) by 2010”.^[2]

Some aims are realistic – one has a probable chance to reach them; others could be euphorically described as ‘ambitious’ and lastly, there is a category of aims which could rather be defined as ‘castles in the air’ or simply as ‘dreams’.

Did the European Council dream one such ‘dream’ when it made this announcement? Has Europe ever been on its way to becoming the ‘knowledge-based economy’, is it currently on this track, or has it indeed already managed the impossible and built its ‘castle’?

Such a ‘knowledge-based economy’ contains numerous and wide-reaching facets, one of them being E-Commerce. Although its transactions formed only between 0.1% (France) to 1.39% (UK) of all purchases in the retail sector in 2001, it involves huge sums of money (e.g. USD 35.9 Billion in the US) and is growing rapidly.^[3] Thus, there is a huge and prevalent economic potential which has made it subject to European regulation for about the last decade.

The scope of this paper will be limited to E-Commerce only as one essential part of a ‘knowledge-based economy’.

Furthermore, this work will identify four issues in E-Commerce subject to European regulation and will use them in its main part as illustrative examples to analyse the regulation looking at preliminary policy decisions, competing interests of the involved players and the special nature of e-communications. Overall, it will assess the question of whether Europe is on the right track to becoming e-ready in respect to E-Commerce.

Surveys published by the OECD^[4] drew a fatal picture in 2002: the Internet is not at all an accepted means of bargaining in Europe.

Primarily, the use of the Internet in Europe differs drastically. Whereas about 78% of the Swedish citizens use the Internet, only about 20% of the Italians do so. On average, about 50% of EU citizens are online.^[5] Secondly, only a small percentage of those who have Internet access also purchase online; numbers range between 28% of Swedish citizens and 2% of the Italian who buy on the Internet. The EU average may be estimated at around 10%. Moreover, EU businesses use the Internet mainly for marketing or buying, but not for selling.^[6]

Consequently, these figures show that on the one hand, there is a strong divergence concerning the access to the Internet throughout Europe, decreasing from the north to the south which impacts on the development of E-Commerce in Europe. On the other hand, there is also high potential for E-Commerce, as a significant percentage of Europeans have online access. Nevertheless, marketing and business-to-business transactions are still prevalent, whereas online consumer transactions are extremely rare.

Evidently, these figures show that Europe has failed to create its ‘castle’ so far. Nevertheless, it must be asked why this is the case. Why is E-Commerce still underdeveloped, when theoretically, there is such potential? Business-to-consumer transactions, especially, seem to face insuperable obstacles.^[7]

Primarily, it is obvious that E-Commerce can flourish only, if the essential infrastructure is established within the EU. As outlined, there seems to be a lack of this necessary prerequisite in parts of Europe. Therefore, ‘infrastructure’ as the technical barrier to E-Commerce is the first issue to be assessed within this paper.

Other issues concerning E-Commerce which affect consumers, as well as businesses are security and identification.^[8] E-signatures have long been (and still are) at the centre of the discussion about what means are considered essential to make E-Commerce raise to its full height in the EU. Hence, this is the second topic to look at within the scope of this work.

Moreover, the OECD report recognised the following main barriers for consumers to enter into E-Commerce: prevalent uncertainty in e-contracts and concerns towards trust, privacy and security.^[9] Using these barriers as a guideline, the issues of privacy and consumer protection become prevalent, as they seem to address most of the named concerns.

Consequently, this paper will concentrate on the following four areas in order to assess the effectiveness of EU regulation in respect to E-Commerce:

1. ‘e-infrastructure’,
2. electronic signatures,
3. data protection and
4. consumer protection.

It will be argued that generally, Europe is on the right track to becoming ready for E-Commerce.

Basic regulatory decisions have the potential to lead in the right direction, although they do not always provide the most effective solution. Therefore, it will be argued that often the right policy has been chosen to promote E-Commerce but by the wrong means.

