INFORMATION SOCIETY SERVICES: INFORMATION SOCIETY SERVICES: WHAT ARE THEY AND HOW RELEVANT IS THE DEFINITION?

174 Computer Law & Security Report Vol. 17 no. 3 2001ISSN 0267 3649/01/$20.00 © 2001 Elsevier Science Ltd. All rights reserved

Information Society Services

The term ‘Information Society’ and the closely linked concept of ‘Information Society services’ appear regular-ly in the European Commission’s announcements, literature and, in the text of Directives in the EuropeanUnion’s legislation.The Commission has a dedicated office, the Information Society Project Office, establishedto coordinate the various Directorates General with a website devoted to the Information Society.1 Most recent-ly of course the term ‘Information Society services’ has appeared in the Electronic Commerce Directive2 and,prior to that, it was used in the Conditional Access Directive.3 But in both the Electronic Commerce andConditional Access Directives, Information Society services are defined by reference to Article 1 of the earlierTransparency Directive4 which states that Information Society services are “any service normally provided forremuneration, at a distance, by electronic means and at the individual request of the recipient for services”.This article considers the scope and legal background to that definition.

INFORMATION SOCIETY SERVICESINFORMATION SOCIETY SERVICES: WHAT ARE THEYAND HOW RELEVANT IS THE DEFINITION?Justin Harrington

While the aim of the definition is intended to include mostcommercial websites, this article argues that such a definitionis at once unduly restrictive and technologically redundantand that its adoption has two consequences.In the first place, the Commission’s reliance on the phraseleads to inconsistency and uncertainty as to the treatment of anumber of Web and other services with the result that a num-ber of new services are excluded from the definition. Inrespect of the Electronic Commerce Directive, the effect of aparticular service falling outside the definition of anInformation Society service means that a number of its provi-sions would not apply to those services. The ElectronicCommerce Directive states that:• Providers of Information Society services should, if

they comply with the laws of the home state, be free(with a few limited exceptions) to provide servicesthroughout the Union (Article 3).As the Directive states,“legal uncertainty exists with regard to the extent towhich Member States may control services originatingfrom another Member State” and there are further “divergences” in national laws.5 If a particular service isnot an Information Society service then uncertainty asto which law applies to those services will continue.

• The provision of Information Society services is not to besubject to prior licensing or authorization requirements(Article 4).

• Information Society services are obliged to comply withcertain informational requirements (Article 5).

• The exemptions from liability for ‘intermediaries’ con-tained in Articles 12 to 15 only apply to InformationSociety service providers.

The impact of a service not constituting an Information Societyservice is that Member States will not be obliged to apply theprovisions of the Electronic Commerce Directive to that service.

In the second place, any difficulties relating to the def-inition of Information Society services go to the root of

the Commission’s proposals regarding regulation of thewhole convergence phenomenon. This is because theCommission believes that it will be easy to distinguishbetween regulation of Information Society services andthe underlying communications infrastructure. In thisrespect, the Commission, in its 1999 CommunicationsReview,6 proposes separate regulation of infrastructure(and associated services) and services provided over theinfrastructure (which will include Information Society ser-vices). Yet the definition of Information Society servicesdoes not facilitate such a dichotomy. Where did the termInformation Society and Information Society services orig-inate and what do they mean?

While the White Paper on Growth, Competitiveness and Employment of 1993 first emphasized the importance ofthe information society for the future of Europe,7 the first realdiscussion of what was meant by the Information Societyappears in the Bangemann Report of 1994,8 which envisageda kind Europeanized version of the Gore/Clinton ‘InformationSuperhighway’. For Bangemann, the Information Societyrefers to the impact on society of digital technology and thenew emerging communications infrastructure:

Communications systems combined with advanced informa-tion technology are key to the Information Society.The con-straints of time and distance have been removed by networkswhich carry the information, basic services (e.g. E-mail andinteractive video), which allow people to use the networksand applications, (e.g. distance learning, teleworking) whichoffer dedicated solutions for user groups.”9

The thrust of the paper is the need for Europe to get a moveon, to deregulate and meet the American challenge. TheInformation Society will have huge benefits for European con-sumers, businesses and society, but other countries are awareof the benefits and the risk lies in Europe being left behind or,as the Commission’s Convergence Green Paper10 puts it,“leftin the slow lane of the information revolution”.

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In March 1995 Bangemann et al., in a memorandum sub-sequently adopted by the Commission, went on to define thescope of regulatory policy in this area. Information Societyservices they explained are “the various services that will becarried on the information superhighways”.A full range of interactive services will be made available toconsumers including:

for example, electronic newspapers, distance learning, dis-tance legal and healthcare services,distance tourism services,electronic commerce involving goods and services, distancebetting services, interactive games, leisure services, etc.

In these initial papers,11 Information Society services thenappear to relate to the content and services carried over thecommunications infrastructure. In its initial communicationregarding the Transparency Directive,12 the Commissionnoted that the features all Information Society services havein common “is that they are provided electronically, at a dis-tance and are intended to meet one or more specific requestsby an individual service receiver”.

