Office of Public Sector Information

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations give effect to 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) (“the Directive”) in relation to matters within the scope of sections 1 to 4 of the Terrorism Act 2006 (“the Terrorism Act”).

The Directive (which has been incorporated into the EEA agreement) seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services (“ISS”) between EEA states. Article 3 provides for the regulation of ISS on a “country of origin” basis and Articles 12 to 14 require EEA states to limit, in specified circumstances, the liability of intermediary ISS providers when they provide mere conduit, caching or hosting services.

Regulations 3 and 4 ensure that sections 1 to 4 of the Terrorism Act apply on a country of origin basis. Section 1 of the Terrorism Act creates an offence of publishing a statement that is likely to be understood as encouraging terrorism and section 2 creates an offence relating to the dissemination of terrorist publications. Sections 3 and 4 make specific provision for the application of sections 1 and 2 to internet activity. In particular, section 3 provides for the issue by a constable of a notice requiring the removal or amendment of a statement, article or record that, in the opinion of the constable issuing the notice, is unlawfully terrorism-related.

Regulation 3 extends the application of the offences in sections 1 and 2 of the Terrorism Act so that these offences apply to UK established ISS providers where they provide ISS in EEA states other than the UK. This means that sections 3 and 4 of the Terrorism Act also apply in such a case. Regulation 3 does not apply where section 17 of the Terrorism Act (commission of offences abroad) already applies.

Regulation 4 means that service providers who are established in an EEA state other than the UK can only be prosecuted for an offence under section 1 or 2 of the Terrorism Act, or given a notice under section 3, where the conditions laid down in Article 3(4) of the Directive are satisfied.

Regulations 5 to 7 create exceptions from liability for the offences under sections 1 and 2 of the Terrorism Act for intermediary ISS providers when they provide mere conduit, caching or hosting services in the circumstances specified by Articles 12 to 14 of the Directive.

A Transposition Note has been prepared for these Regulations and a Regulatory Impact Assessment was prepared for the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) (which generally implemented the Directive in relation to legislation already passed or made when those Regulations were made). A copy of each of these documents has been placed in the libraries of both Houses of Parliament and are available from the International Communications Unit, Department of Trade and Industry, Bay 202, 151 Buckingham Palace Road, London SW1W 9SS.