II. Outline

The set hypothesis will be approached as follows; initially, in order to provide an insight into the challenges which accompany E-Commerce, a justification for its regulation and a historical outline of the EU reaction so far, some general thoughts on E-Commerce and regulation will be made [ III. ].

Secondly, it will concentrate on the issues acknowledged above [ IV. ] and the effectiveness of the policy developed by the EU in order to deal with the challenges which accompany E-Commerce. These will be assessed by critically analysing the current legislation concerning each recognised issue.

Methodologically, each of these issues will be addressed by looking at the regulating legislative sources governing it, i.e. mostly at European Directives. Their practical impact will be critically examined based on primary sources, such as the stated ‘opinions’ and ‘resolutions’ of parties involved in the drafting process and on numerous academic writers, as e.g. J. Angel, M. Chissick, I. Lloyd and Ch. Reed. Partly illustrative examples of their implementation and where appropriate comparisons with other regulative attempts will be considered.

In general, a methodological ‘top-down’ approach will be followed within this paper starting from the legislation provided on a specific topic by the EU, touching on its national implementation and reaching its practical problems for the individual European.

Finally, the results found in respect to each issue will be used to conclude on the overall effectiveness and efficiency of European regulation on E-Commerce [ V. ].

III. Background Information

Before starting the discussion, the challenges created by the special ‘nature’ of E-Commerce will be identified [ 1. ], as these need to be kept in mind when regulating it. Furthermore, the rationale behind regulation in general will be addressed [ 2. ] in order to basically justify the existence of regulation and thus, the legitimacy of this paper. Lastly, the history of the EU approach on the regulation of E-Commerce will be summarised.[ 3. ].

1. What is E-Commerce and why is it special?

E-Commerce can be defined as “commercial transactions, whether between private individuals or commercial entities, which take place in or over electronic networks”.^[10] It is this electronic medium which makes E-Commerce different; it brings commercial advantages, as well as legal concerns.

Commercially, the advantages of E-Commerce are numerous. On the one hand, it provides cheap marketing methods such as emails and homepages, and gives the possibility of enhancing a business’s geographical trading area by its global access. E-contracts reduce transaction costs, save time and give even small companies a chance to establish global presence. Therefore, the Internet as an enlarged home-market with a high potential of customers offers new ways for traditional commerce.

On the other hand, the Internet also provides new niches for businesses, as it enables users to harvest and store huge amounts of personal information. Personal data has become valuable commodity.

Companies have acknowledged these advantages^[11] and are discovering E-Commerce as a new means of doing business.

However, this commercial development is also accompanied by legal problems.

A borderless nature, global accessibility and multi-jurisdictionality characterise the Internet and make it special,^[12] as there is no legal equivalent. Its speed, its non-physical existence and the transient nature of E-Commerce bare the potential to create new problems, as this does not reflect the traditional situation of concluding contracts. Furthermore, E-Commerce laws have often been developed independently, super-nationally and internationally, e.g. by the EU or the UNCITRAL.^[13]

Thus, existing definitions and presumptions must be reconsidered and the situation and interests of the main players – customers, businesses and governments – re-examined.

2. Why do we regulate?

Facing the above outlined challenges, the EU has decided to respond with legislative regulation.

Regulation can be defined as “a sustained and focused control exercised by a public agency over activities that are valued by a community”.^[14] Thus, it is a form of state intervention in the economy and as this paper concentrates on regulation, initially its rationale must be questioned.

Referring to international trade regulation, it was argued that every regulation must be seen as a simultaneous violation of human rights, infringing contract, property and association rights and hence, it needs to be abolished immediately.^[15]

Supporting this opinion it was further outlined that ‘power’, ‘authority’ and ‘right’ needed to be distinguished. Although governments may have the ‘power’ and often the ‘authority’ to regulate, they would not have the ‘right’; regulation would lie beyond their legitimate scope, as it neglected human rights and free choice.^[16]

It cannot be denied that regulation means state intervention and thus, directly or indirectly intervenes with personal freedom. However, the benefits of regulation must be looked at in order to make a decision about its legitimacy. Among many others there are five main arguments to justify regulation especially in respect to E-Commerce.