In contrast to the definition appearing in the final ver-sion of the Transparency Directive, there was no mentionof the need for remuneration in the original communica-tion preceding the draft Transparency Directive. On theother hand, in the same communication, we can see anearly reference to both the disposal of distance as a factorand the concept of interactivity. The latter in particular iscore to the current definition of Information Society ser-vices, that is, that any services should be at the individualrequest of the recipient. The Commission went on toemphasize that interactivity is one of the key distinguish-ing factors which makes Information Society services dif-ferent “from television broadcasting services in that theconsumer can interactively gain access to them, manipu-late them and choose and control their content in orderthat they may meet their own distinct requirements”.13

The doing away with distance as a factor is also stressed by the Commission, since it leads to a closer integration of European society and works to the benefit of theInternal Market.

It is now proposed to consider in further detail the ele-ments making up the current definition of InformationSociety services.

‘Electronic means’This part of the definition is not disputed. In the context ofthe Web and digital television essentially we are talking aboutelectronic processes. More serious difficulties arise with theother elements of the definition.

‘At a Distance’At first sight this appears one of the less contentious part ofthe definition. But even this gives rise to concern. TheTransparency Directive14 states that services provided in thephysical presence of the provider and recipient are notInformation Society services because they are not carried outat a distance.

One of the examples given15 is that of an electronic cat-alogue in a shop with the customer on site. It may bequeried whether the Commission is making a valid distinc-tion here. How is a shop which provides such a service dif-ferent from Information Society services, except that a

bricks and mortar shop may have members of staff present(but possibly not available). In both cases orders are placedonline and the customer’s only interaction may be with acomputer terminal.

Another example given in the Transparency Directive16

relates to a plane ticket reservations system at a travelagency in the physical presence of the customer. If we followthe logic of the Transparency Directive, there will be noInformation Society service in respect of the provision ofinformation to the customer of the travel agency, eventhough the sales assistant may use a screen to present infor-mation to such a customer. On the other hand presumablythere may be provision of an Information Society service bya third party data provider to the travel agency which isobtaining these services from that third party. It seemswrong and artificial that the same service is an InformationSociety service for one person, but not another.

Inconsistencies such as these could perhaps be explainedif the Transparency Directive had as one of its aims the pro-tection of consumers.This is, for example, one of the statedpurposes of the Electronic Commerce Directive.17 However,the Transparency Directive has no such purpose; it is essen-tially a measure designed to facilitate the development of theInternal Market.18

Finally, the reference to ‘at a distance’ may give rise to dif-ficulties of interpretation. If I attempt to buy a holiday at X’sshop, but decide while I am waiting in the queue to bookonline at X’s website via my WAP phone, is this a contractconcluded at a distance? It may be argued that it is, because Ihave contracted with X’s website (which may be loaded on aserver in the Solomon Islands as far as I know).That said, itappears to be open to argument that the legal identity of Xand the party I contracted with by using my phone are thesame. Since I am in a queue at X’s premises, it may be arguedthat I am physically with X at the time the contract is made.

In summary, the requirement for communications to be ata distance creates unnecessary uncertainties; more problemsarise with regard to other parts of the definition ofInformation Society services.

‘Normally for remuneration’For the origins and rationale for including this term, we haveto look to the EC Treaty and relevant case law of the ECJ.Certainly, as the Communication on Transparency19 stresses,the concept of services is well defined in the case law of the ECJ.

The first draft of the Transparency Directive did notinclude a reference to remuneration in Article 120 althoughthe Recitals did, by reference to Article 60 (now Article 50 ofthe EC Treaty).21 The latter provides that: “Services shall beconsidered to be ‘services’ where they are normally providedfor remuneration.”22

Recital (2) of the Transparency Directive makes clear thatArticles 59 and 60 of the Treaty are meant to apply to the pro-vision of Information Society services.23 Recital 19 is evenmore explicit; it states that under Article 60, as interpreted bythe case law of the European Court, ‘services’ means thosenormally provided for remuneration. By the time of theCommon Position of January 1998, the words “normally forremuneration” had also appeared in Article 2(a). No explana-tion appears, though it is to be inferred that the change was


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intended to bring it in line with the definition of serviceswritten into Article 60.

A commercial website is typically paid for in one of twoways:• by advertizing appearing on the site• by users paying for goods onlineIn each case this more or less enables the costs of operatingthe website to be covered.The question arises as to whetherthe requirement for remuneration will limit the websites towhich the definition will apply. For example, would a sitewhich does not require transactions to be implemented, butwhich contains advertising, be a service for these purposes?

The European Court has considered a similar questionfrom the point of view of the provision of television ser-vices (see Figure 1 below for a summary of the discussionwhich follows). In PPrrooccuurreeuurr dduu RRooii vv MMaarrcc DDeebbaauuvvee,24

Advocate General Warner considered the effects of Article60:“The purpose of the definition of ‘services’ in that Articleis to identify the kinds of services to which the Treatyapplies, in particular, to exclude those that are normally provided gratuitously.”

