The Electronic Commerce Directive (Miscellaneous Provisions) Regulations 2018

Interpretation

2.—(1) In these Regulations—

“children’s hearings publishing restrictions offence” means an offence under section 182(2) of the Children’s Hearings (Scotland) Act 2011(1) (publishing restrictions);

“the Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8th June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)(2);

“extended children’s hearings publishing restrictions offence” means an offence under article 12(2) of the Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013(3) (publishing restrictions);

“extended fatal accident inquiries publishing restrictions offence” means an offence under article 4(1) of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (Consequential Provisions and Modifications) Order 2016(4) (publishing restrictions in relation to children);

“extreme pornography offence” means an offence under section 51A(1) of the Civic Government (Scotland) Act 1982(5) (extreme pornography);

“fatal accident inquiries publishing restrictions offence” means an offence under section 22(5) of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016(6) (publishing restrictions in relation to children);

“human trafficking offence” means an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004(7) (trafficking people for exploitation);

“human trafficking (Northern Ireland) offence” means an offence under section 2(1) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015(8) (human trafficking);

“human trafficking (Scotland) offence” means an offence under section 1(1) of the Human Trafficking and Exploitation (Scotland) Act 2015(9) (human trafficking);

“information society services” has the meaning given in article 2(a) of the Directive(10);

“intimate images offence” means an offence under section 2(1) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016(11) (disclosing, or threatening to disclose, an intimate photograph or film);

“recipient of the service” means any person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible;

“service provider” means a person providing an information society service;

“threatening communications offence” means an offence under section 6(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012(12) (threatening communications);

“traffic in prostitution offence” means an offence under section 22(1) of the Criminal Justice (Scotland) Act 2003(13) (traffic in prostitution etc.).

(2) For the purposes of these Regulations—

(a) a service provider is established in a particular part of the United Kingdom or in a particular EEA state other than the United Kingdom, if the service provider effectively pursues an economic activity using a fixed establishment in that part of the United Kingdom or that EEA state, for an indefinite period and is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union(14);

(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, or itself, constitute the establishment of a service provider;

(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment where the service provider has the centre of his activities relating to the service,

and references to a person being established in any place must be construed accordingly.

(1)

2011 asp 1.

(2)

O.J. No. L 178, 17.7.2000, p.1. The Directive has been incorporated into the EEA Agreement by Decision 91/2000 of the EEA Joint Committee (O.J. No. L 7, 11.1.2001, p.13).

(3)

S.I. 2013/1465.

(4)

S.I. 2016/1142.

(5)

1982 c. 45. Section 51A was inserted by section 42(2) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13).

(6)

2016 asp 2.

(7)

2004 c. 19.

(8)

2015 c. 2.

(9)

2015 asp 12.

(10)

Article 2(a) of the Directive refers to article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22nd June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations. Directive 98/34/EC was repealed by Article 10 of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9th September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification). Article 10 of Directive (EU) 2015/1535 provides that references to the repealed Directive are to be construed as references to Directive (EU) 2015/1535 and are to be read in accordance with the correlation table in Annex IV to Directive (EU) 2015/1535.

(11)

2016 asp 22.

(12)

2012 asp 1.

(13)

2003 asp 7.

(14)

Cm 7310.