Firstly, monopolies and natural monopolies are to be prevented, as they undermine the public interest; due to lacking competition the output can be restricted and prices dictated.^[17] Whereas holding a monopoly means “one seller produces for the entire industry or market”, natural monopolies develop where one economy can serve the whole market at the lowest costs.^[18] Whilst according to R. Baldwin the former situation can be solved by regulation increasing competition, this would be detrimental for the latter, as it would produce higher costs for society.^[19] However, the latter stands in close connection to E-Commerce, as it is likely to occur with telecommunications providers. Here regulation can be used to force its holder to increase its output and to decrease prices as in a competitive situation.

Secondly, regulation can promote trust and confidence by establishing a working legal system which guarantees the enforcement of contracts and legal certainty, as well as try to prevent crime.^[20] This may lead to a reduction of transaction costs and thus to economic efficiency. Both are basic requirements for developing any commerce in an area.

Thirdly, information asymmetry^[21] occurs where consumers are less well informed than businesses which gives them a disadvantage in evaluating competing products which may affect health, consumer protection and security.^[22] Moreover, research and distribution costs, as well as disclosure of risks cannot be seen as an incentive for businesses to provide customers with adequate information. This problem is especially prevalent in E-Commerce due to its lack of physical presence; there is no ‘person behind the till’ the customer could ask. Hence, one rationale of regulation is to protect consumers and to promote “the operation of a healthy and competitive market”.^[23]

Fourthly, anti-competitive behaviour must be restricted as otherwise companies may operate for a short time with prices which do not cover their expenses in order to eliminate competitors. Then, having reached a dominating market position they may increase prices drastically which harms the society at large.^[24] There is an inherent risk to E-Commerce, as this anti-competitive behaviour is likely to occur in respect to service providers or telecommunications services.

Lastly, unequal bargaining power can justify regulation.^[25] The consumer-business-relationship bears the risk of consumers not being able to freely negotiate prices, terms and conditions. When purchasing online consumers can only accept set conditions and standard terms if they want to enter into a contract. Here regulation can be used to ensure minimum standards and protection.

Overall, it can be seen that protectionism serving the public interest is a strong justification for regulation. Following a utilitarian approach, i.e. a policy is to be welcomed if it results in the greatest good for society, it must be argued that the benefits for society outweigh its detriments. Therefore, regulation is generally a legitimate right to intervene if exercised proportionally. However, the question of how to regulate stays unanswered.

This question has been addressed by L. Lessig who developed a 4-tiered system of how to regulate:^[26] he is of the opinion that regulation can be exercised by four modalities, namely ‘law’, ‘social norms’, ‘markets’ and ‘architecture’. According to Lessig the fourth means of regulation is the “physical world as we find it”,^[27] which means the natural barriers surrounding us. He explicitly transferred this set of tools to cyberspace and defined ‘architecture’ as ‘code’, i.e. “the software and hardware that make cyberspace the way it is”.^[28]

In Lessig’s opinion this ‘code’ is “a perfect tool of control”^[29] and therefore the most effective way of controlling cyberspace.^[30]

Although this paper will look primarily at legislative regulation, the theoretical background as provided by Lessig needs to be kept in mind in order to broaden the scope of this work and to consider the effects of alternative forms of regulation.

However, the question of which form regulation should take needs to be discussed separately in respect to each issue in question.

3. The History of the EU Approach

Knowing that the EU decided pro regulation, this paragraph will outline the basic path Europe has followed so far to regulate E-Commerce.

The World Wide Web was made public in 1991 and its popularity has been fast-growing since the first browsers were developed in 1993. Soon, the first online shops opened their ‘e-doors’ in the mid 1990, e.g. ‘amazon.com’ in summer 1995.

