The e-Commerce Directive (ECD) has been implemented in UK law and the retention of its provisions is vital. Of particular importance are the information requirements that mean digital sellers must let consumers know who they are, where they are located, and how they can be contacted.
It is the consumer confidence created by the information requirements under the ECD and other statutory protections such as cancellation rights and remedies for faulty goods and digital content that will help maintain the boom in online sales which has boosted the UK economy.
It is crucial for the well-being of UK e-commerce that these protections are maintained. There is longer-term risk that diverging from the EU’s digital single market strategy will dent consumer confidence.
The ECD is not perfect: it would benefit from modernisation to spell out its application to modern situations, and extra provisions could be added.
The fact that – as the government has clarified – the UK will not be part of the EU’s digital single market creates an opportunity to shape our e-commerce laws into a framework that best suits UK consumers and businesses. In particular, some of the ECD issues such as spam and e-privacy are better dealt with in the Privacy and Electronic Communications (EC Directive) Regulations 2003.
Meanwhile, it is probably the case that the spam and e-privacy provisions have been largely overtaken by the e-Privacy Directive so various provisions in the UK ECD regulations may not be a great loss.
The UK has been at the forefront of the development of e-commerce, especially in the European context. If our consumers and businesses are to continue to successfully utilise the internet, we need provisions that are in harmony with the key markets of the EU and the US (where similar provisions apply).
We are calling on the government to seek agreement with the EU on the mutual recognition of goods and standards to ensure a digital market that is as frictionless as possible. It is vital that the government provides clarity on the post-Brexit responsibilities and legal rules that will apply to importers of EU goods into the UK market, and vice versa.
CTSI believes that ease of access to the EU market for UK e-sellers and e-buyers is crucial, not only to promote business growth but also to maintain consumer choice. The UK is a European-leader on e-commerce and barriers to the EU market will threaten jobs and prosperity and worsen the consumer experience.
IN FOCUS: Crucial cooperation
Consumer confidence is key. In order for it to continue in e-Commerce it will be necessary for the UK to maintain appropriate, and reciprocal, cross-border enforcement powers after Brexit.
Ideally, the UK should retain the Consumer Protection Cooperation (CPC) model that allows the Competition and Markets Authority (CMA) to tackle issues on behalf of UK and EU consumers through reciprocal enforcement. Without the CPC there is no guarantee that rogue practices affecting UK consumers – but originating from the EU – will be tackled effectively by the remaining 27.
It is crucial that specific powers are retained to investigate and enforce e-commerce breaches, including the power to close down rogue websites, the power to gather information about intermediaries, and explicit powers to undertake covert test purchases.
Finally, many UK e-retailers source goods from across the EU. Post-Brexit these acquisitions may mean the trader becomes an importer with all the various obligations that entails. This could be a serious burden on businesses and potentially a major burden on trading standards services.