In the context of Information Society services, as an initialcomment, it may be suggested that such a statement isunhelpful. In a fast moving environment where developmentsoccur on a frequent and regular basis, arguably there are nonorms.

Advocate General Warner went on to note that televisionbroadcasting is financed in different ways. Some broadcastingorganizations are financed wholly by licence fees paid byviewers; others rely on advertising revenue. In his view:

The method of financing particular broadcasting organiza-tions or particular broadcasts cannot be relevant25… thedecisive fact is that television broadcasting is normally paidfor, i.e. remunerated, in one way or another.The conclusionmust therefore be that it is a service of a kind to which theTreaty applies, no matter from whom, in any particular case,payment may come or may not come.

No mention of this aspect was made in the final judgment ofthat case in the European Court, but in the subsequent caseof BBoonndd vvaann AAddvveerrtteeeerrddeerrss aanndd ootthheerrss vv NNeetthheerrllaannddss26 theEuropean Court appeared to endorse this view: “Article 60does not require the services to be paid for by those forwhom it is performed.”Though not followed in its entirety, the court here also

appeared to give weight to the recommendations of AdvocateGeneral Mancini who noted that the requirement that services“are normally provided for remuneration” meant that this wasnot a categorical requirement. In this respect he noted thesilence of the court in DDeebbaauuvvee where no mention was madeas to whether the service gave rise to payment.In that case thecourt still held on the facts that there was a service to whichArticle 60 applied. Mancini noted that, in the present case, allthe participants, the broadcaster,advertiser,owner of the satel-lite, cable operator and ultimate viewer have an ‘economicaspect’.

I simply wish to point out that… the supply of services doesnot cease to be economic in nature when, as in this case, notransfer of money takes place between the broadcaster andthe viewer. Indeed, in my opinion, the supply of the servicemay still be economic in nature even where there is no remu-neration at all (as in the case of charitable programmes inwhich well-known sportsmen or actors take part).

In contrast to Advocate General Warner in DDeebbaauuvvee whorequired that the service is normally paid for in one way oranother, Mancini could therefore conceive of a broadermeaning which would require only that a website has an‘economic nature’.27

The Electronic Commerce Directive appears to followAdvocate General Mancini in this regard:

Information Society services span a wide range of economicactivities which take place online… Information Society ser-vices are not solely restricted to services giving rise to onlinecontracting but also, in so far as they represent an economicactivity, extend to services which are not remunerated bythose who receive them.28

Bearing in mind the context of the Directive, it is easy to seewhy a reference to remuneration has been inserted. Thewording used, particularly bearing in mind that theTransparency Directive is intended to incorporate Articles59 and 60 by reference, is designed to ensure that all com-mercial content or content/services with an economicaspect, fall within the scope of the definition of InformationSociety services. Equally, the intention appears to be toexclude services provided gratuitously, for example academ-ic sites consisting exclusively of hyperlinks to related dataor articles.

However, it is submitted that this could have been achie-ved in a far more user-friendly fashion. In some jurisdictions,

Meaning of ‘remuneration’ Is remuneration essential?

Advocate General Services must normally be Requires remuneration of Warner paid for in one way or another some form as a pre-requisite.

No discussion of ‘normally’.

Advocate GeneralMancini Requires only a service which ‘Normally’ for remuneration.

has an ‘economic’ aspect Remuneration is not essential

Electronic Commerce Direction Requires ‘an economic activity’ No further clarification, but inserts ‘normally’.

FFiigguurree 11:: CCoonnttrraassttiinngg vviieewwss aass ttoo rreennuummeerraattiioonn ffoorr sseerrvviicceess..


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there is a real danger of literal translation of the text ofthe Directive into local law. In the UK, for example, lawyerswould then have to construe whether, in the example givenaboveofanacademiclinkpage,the‘normallyforremuneration’requirement would mean that the following logic shouldapply.

• PPrreemmiissee IIMost link pages are commercial sites containing advertisingand are therefore ‘normally… for remuneration’.• PPrreemmiissee IIIIThis is an academic site, is not remunerated and does nothave an economic aspect.• PPrreemmiissee IIIIIIBut, the service is of a type which normally would be remu-nerated.• CCoonncclluussiioonnIn the case of this academic website, the criteria for a serviceto be ‘normally… for remuneration’ are met.The danger in this sense is one of over-inclusion rather thanexclusion, a theme that contrasts with problems noted laterin this paper. Also, in construing the term ‘normally… forremuneration’, a further question relates to whether ‘nor-mally’ should be construed exclusively in the light of theWeb or also in the context of the real world where differentpractices may apply.

