eCommerce Directive - what online service providers in the UK should do to get ready for Brexit

Actions organisations in the UK that provide online services should take to prepare for a no-deal Brexit.

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Rules relating to online activities in the European Economic Area (EEA) may newly apply to UK online service providers in a no-deal Brexit.

This is because the eCommerce Directive currently allows EEA online service providers to operate in any EEA country, while only following relevant rules in the country in which they are established. In a no-deal Brexit, this will no longer apply to the UK as it will have left the EEA.

You should consider whether your services are in scope, and if so, ensure that you are compliant with relevant requirements in each EEA country you operate in.

In many instances, you may already comply with these requirements, and this could mean that (depending on the nature of your online services) there are little or no immediate substantive changes you need to make to still be compliant if the UK leaves the EU without a Brexit deal.

You may also wish to seek legal advice.

Check whether you are in scope

The eCommerce Directive applies to ‘information society services’. These are defined as:

  • any service normally provided for payment, including indirect payment such as advertising revenue
  • ‘at a distance’ (where customers can use the service without the provider being present)
  • by electronic means
  • at the individual request of a recipient of the service

This covers the vast majority of online service providers, for example online retailers, video sharing sites, search tools, social media platforms and internet service providers.

Check where your service is based

The Directive refers to this as your ‘place of establishment’, and is the fixed establishment where you pursue your economic activity for an indefinite period of time. It is not simply where the technologies are that are needed to provide your service. See paragraph (19) of the recitals to the Directive for further guidance.

In a no-deal Brexit, if you are established in the UK, you should check for any legal requirements in any EEA countries in which you operate. The rules that you may need to start following are those that fall within the Directive’s ‘coordinated field’. This covers legal requirements in individual EEA states which apply to information society services, for example, rules relating to:

  • online information
  • online advertising
  • online shopping
  • online contracting

UK online service providers may also become subject to ‘prior authorisation’ schemes, such as licensing requirements, in EEA countries where they operate.

The Directive does not cover:

  • tax
  • questions about agreements or practices governed by cartel law
  • certain gambling activities
  • personal data covered by the GDPR and e-Privacy Directive
  • legal requirements relating to goods such as safety standards, labelling obligations or liability for goods
  • requirements relating to delivering or transporting goods.

Further steps

We also recommend that you:

  • build on your existing processes for ensuring compliance with the legal requirements relating to online activities in each individual EEA country in which you operate
  • ensure that you have processes in place for ongoing compliance in the event that individual EEA states change their requirements governing online activities
  • consider legal or other professional advice

Further information

The UK will continue to align with all other rules in the eCommerce Directive, immediately following a no-deal Brexit. This includes provisions on liability of intermediary service providers and general monitoring.

Published 16 October 2019