Gibraltar: E-Commerce Legislation

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- Gibraltar the EU Directive on a Legal Framework for E-Commerce
- Gibraltar the EU Reglatory Framework for Electronic Communications
- Gibraltar Local Legislation
- Gibraltar Telecommunications

Gibraltar The EU Directive on a Legal Framework for E-Commerce

As part of the EU, Gibraltar is of course subject to the developing body of EU law that impacts on e-commerce. There is already a fair amount of this, but the most important part is the Directive to establish a coherent legal framework for e-commerce development within the Single Market. The Directive was finally approved on 4th May 2000. Its key components were as follows:

The directive implemented the principles of free movement of services and freedom of establishment.

The most contentious issue related to the liability of online service providers. The Directive established an exemption from liability for intermediaries where they play a passive role as a "mere conduit" of information from third parties and limits service providers' liability for other "intermediary" activities such as the storage of information.

The Directive also clarified that the Internal Market principle of mutual recognition of national laws and the principle of the country of origin must be applied to Information Society services.

Place of establishment. The Directive defined the place of establishment as the place where an operator actually pursues an economic activity through a fixed establishment, irrespective of where web-sites or servers are situated or where the operator may have a mailbox.

Transparency. The Directive required Member States to oblige Information Society service providers to make available to customers and competent authorities in an easily accessible and permanent form basic information concerning their activities (name, address, e-mail address, etc).

On-line contracts. The Directive required Member States to remove any prohibitions or restrictions on the use of electronic contracts. In addition, it ensured legal security by imposing certain information requirements for the conclusion of electronic contracts in particular in order to help consumers to avoid technical errors.

Commercial communications. The Directive defined commercial communications (such as advertising and direct marketing) and subjected them to transparency requirements.

Implementation. The Directive strengthened mechanisms ensuring that existing EU and national legislation is enforced. This included encouraging the development of codes of conduct at EU level, stimulating administrative co-operation between Member States, and facilitating the setting up of effective, alternative cross-border on-line dispute settlement systems.

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Gibraltar The EU Regulatory Framework for Electronic Communications

In July 2000 the Commission published a package of proposals for a new Regulatory Framework for electronic communications, which it sought to have in place across the EU from July 2003. Directive 2002/21/EC entered into force on April 24, 2002 and the deadline for introducing the Directive in member states was set for July 24, 2003, with the following main components:

• Proposal for a directive on a common regulatory framework for electronic communications networks and services
• Proposal for a directive on universal service and users’ rights relating to electronic communications networks and services
• Proposal for a directive on access to, and interconnection of, electronic communications networks and associated facilities
• Proposal for a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector
• Proposal for a directive on the authorisation of electronic communications networks and services
• Proposal for a regulation on unbundled access to the local loop
• Proposal for a decision on a regulatory framework for radio spectrum policy in the European Community

On December 18, 2009, new measures for EU telecoms regulation came into force. These measures represented a major overhaul of Directive 2002/21 and covers areas such as competition, consumer rights and security within the EU and paved the way for the setting up of a new regulatory body. The Body of European Regulators for Electronic Communications (BEREC) has replaced the European Regulators Group (ERG) and held its first meeting in January, 2010.

BEREC consists of a Board composed of the heads of the 27 National Regulatory Authorities and is assisted by an Office. The Office is a Community Body managed by a Management Committee in which all NRAs and the Commission are represented.

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Gibraltar Local Legislation

The Electronic Commerce Ordinance was passed on March 5, 2001, by the Gibraltar parliament's House of Assembly, and was viewed as an important step in Gibraltar's development as an e-commerce hub to rival its nearest competitors, such as Guernsey, Malta and the Isle of Man.

The government described its bill as follows: 'the legislation is aimed at "facilitating the use of electronic means for transmitting and storing information" and affords legal recognition to transactions effected electronically. It also provides a framework for the accreditation of electronic signatures and determines the activities and liability of service providers.'

The Bill is divided into four parts:

Part I Information Society Services

This part contains important definitions that are pivotal to the main body of the legislation. In particular definitions are provided for “service provider”, “established service provider”, “information society services” and “intermediary service provider”.

Sections in this part include, Interpretation, General requirements for service providers, Commercial Communications, Contracts concluded by electronic means, Information in relation to and conclusion of electronic contract. Approved codes of conduct and prescribed standards.

Part 1 provides for the general requirements of service providers and various exclusions of liability in specific circumstances. Section 8 provides that a service provider is not subject to any civil or criminal liability in respect of the information contained in a data message if either he was not the originator of the message, has not modified the message in any way, has no actual knowledge that the information in the message could give rise to criminal liability or follows the procedure set out in section 9 which explains the procedure for dealing with unlawful, defamatory, etc information.

Power is also given to approve codes of conduct for intermediaries and other persons who use electronic means to provide goods, services or information.

Part II Issue of Accreditation Certificates for Electronic Signatures

This part contains the following sections: Interpretation, Approved providers of accreditation certificates, Code of conduct for approved certification service providers, Grant, refusal and revocation of approval, Legal effect of electronic signatures, Code-names, Liability of intermediary service, Code of conduct for approved certification service providers.