However, the reference to remuneration and the conceptsbehind it create further problems.• Recital 19 of the Transparency Directive states that the char-acteristics of remuneration are absent from:

“... activities that the State carries out without economic con-sideration in the context of its duties in particular in thesocial,cultural,educational and judicial fields;whereas nation-al provisions concerning such activities are not covered bythe definition given in Article 60 of the Treaty and thereforedo not fall within the scope of this Directive”.

• Again, this could result in considerable inconsistency.Withthe Government moving ahead with plans for ‘joined up’elec-tronic government available to most UK citizens by 2005,cer-tain Government functions will not be subject to therequirements and exemptions applicable to providers ofInformation Society services29.• Further difficulties may arise when there is more than oneservice involved. In Bond van Adverteerders the EuropeanCourt disagreed with Advocate General Mancini in holdingthat the retransmission services provided amounted not toone service but to two, each of which was provided forremuneration and each of which was a transfrontier service.If a particular Web service can be construed as consisting ofa number of services, this adds another layer of complexityand difficulty.• Articles 59 and 60 only apply in relation to a transfrontierservice, that is a service provided across a European nation-al frontier. However, it is unclear whether the current defin-ition of Information Society services incorporates Articles59 and 60 (in the sense that a service will only be anInformation Society service if it is provided across fron-tiers).At the time of drafting, the Commission may have con-sidered this as an irrelevancy; surely the very fact that aservice is made available on the Internet means that it isavailable worldwide and, by its nature, all services must betransfrontier services. In this sense the Commission

assumed that all Information Society services would beinternational services.However, these days well informed lawyers and clients areonly too aware that they are unable to comply with alllaws anywhere in the world. Even in Europe, there is awide diversity in respect of consumer protection law andunfair competition law.30 As a result, site owners attemptto restrict those who can make use of the services thatthey offer.An example of the type of technology availablecan be seen in PPeeooppllee vv WWoorrlldd IInntteerraaccttiivvee GGaammbblliinnggCCoorrppoorraattiioonn,31 which involved an attempt to work aroundNew York State’s prohibition of gambling.WIGC was basedin Antigua and required users who wished to participate in online gambling to wire money to an offshore bankaccount. On opening an account users would be askedtheir address; if this was in New York they would be deniedaccess.32 In addition to this technological approach, at amore basic level, sites simply state that they are not intend-ed to lead to transactions with users outside a specifiedcountry.

In the context of the Web and the definition of Infor-mation Society services, the question therefore ariseswhether, if a site is only intended for users of one countryand attempts are made to exclude users from another, thatthe site is not a transfrontier service and the definition ofInformation Society services would not apply.This will alsobe an issue where Information Society services are providedover a closed network, for example where a provider in onecountry ‘pipes in’ services to individual businesses in thatsame jurisdiction.Additionally, it may also be relevant in thecase of Application Services Providers33 who are based inthe same jurisdiction as the customer.

In establishing as a fact whether a service is intendedonly for one country, courts may be influenced by a bodyof case law in a number of jurisdictions to the effect that,where a service is only intended for one set of consumers,there is no infringement where those services are, as aconsequence of the services being furnished by theInternet, made available in other jurisdictions. Support forthis can be seen in the decision of Jacob J. in 880000-FFlloowweerrss’’AApppplliiccaattiioonn.34 In that case, obiter, he clarified that sale ofsolely US services on a website that was accessible in theUK was not trademark usage in the UK and not thereforetrademark infringement. In a subsequent case,35 heendorsed this approach, though it is clear that the specificfacts of the case will always be relevant.36 In the US, theapproach developed by the courts of looking for ‘minimalcontacts’ prior to exercising jurisdiction adopts a similarlypragmatic approach.37 The result may be that a court willbe prepared to hold that services which would otherwisebe Information Society services do not fall within that definition because they are aimed at a particular target audience in a specific jurisdiction. These complexities and difficulties of interpretation could have been avoidedby clear wording to the effect that the EU legislativeregime was intended to apply to all government and commercial services and content provided over the newtechnology, regardless of whether they were transfrontierin nature and regardless of the number of services theyconsisted of.


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At the individual request of the recipientAlthough interactivity is a defining feature of InformationSociety services, that term’s meaning, and indeed the needfor it at all, remain open to question. Dealing with the firstpoint, even a request for a document held on a server in thebasement of my firm’s offices will be at individual request,38

though presumably the Commission intends that thisrequirement be seen in the context of the other constituentsof the definition.

Moving to the second question, the problem here isthat, by making this a necessary condition for InformationSociety services, a whole range of Web services will fall out-side the scope of regulation39 including the new ‘push’technologies.40 Most push technology requires users tosubscribe to a particular ‘channel’, that is an area of interestthat a publisher builds.This can include HTML pages, Javaapplets, Active X components, multimedia objects andother information packaged together to deliver customizedinformation.The sites to which a user subscribes then sendinformation automatically.