Europe reacted in July 1997 and made E-Commerce a key issue on the Commission’s agenda “A European Initiative in Electronic Commerce”.^[31] In this paper the promotion of trust and confidence and the necessity of a European regulatory framework were acknowledged as the key prerequisites to make businesses and consumers enter E-Commerce.

This regulatory framework-to-be was determined to become as minimal as possible, not to interfere where national laws and self-regulation were sufficient, and to meet general interest objectives, e.g. privacy, consumer protection and the wide accessibility to the Internet. Hence, the decision for European regulation on E-Commerce was made.

As a first step to strengthen E-commerce the European Commission published “A European Framework for Digital Signatures and Encryption”^[32] in October 1997, which set out the basic European policy on e-signatures, i.e. in contrast to the US and to the UK supporting the individual right on privacy and refusing to make encryption subject to strict state control. This initiative finally culminated in the E-Signature Directive in 2000.^[33]

Although not in special connection to E-Commerce, the EU also acknowledged the importance of consumer protection in 1997 in the Treaty of Amsterdam.^[34] Already in 1992 the EU had initiated a Directive on consumer protection in distance selling transactions^[35] to protect consumers and to avoid fragmented actions taken by the Member States.^[36] However, this Directive was not launched specially in respect to E-Commerce, as the development of the internet could not be foreseen at this time, but today e-commerce transactions fall into the scope of the Distance Selling Directive and ensure consumer protection online.^[37]

Another non-e-commerce-specific EU initiative can be found concerning privacy protection.^[38] Having a long history reaching back to 1950 when the European Convention on Human Rights and Fundamental Freedoms^[39] was signed, privacy protection found its way into the constitutions of several Member States. In 1981 the Convention 108^[40] ensured privacy protection concerning the automatic processing of personal data and in 1995 the Data Protection Directive^[41] set out basic privacy and data protection principles. Later, technical progress made the 1997 Directive^[42] necessary, which transferred the general principles on the processing of personal data to the telecommunications sector. In 2002 this Directive was updated again.^[43]

Another important step in actively promoting E-Commerce was the liberalisation of telecommunications services by the beginning of 1998 with its preliminary goal of decreasing online access costs by competition.

In March 2000 the ‘Lisbon Strategy’ and its high aims were born at the European Council. With this strategy it should be ensured that Europe “fully benefits from the changes which the information society is bringing”.^[44] The strategy aims to bring European citizens online by cheaper, faster and more secure Internet, to make them ‘digitally literate’ and to promote trust and confidence in the Internet in order to stimulate its use. From now on European initiatives concentrated even more on ‘e-infrastructure’.

Nevertheless, the Brussels Regulations^[45] were pushed through and the “eEurope Action Plan 2002”^[46] was released in June 2000 to realise the Lisbon aims. This plan set out the main European policy on E-Commerce between 2000 and 2002. It tried to accelerate E-Commerce by establishing an internal market, boosting consumer confidence and bringing public procurement online.^[47]

The ‘GoDigital’ initiative was developed to encourage small and medium sized enterprises (SMEs) to go online.^[48] The necessity of this initiative becomes evident after having a look at the 2002 survey “E-Commerce in Europe” which shows a drastic gap between large companies and SMEs in respect to their e-readiness. Whereas 81% of the large companies had Internet access (between 99% in Sweden and 70% in Luxemburg), only 67% of the SMEs had (between 91% in Finland and 50% in Greece).^[49] Only between 3 and 31% of the European SMEs used the Internet for selling^[50] and only 44% had their own homepage (between 6% in Spain and 67% in Sweden). Maintenance and development costs, uncertainty in payment, contracts, delivery and guarantee were stated to be the main barriers for SMEs to avoid a more extensive Internet use.^[51]

A conference was launched to support the exchange of experience among SMEs and to assess their problems. Hereby, the European Commission understood support to be essential for the acceleration of E-Commerce, as SMEs were the “backbone of the European economy”, making up 99% of the EU enterprises, but refused to directly subsidise them. Instead the Commission saw its task in facilitating the exchange of experience and to help SMEs to help themselves.^[52]

[...]

