Update on E-Commerce and Information Policy Issues
March 1, 2002
Chris Kuner (Morrison & Foerster) presented the final Model Contract, submitted to the Commission by the ICC and other organizations including the Japan Business Council in Europe, the EU Committee of AmCham, Fedma, the International Communications Round Table, and CBI, at the Art. 31 Committee meeting on February 6, 2002. Although the Commission continues to have concerns with some of our provisions, in general, the Commission had a positive reaction to the second version of our Contract. ICC representatives believe that if we focus on the main innovations in our proposed Model Contract which would really add value to our clauses, and come up with imaginative solutions to the concerns the Commission has expressed about the rest, that the Commission could approve the alternative model clauses.
On October 9, 2001, USCIB President Thomas Niles sent comments to the Commission and Parliament on the draft European Directive on processing personal data and the protection of privacy in the electronic communications sector, to which Commissioner Liikanen responded. The European Parliament is now conducting a second reading of the draft Directive following a Telecom Council of Ministers Common position. Although there are outstanding concerns regarding the Directive’s adoption of opt-in requirements for directories and unsolicited commercial email, a draft USCIB letter will focus on the “cookie issue” in our response to Commissioner Liikanen’s letter given the low probability that we will be able to change their position on the other areas. ICC also intends to send a letter from their Secretary General or eBITT Chair to the Parliament and Council addressing the full range of business concerns.
Choice of Law and Jurisdiction
Country delegation heads will discuss the three options for the future of the Draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters at an April meeting. In preparation for this meeting, the Permanent Bureau prepared a reflection paper on the present state of the negotiations, concluding that it would be best to proceed with a Convention that is limited to areas where consensus could be achieved, specifically, business to business transactions.
The European Commission has confirmed that it has shelved plans for a Rome II measure on the law applicable to non-contractual obligations. Although Rome II had been listed in the Justice and Home Affairs (JAI) objectives at the start of the Spanish EU Presidency, it has since been removed. However, DG JAI intends to public a Green Paper on ‘Rome I’, which deals with choice of law in contractual cases, in July of this year. The Green Paper will contain questions and a number of options for the possible revision of the 1980 Rome Convention on the law applicable to contractual obligations.
The Council of Europe has been drafting a protocol to its Cybercrime Convention on Hate Speech. The acts criminalized in the protocol were taken out of the main convention due to the United States’ inability to adhere to them. Although the United States Government has already expressed that it will not sign the protocol, which runs counter to the U.S. Constitution First Amendment, it will have severe implications for U.S. business. As such, USCIB is working with the ICC to develop comments on the protocol to submit to the Council of Europe.
The European Union is evaluating the need for European codes of conduct for B2B e-marketplaces. While the Commission recognizes the benefits that e-marketplaces offer business, and in particular SMEs, they are concerned that participation in e-marketplaces may raise important concerns in the area of trust and confidence, especially with respect to the trustworthiness of the trading parties, transparency, confidentiality and security. DG enterprise is evaluating whether they should engage in a 'multi-stakeholder' project to develop Codes of Conduct for B2B online marketplaces. Given the broad implications of this EU Commission proposal, ICC is considering providing a comment outlining the existing business initiatives in this area, including ICC's own initiatives, and perhaps urging the EU Commission not to expend energies in this regard.
USCIB staff contacts: David Fares and Heather Shaw