But some sites send you information regardless ofwhether you want it or subscribe for it. So called ‘adult sites’have been at the forefront of using this technology.Anotherexample of a service which is not on individual request is‘spam’41 (that is, unsolicited) E-mails. Even where a userreceives a daily update as a result of registering a preference,can it really be said that this is at a user’s individual requestin all cases?42

On the other hand, when a service is interactive andsatisfies the other requirements of the definition ofInformation Society services, it seems wrong to excludethem. This is demonstrated by the case of interactive television services. Recital 18 of the Electronic CommerceDirective states that video on demand is an InformationSociety service because it is transmitted point-to-point at individual request. On the other hand, Article 1 of the Transparency Directive provides that television broad-casting services within the Television Without FrontiersDirective43 do not fall within the definition of InformationSociety services. The difficulty here is that televisionbroadcasting services increasingly involve a degree ofinteractivity.44

Take the example of pay per view for an importantnational event (e.g. a coronation or international footballmatch). It is provided via cable in digital form, decoded bymy set top box all of which is conditional upon my payinga fee, which in itself both provides remuneration and, itmay be argued, the necessary level of interactivity (it isreceived by me at my individual request which is manifest-ed in my paying for the service). Despite meeting the defi-nition of an Information Society service, this is likely toconstitute a service to which broadcasting regulationapplies pursuant to the Television Without FrontiersDirective since it looks and feels like a television pro-gramme (e.g. because it has advertising breaks and is trans-mitted live). The question arises whether, in a convergingworld, it will always be possible to distinguish whatamounts to a television programme?45 Difficulties areincreased here because of the lack of a precise definitionwithin the Television Without Frontiers Directive as towhat constitutes a television programme.

It is in this whole area of convergence that the definitionof Information Society services is most problematic andwhich I propose to consider in the next section.

Convergence and the definition ofInformation Society services

One of the more difficult exclusions to justify in theTransparency Directive46 relates to voice telephony. In aconverging world where so called ‘IP telephony’ is gradual-ly becoming more commonplace,47 there is a risk of noregulation as opposed to over regulation.48

IP telephony currently works by a user49 interactinginitially with a website in the same way as any other com-mercial Web service. Once he has downloaded the pro-gram, IP telephony software typically informs him of otherusers who are simultaneously online and, by carrying out aseries of interactive commands with the telephonyprovider’s site, he can commence talking to those individ-uals. It is difficult to distinguish this type of service fromInformation Society services. Presumably the website thata user interacts with will be an Information Society ser-vice, but the IP telephony service provided by that websitewill not.This is inconsistent with the declared intention ofthe 1999 Communications Review that there be a trans-parent and simple structure of regulation of convergingtechnologies.

The exclusion of IP telephony is also inconsistent with the treatment of ISPs. Recital 18 of the ElectronicCommerce Directive50 states that ISPs provide an Infor-mation Society service.While this is clear in the case of anISP’s website, other technical services carried out by theISP may not of themselves be Information Society services.The provision to the effect that ISPs should be treated asInformation Society services can be criticized on a numberof grounds.• The Commission’s lumping together of ISPs’ serviceswithin Information Society services contradicts the resultsof the responses to the Commission’s Convergence GreenPaper and the 1999 Communications Review, which urgethe separate regulation of the telecommunications infra-structure from Information Society services. The 1999Communications Review in particular envisages a distinc-tion between regulation of services provided over net-works from ‘associated services’ (communications andaccess services) and the ‘communications infrastructure’(that is, the networks), a distinction which reflects theevolving nature of the Commission’s policy in this area.• But similar difficulties arise within the 1999 Comm-unications Review in respect of Electronic ProgrammeGuides (EPGs) and Application Programme Interfaces (APIs).As the Commission’s Communication on Audiovisual Policynoted51, EPGs (and the APIs on which they run, a programanalogous to a computer’s operating system) will becomeessential in the digital age to facilitate navigation over what is expected to amount to hundreds of TV channels,pay per view and video on demand. EPGs and APIs appear to meet the definition of Information Society services but the Commission, in its various discussion papers regardingconvergence, proposes they be regulated as part of infra-structure.52


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•Certain services provided by ISPs do not fit easily within thedefinition of an Information Society service.The requirementfor a service to be supplied upon individual request implies aconscious decision to make use of a service. But a ‘mere con-duit’ (such as a router) may not be regarded as functioning atthe individual request of a recipient of the services who isunaware of the existence of the router. Similarly, in the case ofcaching, that service will not usually be at individual requestand cannot therefore constitute an Information Society service.•This last interpretation is partially supported by theTransparency Directive which states53 that that Directive(and presumably the definition of Information Society ser-vices contained in it) shall not apply in relation to rules relat-ing to telecommunications services as defined in the ONPDirective.54 The latter, in Article 2(3) states that these are “ser-vices the provision of which consists wholly or partly in thetransmission and routing of signals on a telecommunicationsnetwork with the exception of radio and television broad-casting”.This suggests that routing and access services in par-ticular would be outside the definition of Information Societyservices in the Transparency Directive, a conclusion that con-tradicts the Electronic Commerce Directive.