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^[1] European Commission “The Lisbon Strategy” at <http://europa.eu.int/comm/lisbon_strategy/key/index_en.html> (visited 17.8.04), para. “Introduction”

^[2] European Commission “The Lisbon Strategy” at <http://europa.eu.int/comm/lisbon_strategy/key/index_en.html> (visited 17.8.04), para. “Introduction”

^[3] OECD “Measuring the Information Economy 2002“at <http://www.oecd.org/dataoecd/34/35/2771139.pdf> (visited 4.3.04), p. 66

^[4] ibid, p. 62; OECD “The latest official statistics on electronic commerce“, 2001 at <http://www.oecd.org/dataoecd/34/61/2077266.pdf> (visited 4.3.04)

^[5] OECD (2002) op. cit. n. 3, p. 62

^[6] see. ibid, pp. 62, 63

^[7] see Byrne, D. “Cyberspace and Consumer Confidence” 2000, at <http://europa.eu.int/comm/dgs/health_consumer/library/speeches/speech55_en.html> (28.3.04), para. “Foreword”

^[8] Deiss, R. “E-Commerce in Europe”, Statistics in Focus Theme 4, 12/2002, at <http://europa.eu.int/comm/eurostat/Public/datashop/print-product/EN?catalogue=Eurostat&product=KS-NP-02-012-__-N-EN&mode=download> (22.07.04), Figure 3

^[9] OECD (2001) op. cit. n. 4 and OECD (2002) op. cit. n. 3, p. 70

^[10] Davies, L. “A Model for Internet Regulation”, 1998 at <http://www.scl.org/content/ecommerce> (visited 28.3.04)

^[11] see OECD (2002), op. cit. n. 3, p. 70

^[12] Rowland, D./Macdonald, E. ”Information Technology Law“ (2nd ed., London: Cavendish Publishing 2000), pp. 252-253

^[13] Snijders, H./Wheatherill, St. “E-Commerce: National Law and Transnational Topics and Perspectives” (The Hague: Kluwer Law International 2003), pp. 1-2

^[14] Selznick, P. “Focusing Organizational Research on Regulation“ in Noll, R. (ed.): Regulatory Policy and the Social Sciences (Berkley, Calif. 1985), p. 363, quoted by Ogus, A. “Regulation: Legal Form and Economic Theory” (Oxford: Clarendon Press 1994), p.1

^[15] McGee, R. “The Moral Case for Free Trade“, (1995) 29(1) JWL 69, at pp. 69, 76

^[16] ibid pp. 70-75

^[17] Baldwin, R./Cave, M. “Understanding Regulation“ (Oxford: Oxford University Press 1999), pp. 6-7; see Breyer, S. “Typical Justifications for Regulation” in: Baldwin, R. (ed.): A Reader on Regulation (Oxford University Press 1998), pp. 59-92,at pp.59-65; see Ogus (1994) op cit. n. 14, pp. 30-33

^[18] Baldwin/Cave (1999) op. cit. n. 17, pp. 6,7

^[19] ibid, p. 7

^[20] see Ogus (1994) op. cit. n. 14, pp. 17-18

^[21] see Baldwin/Cave (1999) op. cit. n. 17, p. 12

^[22] see Breyer (1998) op. cit. n. 17, pp. 72-74; see Ogus (1994) op. cit. n. 14, pp. 38-41

