Review of Dickie J, Internet
and Electronic Commerce Law in the European Union (Oxford: Hart, 1999)
Kamiel J Koelman
Institute
for Information Law, University of Amsterdam
1.
Anyone who has ever had anything to do with rulemaking at the level of
the European Union knows that it often is not easy to get a grasp on
the meaning and impact of the legislative instruments. Not only does he
or she have to deal with the "Euro-speak" which veils the ins and outs
for the layman and even the expert, but it may also be hard to find out
about the mere existence of the supranational regulations. In his book
about Internet and e-commerce law in the European Union, John Dickie
provides the reader with the opportunity to overcome such problems. He
gives a quick and intelligible introduction to all legislative
initiatives relating to what is sometimes called the "Information
society".
2.
The Union is rather active in the field of regulating cyberspace and
has drafted and enacted many Directives that are specifically intended
to have an impact in the online digital environment. EU Directives do
not, in principle, have direct effect against individuals but are aimed
at the Member States who have to transpose them into national law. Only
after implementation are the citizens bound by the rules of a
Directive.
3.
Dickie rightly states that EU law "is a labyrinth, clouding the rules
for all market actors". For example, to get an insight into how online
contracting is - or will be - dealt with, one will have to take a look
at the so-called E-Commerce Directive (on the formation of contracts),
the Distance Contracts Directive (providing consumer protection in the
area of online contracting), and the Directive on Electronic
Signatures. Apart from these (draft) Directives, which are specifically
aimed at the digital networked environment, there are several others
that may be of importance, such as the Directive on Unfair Terms in
Consumer Contracts and the Directive on Consumer Guarantees.
4.
Of course, the Internet challenges lawmakers with respect to many more
issues. The European Union has drafted and/or enacted Directives on
electronic money institutions, distance marketing of financial
services, electronic payment systems, copyright and related rights,
commercial communications, conditional access services, injunctions for
the protection of consumer interests and the protection of personal
data. The book provides a short overview of the contents of all
mentioned rulemakings. Furthermore, several Conventions are briefly
touched upon which determine jurisdiction over contracts and the law
applicable to contractual obligations.
5. The last chapter of the book provides a general analyses of the "foci
and future" of Community measures concerning the electronic
marketplace. Dickie notices a lack of coherence between Directives
originating from the Commission's Consumer Protection Directorate and
those initiated by its Internal Market Directorate. The latter tend to
take little account of the interests of the individual. As a result,
the Data Protection Directive, for instance, paradoxically does not so
much protect individuals against the processing of personal data, as it
focuses on the liberalization of the market for personal data.
6.
According to the author, due to the borderless nature of the electronic
market place, it is a matter of course for it to be regulated at the
European level. However, at the same time he observes that the true
level of harmonization will depend on the effective enforcement of
Community electronic commerce law. The European Commission may be
empowered to sue Member States for failure to fulfil their Community
obligations, but the procedures involved are considered far from
perfect and not very effective. Thus, it remains to be seen to which
extent the Union's legislative activity will really lead to one unified
European electronic marketplace.
7.
The book ends with a some reflections on a "World Government Model" and
the "Brave New World" of self-regulation as alternatives for Community
regulation of electronic commerce. Despite the fact that the
Information society may call for a "World Code on Electronic Commerce"
and that there are some international non-binding instruments - such as
OECD guidelines - which may have an impact on national or regional
laws, it is unlikely that there will be any global legislation in the
near future. The cultural differences between countries, for instance
with regard to free speech, are simply too large to overcome.
Self-regulation, on the other hand, may be feasible to govern business
to business relations, where the actors involved are mostly known to
each other, but it may be less well suited if the market place consists
of a large, disparate and partly anonymous group of market actors, as
is generally the case where electronic commerce is concerned. For the
time being, therefore, Dickie sees the role of the Community as a
crucial one.
8.
All in all, the book provides a valuable overview of the European
Union's Internet and e-commerce law. Without going too deeply into the
details, the author points out some of the ambiguities of the (draft)
Directives and shows how they may interact. One, unavoidable, drawback
of such an exercise at this stage is that it is bound to be outdated,
even before it is published. Of the draft Directives discussed, several
have had new versions issued or enacted. Nevertheless, as the general
tendency of most regulations will stay the same, the book can still be
recommended as a "rough guide" to Internet and Electronic Commerce Law
in the European Union. Of course, an update would only make it more
commendable.
