Citation, commencement and extent

1.—(1) These Regulations may be cited as the Electronic Commerce Directive (Miscellaneous Provisions) Regulations 2018 and come into force on the day after the day on which they are made.

[^F1 (2) Subject to paragraph (3), these Regulations extend to the United Kingdom.^F1]

(3) Regulations 6 to 10 do not extend to England and Wales insofar as they apply to the human trafficking offence.

Interpretation

2.—(1) In these Regulations—

^M4 “ children's hearings publishing restrictions offence ” means an offence under section 182(2) of the Children's Hearings (Scotland) Act 2011 (publishing restrictions) ;

^M5 “ the Directive ” means Directive 2000/31/EC of the European Parliament and of the Council of 8th June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) ;

^M6 “ extended children's hearings publishing restrictions offence ” means an offence under article 12(2) of the Children's Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (publishing restrictions) ;

^M7 “ extended fatal accident inquiries publishing restrictions offence ” means an offence under article 4(1) of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (Consequential Provisions and Modifications) Order 2016 (publishing restrictions in relation to children) ;

^F2...

^M8 “ fatal accident inquiries publishing restrictions offence ” means an offence under section 22(5) of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (publishing restrictions in relation to children) ;

^M9 “ human trafficking offence ” means an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (trafficking people for exploitation) ;

^M10 “ human trafficking (Northern Ireland) offence ” means an offence under section 2(1) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (human trafficking);

^M11 “ human trafficking (Scotland) offence ” means an offence under section 1(1) of the Human Trafficking and Exploitation (Scotland) Act 2015 (human trafficking) ;

^M12 “ information society services ” has the meaning given in article 2(a) of the Directive ;

^M13 “ intimate images offence ” means an offence under section 2(1) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (disclosing, or threatening to disclose, an intimate photograph or film);

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

“ service provider ” means a person providing an information society service;

^M14 “ threatening communications offence ” means an offence under section 6(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (threatening communications) ;

^M15 “ traffic in prostitution offence ” means an offence under section 22(1) of the Criminal Justice (Scotland) Act 2003 (traffic in prostitution etc.).

^F3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Internal market – service providers established in Scotland

^F53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Internal market – service providers established in England and Wales

^F64. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Internal market – service providers established in Northern Ireland

^F75. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Non-UK service providers – restriction on institution of proceedings

^F86. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Definition of “relevant offence” in regulations 8 to 10

7. In regulations 8 to 10, “ relevant offence ” means—

(a)the children's hearings publishing restrictions offence;

(b)the extended children's hearings publishing restrictions offence;

(c)the extended fatal accident inquiries publishing restrictions offence;

(d)the fatal accident inquiries publishing restrictions offence;

(e)the human trafficking offence;

(f)the human trafficking (Northern Ireland) offence;

(g)the human trafficking (Scotland) offence;

(h)the threatening communications offence;

(i)the traffic in prostitution offence.

Exception for mere conduits

8.—(1) A service provider is not capable of being guilty of a relevant offence in respect of anything done in the course of providing so much of an information society service as consists in—

(a)the provision of access to a communication network; or

(b)the transmission in a communication network of information provided by a recipient of the service,

if the transmission condition is satisfied.

(2) The transmission condition is that the service provider does not—

(a)initiate the transmission;

(b)select the recipient of the transmission; or

(c)select or modify the information contained in the transmission.

(3) Paragraph (1)(b) does not apply if the information is information to which regulation 9 applies.

(4) For the purposes of this regulation, the provision of access to a communication network and the transmission of information in the network includes the automatic, intermediate and transient storage of information for the purpose of carrying out the transmission in the network.

(5) Paragraph (4) does not apply if the information is stored for longer than is reasonably necessary for the transmission.

Exception for caching

9.—(1) This regulation applies to information which—

(a)is provided by a recipient of the service; and

(b)is the subject of automatic, intermediate and temporary storage which is solely for the purpose of making the onward transmission of the information to other recipients of the service at their request more efficient.

(2) A service provider is not capable of being guilty of a relevant offence in respect of anything done in the course of providing so much of an information society service as consists in the transmission in a communication network of information to which this regulation applies if the service provider—

(a)does not modify the information;

(b)complies with any conditions attached to having access to the information; and

(c)in a case to which paragraph (3) applies, expeditiously removes the information or disables access to it.

(3) This paragraph applies if the service provider obtains actual knowledge that—

(a)the information at the initial source of the transmission has been removed from the network;

(b)access to such information has been disabled; or

(c)a court or administrative authority has ordered the removal from the network of, or the disablement of access to, such information.

Exception for hosting

10.—(1) A service provider is not capable of being guilty of a relevant offence in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service if—

(a)the service provider had no actual knowledge when the information was provided that the information was part of the commission of a relevant offence; or

(b)where the service provider subsequently obtained such knowledge, the service provider expeditiously removed the information or disabled access to it.

(2) Paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.

Review

^F911. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .