Electronic Commerce Directive 2000

The Electronic Commerce Directive (2000/31/EC) in EU law sets up an Internal Market framework for online services. Its aim is to remove obstacles to cross-border online services in the EU internal market and provide legal certainty for businesses and consumers. It establishes harmonized rules on issues such as the transparency and information requirements for online service providers; commercial communications; and electronic contracts and limitations of liability of intermediary service providers. Finally, the Directive encourages the drawing up of voluntary codes of conduct and includes articles to enhance cooperation between Member States.

There was wide-ranging discussion within EU institutions about how to revise this directive which finally happened with the adoption of the Digital Services Act 2022.

In the 1990s, when the general public started using the internet on a larger scale, the European Commission decided to set up a framework to remove obstacles to cross-border online services in the Internal Market. At that time, legal boundaries to cross-border online services were still largely prevalent, which resulted in a lack of legal certainty for online services. In order to address this issue, as well as promote electronic commerce in the EU and enhance competitiveness of European service providers, the e-Commerce Directive was adopted in 2000. The e-Commerce Directive aimed to achieve this objective by offering a flexible, technology-neutral and balanced legal framework.

The regulation applies to information society services, defined as "any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service". The provisions of the e-Commerce Directive thus apply to certain activities or services and not to a specific category of providers. In this context, an information society service includes a broad range of online services, e.g. providing transmission of information via communication networks, online hosting, providing access to a communication network, etc.

Recital 18 adds that when a service is free to the consumer, that does not mean that it falls outside the scope of the e-Commerce Directive in so far as it represents an "economic activity […] such as those offering on-line information or commercial communications, or those providing tools allowing for search, access and retrieval of data". This was reiterated by the European Court of Justice in the Papasavvas case, where the court ruled that a website that was indirectly remunerated through income generated by advertisements could also be qualified as an 'information society service'.

The European Court of Justice also attempted to clarify whether collaborative economy services are included in the personal scope of the Directive. In the Uber Spain case it ruled that Uber's electronic booking platform is not an information society service, but rather "a service in the field of transport", as its "intermediation service must be regarded as forming an integral part of an overall service whose main component is a transport service". In a subsequent ruling, the Court found that Airbnb is an information society service, because the intermediation service forms an integral part of the overall service. With these case, the Court has taken a case-by-case approach in determining whether services in the collaborative economy can be classified as information society services.

The e-Commerce Directive applies to information society services established in the EU. An information society service is established in the EU when it effectively pursues an economic activity using a fixed establishment for an indefinite period of time. The mere presence and use of technical means and technologies does not constitute in itself an establishment of the provider. Information society services that are established outside the Union are thus not captured by the provisions in the e-Commerce Directive.

The EU e-Commerce Directive was incorporated into the law of the United Kingdom by the Electronic Commerce Regulations 2002. After the UK left the EU in 2020, EU regulations no longer apply directly to the UK unless specifically agreed, but the 2002 regulations apply.