CONCLUSIONThe Commission’s 1999 Communications Review refers tofive general principles for regulatory action in the world ofconvergence.Any regulation should:

• be based on clear and defined policy objectives• be the minimum necessary to achieve their objectivewith the overall aim of reducing regulation as much aspossible• enhance legal certainty

• be technologically neutral• be enforced as closely as possible to the activitiesbeing regulated

The Communication on Audiovisual Policy endorses these objectives for audio-visual content. By inference they should similarly apply to Information Society services generally. Unfortunately the current definition of Infor-mation Society services falls short on every one of thesegrounds.

The definition of Information Society services is alreadyout of date.The Community in its own legislation has notedthat: “... enough is not yet known about the form the newservices will take or their nature...”55

To avoid further difficulties, the Commission would beadvised to review current terminology.A sensible way for-ward may be to dispense with definitions altogether andrely on ordinary and plain language to get its messageacross.56 Examples of common usage can be found in theCommunity’s own Directives. Recital 21 of the ElectronicCommerce Directive for example states,“The coordinatedfield covers only requirements relating to online activi-ties.”57 The concept of services and content made available‘online’ is relatively clear and needs no further explana-tion. If there is a concern that that term will somehowexclude services provided by wireless means, expresswording could be used to include such services.

What is clear is that any terminology used will be fundamental to delimiting the scope of any legislation.It is also clear that any definition needs to be a piece of livinglaw that can be amended easily as technology develops.

JJuussttiinn HHaarrrriinnggttoonn Field Fisher Waterhouse

FOOTNOTES1 <http://www.europa.et.int/comm/information_society/ index_en.htm>.2 Directive 2000/31 EC on certain legal aspects of information soci-ety services, in particular electronic commerce, in the InternalMarket (Directive on electronic commerce) (the ElectronicCommerce Directive).3 Directive 98/84 EC on the legal protection of services based on orconsisting of conditional access (the “Conditional Access Directive”).4 Directive 98/48 EC amending Directive 98/34 EC laying down a pro-cedure for the provision of information in the field of technical stan-dards and regulations (the Transparency Directive).5 Recital 5, Electronic Commerce Directive.6 “Towards a new framework for Electronic CommunicationsInfrastructure and Associated Services: The 1999 CommunicationsReview”COM (1999) 539. (the 1999 Communications Review)7 COM (93) 700.8 Europe and the Global Information Services (1994) available at:<www.ispo.cec.be/infosec/backg/bangemann.html>. See also theCommission’s follow up paper:Europe’s way to the Information Society:An Action Plan COM (94) 347.9 ibid p17.10 COM (97) 623.11 Note the way that the definition develops to encompass otherservices provided such as Internet access. See note 50 below andaccompanying text.12 Com 96(392) “Communication concerning regulatory trans-

parency in the Internal market for Information Society services”(the Communication on Transparency).13 Ibid. For the Commission,what distinguishes Information Societyservices “will be the special role played by the consumer in thechain and, more precisely, the fact that the marketing, sale and/ordistribution of the services will be provided to the consumer at adistance by electronic means and his individual request”.14 See Annex V “Indicative list of services not covered by the secondsub-paragraph of point 2 of Article 1”.15 Ibid.16 Ibid.17 See Recitals 10 and 11 of that Directive.18 See Recitals 1and 12 of the Transparency Directive.19 See also Recital 6 of the Transparency Directive.20 Note 10 and accompanying text.21 Since most case law refers to Article 60 rather than Article 50, forthe purposes of this paper it is proposed also to refer to the pre-Amsterdam numbering.22 The European court has provided a number of examples of whatconstitute services for the purposes of Article 60, a number ofwhich appear self-evident. By way of example, in HHMM CCuussttoommss vvSScchhiinnddlleerr (C 275/92) importation of lottery adverts and tickets washeld to amount to a service.The services were provided for remu-neration, constituted by the price of the lottery ticket.23 “Whereas a wide variety of services within the meaning ofArticles 59 and 60 of the Treaty will benefit by the opportunities


