UK Offence Report

Internal market

regulation 4(6) of The Electronic Commerce (EC Directive) Regulations 2002

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

6 To the extent that anything in these Regulations creates any new criminal offence, it shall not be punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than £100 a day.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 4(6)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the Electronic Commerce (EC Directive) Regulations 2002.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

this is the level 5 value when the instrument came into force (2002-08-21); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
30 July 2002
In force from
21 August 2002
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations implement Articles 3, 5, 6, 7(1), 10 to 14, 18(2) and 20 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (“the Directive”) except in those areas covered by the measures referred to in the paragraph below. These Regulations should be read with the Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2002 (S.I. 2002/1776), The Electronic Commerce Directive (Financial Services and Markets) (Amendment) Regulations 2002 (S.I. 2002/2015) and the Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (Electronic Commerce Directive) Order 2002 (which is expected to be made shortly and to come into force on 21st August 2002). They make parallel provisions in those areas subject to regulation by the Financial Services Authority under the Financial Services and Markets Act 2000. Regulation 3(1) sets out those matters excluded from the scope of the Regulations. Regulation 3(2) provides that the Regulations do not have prospective effect. Regulation 4(1) makes requirements within the coordinated field apply to the provision of an information society service by a service provider established in the United Kingdom irrespective of whether that service is provided in the United Kingdom or in another member State. (Regulation 2(1) defines the coordinated field as requirements relating to the taking up and pursuit of the activity of an information society service and defines an information society service with reference to the definition in Article 2(a) of the Directive.) Enforcement authorities are required under regulation 4(2) to secure compliance with those requirements. Conversely, regulation 4(3) provides that requirements within the coordinated field are not to be applied to information society services provided by a service provider established in another member State for reasons which fall within the coordinated field where their application would restrict the freedom to provide information society services. By virtue of regulation 4(4), these provisions do not apply to those fields set out in the Schedule. Regulation 5 allows an enforcement authority or, where no enforcement authority is a party to the proceedings, a court to take measures exceptionally in respect of a given information society service in derogation from regulation 4(3), where these are necessary for reasons of public policy, public health, public security, and the protection of consumers and proportionate to those objectives. Regulation 6 imposes a duty on a person providing an information society service to make available to the recipient of that service certain information. Regulation 7 imposes a duty on a service provider to ensure that any commercial communications constituting or forming part of an information society service which he provides complies with certain requirements. Regulation 8 imposes a duty on a service provider to ensure that any unsolicited commercial communication sent by him is clearly and unambiguously identifiable as such as soon as it is received. Regulation 9 imposes a duty on a service provider to provide certain information where contracts are concluded by electronic means unless parties who are not consumers have agreed otherwise. Regulation 10 provides that regulations 6 to 9(1) have effect in addition to any other information requirements in Community law. These include those contained in the Consumer Protection (Distance Selling) Regulations 2000 (S.I.2000/2334). Regulation 11 imposes requirements on the service provider in relation to the placing of an order unless parties who are not consumers have agreed otherwise. Regulations 13 to 15 set out the consequences of a failure to comply with regulations 6 to 9 and 11. Regulation 16 amends the Stop Now Orders (E.C. Directive) Regulations 2001 so that an application can be made under those Regulations for a court order to stop an infringement of the Directive which harms the collective interests of consumers. For this purpose, regulations 6, 7, 8, 9, and 11 of these Regulations are added to the list of the UK legislation implementing the Directives to which the 2001 Regulations apply. Regulations 17 to 19 create a defence for intermediary service providers from any liability incurred from the activities of mere conduits, caching and hosting in the circumstances set out in those regulations. Regulation 20 provides that regulations 17 to 19 do not preclude the agreement of different contractual terms or affect the rights of any party to apply to a court for relief or the power of any administrative authority to prevent or stop the infringement of any rights. Regulation 21 makes provision in relation to the burden of proof in criminal proceedings arising out of the circumstances in regulations 17 to 19. Regulation 22 makes provision in relation to matters which a court should have regard to when determining whether a service provider has actual knowledge for the purposes of regulations 18(b)(v) and 19(a)(i). A transposition note setting out how the main elements of the Directive are transposed into law and a regulatory impact assessment have been placed in the libraries of both Houses of Parliament. Copies are also available from the International Communications Unit, Department of Trade and Industry, Bay 206, 151 Buckingham Palace Road, London SW1W 9SS.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.60.

Basis
the provision says the conduct is “punishable”
Confidence
0.60 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source