Jurisdiction(s):
United Kingdom

UK intermediary liability post‑Brexit: E‑Commerce Regulations reg 3(2), Article 15’s general monitoring prohibition, and Online Safety Act systemic duties and Ofcom enforcement

Published on: 14 December 2023

Published by a LexisNexis TMT expert

Legal News

Article summary

This News Analysis was first published on 16 June 2023. It has subsequently been updated to take account of the Online Safety Act 2023 and the Retained EU Law (Revocation and Reform) Act 2023.

What is the practical effect of reg 3(2) of the E-Commerce Regulations 2002

The E-Commerce Regulations 2002, SI 2002/2013, set out significant curbs on civil and criminal exposure for providers of online intermediary services (online intermediaries) concerning discrete items of content shared or otherwise conveyed via their systems. Commonly called ‘safe harbours’, these rules restrict the responsibility of online intermediaries, including where they are acting as ‘mere conduits’ (SI 2002/2013, reg 17), performing ‘caching’ (SI 2002/2013, reg 18), or ‘hosting’ material (SI 2002/2013, reg 19). In summary, under the E-Commerce Regulations 2002, online intermediaries are not accountable for unlawful content on their platforms unless they possess specific knowledge of it. Once alerted to illegal material, they must move swiftly to take it down without delay. See Practice Note: The liability exemptions/defences under the E-Commerce Directive as they apply in the UK. The E-Commerce Regulations 2002, SI 2002/2013, reg 3(2) states that the regulations ‘shall not apply in relation to any Act passed on or after...

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