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afforded by the Information Society of being provided at a distance,electronically and at the individual request of a recipient of ser-vices.”24 C52/79.25 Similarly in KKoohhllll vv UUnniioonn ddeess CCaassiisssseess ddee MMaallaaddiiee (C158/96) theECJ held that a dentist provided services even where the patient didnot pay and the relevant government social security office made thepayment to the dentist. In SSttaattee vv SSaaaattcchhii (C155/73) TV broadcasts andadverts were held to be services even where paid for by public licencefees.26 C352/1985.27 This approach appears to be followed in more recent cases. InAAllppiinnee IInnvveessttmmeennttss vv MMiinniisstteerr vvaann FFiinnaanncciieenn (C384/93) which dealtwith unsolicited telephone calls offering financial services, thecourt noted that “there can be no doubt that the activities of AlpineInvestments fall within the scope of Article 60”. Alpine used coldcalling to market their services, yet the court noted that, “it wascommon ground” that these services were provided for remunera-tion. Cold calling per se does not appear to be remunerated, butwould be ‘economic’ in nature. In this respect, Advocate GeneralMancini’s views appear to have been adopted by the EuropeanCourt.28 Recital 18. Emphasis added.29 This may be partially explicable. No doubt most Governmentwebsites will comply with the informational requirements of theElectronic Commerce Directive, though presumably Governmentwould still wish to be able to benefit from the exclusions of liabili-ty.30 See the Commission’s 1996 Green Paper on CommercialCommunications in the Internal Market.31 EBL November 1999 at 14.32 Unfortunately WIGC’s technology was not able to verify whethera New York resident inserted a false name. As a result, the courtfound the services to be available in New York State and in breachof that state’s anti-gambling laws.33 ASPs are a form of Web-based outsourcing.A company could forexample outsource its human resources IT to a Web-based specialistwho is familiar with the requirements of personnel departments ina particular jurisdiction.34 [2000] ETMR 369. See also NNaattiioonn’’ss BBaannkk MMoonnttggoommeerriiee’’ssAApppplliiccaattiioonn [1999] ETMR245 where a Board of Appeal of OHIMtook the identical view.35 EEuurroommaarrkkeett DDeessiiggnnss IInnccoorrppoorraatteedd vv PPeetteerrss aanndd ootthheerrss, decisionof Jacob J. of 25 July 2000.36 In EEuurroommaarrkkeett, the Defendant was not intentionally making herWebsite available to users outside the Republic of Ireland.This wasdemonstrated by a combination of the i.e. country domain, the useof Irish punts and the clear fact that the site was a shop based inIreland rather than a Web-based concern trying to sell productsinternationally. Jacob gave an example of the opposite extreme.Amazon.com was a US-based service which aimed to sell booksworldwide.37 ZZiippppoo MMaannuuffaaccttuurriinngg vv ZZiippppoo DDoott CCoomm IInncc.952F.Supp 1119 (WDPa 1997).38 It will be at individual request, at a distance and, because it isbeing paid for, it is also for remuneration. It is, however, not a trans-frontier service, if such is a requirement.39 Contrast the approach set out in the current proposal for a direc-tive relating to Copyright in the Information Society.Article 3 statesthat:“Member States shall provide authors with the exclusive rightto authorize or prohibit any communication to the public of origi-nals and copies of their works… including the making available tothe public of their works in such a way that members of the publicmay access them from a place and at a time individually chosen bythem.”40 The World Wide Web is generally based on pull technology,wherethe client browser requests a Web page before it is sent. Broadcastmedia consists of push technologies,because they send informationout regardless of whether anyone has requested it. One of the old-est and most widely used push technologies is E-mail.

41 Though Recital 18 of the Electronic Commerce Directive appearsto consider that they maybe included.“Services which are providedpoint to point, such as… the provision of commercial communica-tions by electronic mail are Information Society services.” TheCommission’s difficulties with Spam are understandable.They wishto exclude from the ambit of the Directives private E-mails, but bydoing so they may also exclude spam E-mails.42 If we assume for argument’s sake that each push E-mail is intend-ed to amount to an Information Society service, each E-mail shouldpresumably be on individual request.The fact that it is not meansthat it cannot be an Information Society service. On the other handit may be argued that the Information Society service is the overallservice obtained from registration. But from that it would followthat each daily E-mail would not be an Information Society serviceand there would be no obligations to comply with the information-al requirements set out in the E-Commerce Directive. As notedabove, there may in any case be problems showing a push service istransfrontier in character (if this is a requirement).43 There are two points to note here. (1) Article 1 of theTransparency Directive consists of a categorical statement to thiseffect. Recital 18 of the Electronic Commercial Directive appears tomodify this position, though the definition in the TransparencyDirective is not formally amended.Recital 18 states radio and televi-sion are not Information Society services because they are not pro-vided at individual request. (2) The Television Without FrontierDirective 1989/552 EC as amended. If the TV Without FrontiersDirective were to apply to Information Society services, it would,for example, impose limits on advertising and foreign content.44 E.g.Sky Sports Extra which provides a choice of different cameraangles for views to view football games.The BBC offers interactivetelevision viewers the option to request player biographies and sta-tistics as part of its coverage of the Open at St Andrews.The CarltonCinema Channel similarly offers the ability to click an icon and pur-chase film tickets. Source: Internet Magazine, September 2000, p.78.45 For example, is the Big Brother Web site a TV programme or anInformation Society service when viewed using TCP/IP protocols onthe Web? Section 46 of the UK’s Broadcasting Act 1990 appears toapply to Web cameras showing moving images, and this is certainlythe view of the ITC.The latter has however stated that it currentlydoes not seek to regulate this area.On the other hand,because a usercan view the site on the Web the service looks and feels like anInformation Society service.46 Annex V.47 That is telephony provided over the Internet using TCP/IP protocolsproducts. IP telephony has been around since 1994.The first commer-cial product was launched in 1995 by Vocaltel, but only since 1997have the larger telcos taken an active interest.Also known as ‘voice overthe Internet’ (VON) the main disadvantage, hitherto, has been poorquality; the main advantage is that all calls cost the equivalent of a localphone call to an ISP. Some telephone companies are now consideringoffering integrated voice and data communication services.48 See the Commission’s Notice of 7 May 1997 on InternetTelephony where it was concluded that VON did not meet the defin-ition of ‘voice telephony’ for the purposes of Article 1 of Directive90/388.The Commission concluded that it would only be subject toregulation once an equivalent level of service was provided com-pared to traditional voice telephony. The Commission thereforeadopted a ‘wait and see’ approach.A similar attitude persists at theFederal Communications Commission in the United States. See IanWalden “The Regulatory Implications of Internet Telephony” [1996]CTLR 227 and Internet Telephony’s Transition from a rival toResellers and Call-backs to the New Communications Status Quo”John Friske,Utilities Law Review 1998.49 Who needs a duplex card, a microphone and speakers and IP tele-phony software? For the latter,see for example ‘Pow Wow’available freefrom Tribal Voice at <www.tribal.com> or ‘Internet Phone’ an evalua-tion copy of which is available at:<www.vocaltec.com>.50 Articles 12 to 15 and Recital 18 of the Electronic CommerceDirective.Recital 18 states:“Information Society services also include