^[23] see Baldwin/Cave (1999) op. cit. n. 17, p. 12

^[24] ibid, p. 13

^[25] ibid, p. 14; see Breyer (1998) op. cit. n. 17, p. 79

^[26] Lessig, L. “The Law of the Horse: What Cyberspace might teach”, (1999) 113 HLR 501, pp. 507-510 and Lessig, L. “Code and other Laws of Cyberspace” (New York: Basic Books, 1999), Ch. 7

^[27] Lessig (1999) HLR op cit no. 26, p. 507

^[28] ibid, pp. 508/509

^[29] Lessig (“Code” 1999) op. cit. n. 26, p. 6

^[30] Lessig (1999) HLR, op.cit. n. 26, pp. 514, 522

^[31] European Commission “A European Initiative on E-Commerce”, COM(1997) 157 final at <http://europa.eu.int/scadplus/printversion/en/lvb/132101.htm> (22.7.04)

^[32] European Commission “A European Framework for Digital Signatures and Encryption”, COM(97) 503; OJC 292/01, 21.9.1998

^[33] Directive 1999/93/EC of the European Parliament and of the Council on a Community Framework for Electronic Signatures, 13. December 1999; OJL 13/12, 19.1.2000

^[34] Treaty of Amsterdam amending the Treaty on the European Union, the Treaties establishing the European Communities and certain related acts; OJC 340/115, 10.11.1997, Art. 129a

^[35] Directive 97/7/EC of the European Parliament and of the Council on the Protection of Consumers in respect of Distance Contracts, 20. May 1997; OJL 144/19, 4.6.1997

^[36] European Commission “Press Release IP/97/495 of 5.6.1997” at <http://europa.eu.int/comm/consumers/cons_int/safe_shop/dist_sell/dist02_en.htm> (13.8.04)

^[37] ibid

^[38] see European Commission “Privacy Protection“ at <http://europa.eu.int/information_society/topics/ecomm/all_ about/todays_framework/privacy_protection/index_en.htm>(13.8.04)

^[39] European Convention on Human Rights and Fundamental Freedoms, 4. Nov. 1950; at <http://www.pfc.org.uk/legal/echrtext.htm> (visited 17.8.04)

^[40] Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981, 28. January 1981, at <http://conventions.coe.int/Treaty/EN/Treaties/Html/108.htm> (visited 22.7.04)

^[41] Council Directive 95/46/EC on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data, 24. October 1995; OJL 281/31, 23.11.1995

^[42] Directive 97/66/EC of the European Parliament and the Council concerning the processing of personal data and the protection of private life in the telecommunication sector, 15 December 1997; OJL 24/1, 30.1.1998

^[43] Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, 12. July 2002; OJL 201/37, 31.7.2002

^[44] European Commission “eEurope – An Information Society for All”, COM(1999) 687 final at <http://europa.eu.int/scadplus/leg/en/lvb/124221.htm> (visited 20.5.04), para. 3

^[45] Council Regulation (EC) No 44/2001 on the Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters, 22. December 2000; OJL 12/1, 16.01.2001

^[46] European Commission “eEurope 2002 - Commission Communication of 13 March 2001 on eEurope 2002”, COM(2001) 140 final at <http://europa.eu.int/scadplus/leg/en/lvb/124226a.htm> (visited 20.5.04)

^[47] ibid, para. 3

^[48] see European Commission “Go Digital: Help smaller and mediums sized enterprises “go digital” ” COM(2001) 136 final at <http://europa.eu.int/scadplus/leg/en/lvb/n26003.htm> (visited 20.5.04), an initiative consisting of three ‘action lines’, among others improving access, information and promoting advantages of being online, providing loan guarantees and trainee programmes; SMEs are enterprises of 10-249 employees

^[49] Deiss (2002) op. cit. n. 8, table 1

^[50] ibid, table 4

^[51] ibid, figure 10

^[52] European Commission “SMEs – Europe’s Future, eEurope SMEs GoDigital Conference Report”, 2002 at <http://www.silocal.org/datos/si/04/05.%20godigital_smes.pdf> (visited 22.7.04), pp. 5, 6