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1. —(1) These Regulations may be cited as the Electronic Commerce Directive (Adoption and Children Act 2002) Regulations 2005 and shall come into force on 30th December 2005.

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Interpretation

2. —(1) In these Regulations—

“ the Act ” means the Adoption and Children Act 2002 ;

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“ electronic commerce directive ” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular, electronic commerce, in the Internal Market (Directive on electronic commerce);

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“ information society service ” means an information society service within the meaning of article 2(a) of the electronic commerce directive;

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“ recipient of the service ” means any natural or legal person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible; and

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(2) For the purposes of these Regulations—

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(d) the responsible authorities are—

(i) in relation to England, the Secretary of State;

(ii) in relation to Wales, the National Assembly for Wales;

(iii) in relation to Scotland, the Scottish Ministers;

(iv) in relation to Northern Ireland, the Department of Health, Social Services and Public Safety;

(v) in relation to England, [^F14 Her Majesty’s Chief Inspector of Education, Children’s Services and Skills ^F14] ; and

(vi) in relation to Scotland, [^F15 Social Care and Social Work Improvement Scotland ^F15] .

Application of sections 92, 93, 123 and 124 of the Act to UK-established providers

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Restrictions on arranging adoption and advertising not to apply to incoming providers

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Regulation 4 not to apply in certain circumstances

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The policy conditions

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The procedural conditions

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Urgent cases

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Defence to section 124 for mere conduits

9. —(1) A person providing an information society service which consists of the transmission in a communication network of information provided by a recipient of the service or the provision of access to a communication network shall not be guilty of an offence under section 124 of the Act ( offence of breaching restriction under section 123 ) as a result of that transmission where that person—

(a) did not initiate the transmission;

(b) did not select the receiver of the transmission; and

(c) did not select or modify the information contained in the transmission.

(2) For the purposes of paragraph (1) above, the acts of transmission and of provision of access include the automatic, intermediate and transient storage of the information transmitted where—

(a) this takes place for the sole purpose of carrying out the transmission in the communication network; and

(b) the information is not stored for any period longer than is reasonably necessary for the transmission.

Defence to section 124 for caching

10. A person providing an information society service which consists of the transmission in a communication network of information provided by a recipient of the service shall not be guilty of an offence under section 124 of the Act as a result of that transmission where—

(a) the information is the subject of automatic, intermediate and temporary storage where that storage is for the sole purpose of making more efficient onward transmission of the information to other recipients of the service upon their request; and

(b) that person—

(i) did not modify the information;

(ii) complied with conditions on access to the information;

(iii) complied with any rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

(iv) did not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and

(v) acted expeditiously to remove or to disable access to the stored information upon becoming aware that the information at the initial source of the transmission had been removed from the network, or access to it had been disabled, or that a court or a responsible authority had ordered such removal or disablement.

Defence to section 124 for hosting

11. —(1) Notwithstanding section 124(2) of the Act and unless paragraph (2) applies, a person providing an information society service which consists of the storage of information provided by a recipient of the service shall not be guilty of an offence under section 124 of the Act as a result of that storage unless—

(a) it is proved that he knew that section 123 applied to the information; or

(b) upon becoming aware that section 123 applied to the information, that person failed to act expeditiously to remove or to disable access to the information.

(2) This paragraph applies where the recipient of the service was acting under the authority or the control of the service provider.