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services consisting of the transmission of information via a commu-nication network or in hosting information provided by a recipientof the service.”51 Communication from the Commission to the Council and theEuropean Parliament.Principles and Guidelines for the Community;Audiovisual Policy in the Digital Age. (Com (1999) 657).52 This is largely due to the Commission’s concern that EPGs and APIscould constitute a barrier to market entry and should therefore be sub-ject to competition law, which will form the basis for the new frame-work governing infrastructure.

53 Article 1.54 Directive 97/51 EC of the European Parliament and of theCouncil of 6 October 1997 amending Council Directive 1990/387and 1992/44 for the purposes of adaption to a competitive environ-ment in telecommunications.55 Recital 11 of the Transparency Directive.56 Many commercial agreements for example simply refer to ‘con-tent’ without further explanation.57 Recital 18 of the Electronic Commerce Directive, it is stated,“… theprovision of services offline is not covered”.

Book Review

Telecommunications LawGGlloobbaall TTeelleeccoommmmuunniiccaattiioonnss LLaaww aanndd PPrraaccttiiccee,, ggeenneerraall eeddiittoorr:: CCoolliinn DD.. LLoonngg,, 22000000,, lloooossee-lleeaaff,, SSwweeeett && MMaaxxwweellll LLttdd,,££119955..0000,, IISSBBNN 00 442211 6655336600 44

This work is intended as guidance and a source of reference on the law and regulation of telecommunications through-out the world. The preface indicates that: "It is not its purpose nor is it realistic to expect that it should cover every con-ceivable rule or decision which may have arisen in the different areas. The objective has been to try to deal with the keyconcepts,principles and rules of concern for operators, service providers, regulators and their advisors." The authors notethat telecommunication law has become established over the past 15 years,which has experienced an absolute revolutionin telecoms developments and regulation. The widespread growth in the provision of telecoms services and of competi-tion in the area,combined with privatization and globalization,has now established the field as worthy of detailed study inits own right. The editor notes that over the next few years the focus will be on achieving an optimum set of rules to caterfor telecoms in a new converged environment "where the traditional boundaries between audiovisual transmissions andtelecommunications are no longer relevant, where there is a multiplicity of different delivery technologies competing forthe same customers and where the economic value of the industry is liable to shift away from basic transport towardsmore sophisticated ways of providing communication facilities and information to consumers".

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Book Review

Document ReliabilityTTrruussttiinngg RReeccoorrddss –– LLeeggaall,, HHiissttoorriiccaall aanndd DDiipplloommaattiicc PPeerrssppeeccttiivveess,, bbyy HHeeaatthheerr MMaaccNNeeiill,, 22000000,, hhaarrdd-ccoovveerr,, KKlluuwweerrAAccaaddeemmiicc PPuubblliisshheerrss,, 116633 pppp..,, NNLLGG114400;; UUSS$$6699;; ££4433,, IISSBBNN 00 77992233 66559999 22

The purpose of this book is to explore the trustworthiness of records as evidence from the perspectives of law and his-tory, and to examine recent efforts to develop methods for ensuring the trustworthiness of electronic records based ondiplomatic concepts and principles. It is organized into four chapters. The first traces the evolution of record trustwor-thiness from historical documents, whilst the remaining chapters analyze the criteria and method established by law, his-tory and contemporary archival diplomatics for determining the trustworthiness of records in general and electronicrecords specifically.

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Documents

INFORMATION SOCIETY SERVICES: INFORMATION SOCIETY SERVICES: WHAT ARE THEY AND HOW RELEVANT IS THE DEFINITION?