Part 2 establishes the framework for the authorisation and recognition of certification service providers. Applications for authorisation are to be made to the Minister for Trade, Industry and Telecommunications in the manner prescribed in sections 12 & 13. The recognition of overseas providers or classes or classes of such providers is dealt with through notice in the Gazette in the circumstances set out in section 14. Sub-section (2) provides the basis upon which recognition is granted. The Minister will not recognise an overseas provider or class of such provider, unless it is established either within the EU and the body giving the authorisation is designated for that purpose in accordance with the relevant law of a Member State, or in a territory and by a body that for the time being are prescribed for the purposes of this Part.

Section 15 outlines the legal effect of electronic signatures supported by an accreditation certificate and Section 17 deals with the civil liability of approved certificate providers. Subject to certain qualifications, the section imposes a duty of care on approved certification providers in favour of any person who reasonably relies on the accuracy of the accreditation certificate and provides for an action in damages in respect of any loss or damage suffered by reason of a breach of this duty.

Part III Transactions Effected by Electronic Means

Sections 19 & 20 deal with the requirements to present or retain originals and to produce documents. Section 21 outlines the conditions for retention of documents etc, in electronic form.

Sections 22 & 23 make provision for various important issues including the admissibility and evidential weight of data messages in legal proceedings and matters relevant to the concluding of contractual obligations through electronic communication.

Part IV General

This part contains a number of general provisions. Section 24 provides that in the prescribed circumstances an offence committed by a body corporate may be attributed to any director, manager, secretary or similar officer.

Section 25 introduces a general power for the making of any necessary regulations by the Minister and section 26 extends the restrictions on service providers.

The Electronic Commerce Ordinance forms part of a wider strategy by the government to transform Gibraltar into an international e-business centre. The fact that the Ordinance contains provisions on electronic signatures and other EU directives is highly significant. Taken together with the liberalisation of telecommunications, it should stand Gibraltar in good stead when it comes to attracting e-business to the Rock.

In December, 2005, the Gibraltar House of Assembly passed the Gambling Ordinance 2005, which modernised the elderly gaming legal framework, and created a statutory licensing and regulatory framework, in the light of Gibraltar’s status as a leading jurisdiction for on-line gaming.

The Gambling Act 2005, the full text of which can be found here, came into force in October 2006.

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Gibraltar Telecommunications

In October 2000, the Gibraltar House of Assembly passed the Telecommunications Ordinance 2000, which transposed into Gibraltar law (when read with the corresponding regulations) the relevant telecommunications-related EU directives. In 2001 the House finalised another Ordinance which established the Gibraltar Telecommunications Regulatory Authority; this Authority, together with the relevant minister, has a statutory duty to ensure "fair and effective competition" in the commercial operation of telecommunications networks and the provision of telecom services in, from or through Gibraltar.

The Telecommunications Ordinance did away with the Rock's existing telecommunications monopoly. Previously the local telephony service was operated by Nynex under a government licence (the government owned half the company) and the international link, via the UK by satellite, was run by GibTel which was a joint venture between the Gibraltar government and British Telecom plc. In mid-2000, Nynex sold its 50% share to BT so in practice both telecommunications companies were 50/50 joint ventures between BT and the Gibraltar government. BT's stake was then acquired by Verizon Communications.

GNC and Gibraltar Telecommunications International Limited (Gibtel) were brought into common ownership in 2001, and rebranded as Gibtelecom in 2002. Gibraltar NYNEX Communications Limited (GNC) changed its name to Gibtelecom Limited as from 1 October 2003. Gibtelecom was then a joint venture company owned jointly by Verizon Communications of the USA and the Government of Gibraltar. The Gibtelecom Group comprises Gibraltar Nynex Communications (GNC), Gibraltar Telecommunications International (Gibtel) and GNC's wholly owned Internet services subsidiary company, Gibconnect.

In April 2007, it emerged that Telekom Slovenije had completed its purchase of Verizon Communication's 50% shareholding in Gibtelecom.

The Telekom Slovenije group is the main telecommunications provider in Slovenia, serving a population of 2 million people with fixed line and internet services, together with mobile services through its subsidiary, Mobitel.

Of course, hanging over the future of Gibraltar telecommunications was the Spanish intransigence over freeing up additional phone numbers. While Gibraltar had said for some time that this did not affect capacity as such in terms of bandwidth, and thus might not matter to an operator whose interest was in Gibraltar as an international hub, it surely must have compromised the attractiveness of the Rock as a base for call centres or other intensive telecommunications users, at least to an extent.

However, in September 2006, agreement over a number of outstanding issues relating to Gibraltar was reached between the UK's Minister for Europe, Geoff Hoon, Spanish Foreign Minister Migel Angel Moratinos and Gibraltar's Chief Minister, Peter Caruana.

Areas covered by the agreements included the expanded use of Gibraltar Airport, the full inclusion of Gibraltar in EU air liberalisation measures, recognition by Spain of Gibraltar's '350' international dialling code and unblocking by Spain of Gibraltar mobile telephone roaming in Spain.

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