eCommerce and the Post-Brexit State of Play

Following the UK’s exit from the EU, in this article we take another look at the state of play of some of the key UK and EU legislation governing how online platforms deal with consumers and their business users. Generally speaking, for now, the end of the transition period on 31 December 2020 has had little impact on the UK rules, despite the fact that key legislation in this area is EU-derived.

• Unfair Commercial Practices Directive (UCPD): the Consumer Protection from Unfair Trading Regulations 2008 (CPUT) was established in the UK to implement the EU UCPD. The Directive prohibits traders from engaging in commercial practices towards consumers which are misleading, aggressive or contrary to the requirements of professional diligence. Following the UK’s departure from the EU, CPUT remains in force as amended to remove references to the EU.
• Omnibus Directive: on 7 January 2020 the European Commission’s Enforcement and Modernisation Directive (informally referred to as the Omnibus Directive) came into force, and is to be implemented in Member States by 28 November 2021. The Omnibus Directive aims to strengthen consumer rights through increased transparency measures and enhanced enforcement measures and amends four existing EU consumer protection Directives: the UCPD, the Consumer Rights Directive, the Price Indications Directive and the Unfair Contract Terms Directive. There has still been no indication that the UK will choose to mirror these changes in its domestic legislation, namely the CPUT, Consumer Rights Act and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. However, UK traders should be mindful that EU consumer legislation will continue to apply to all traders targeting EU based consumers, regardless of the trader’s location. Therefore, UK traders with pan-European operations will need to ensure their EU-facing business complies with the Directive.
• GeoBlocking: the Geo-Blocking Regulation was revoked in the UK with effect from 1 January 2021. As such, a UK trader will no longer be prohibited from discriminating between its UK and EU customers in the ways prohibited by the Regulations i.e. discriminating against customers who are nationals or residents of an EU member state as against its UK customers. However, the Regulations will continue to apply to UK traders suppling into the EEA ie. as between its Italian and German customers.
• eCommerce Directive: the E-Commerce Directive is implemented in the UK by the Electronic Commerce Regulations 2002. As part of its no-deal planning, the UK made certain minor technical amendments, as well as changes to the "country of origin" principle, with effect from the end of the transition period. The UK government has not announced plans to further amend the Regulations.
   

What’s next?

The continuing trend of eCommerce and online shopping has certainly been accelerated following the outbreak of Covid 19 and shows no signs of slowing down. The welcome continuity of much of the legislation in this space post-Brexit has allowed retailers to focus on strengthening their online offering and distribution channels during this challenging time. However, digital platforms remain high on the regulator’s agenda both in the UK and the EU.

In February 2021, the UK CMA updated its Digital Markets Strategy, first published in July 2019. Then on 15 December 2020, the EU Commission published its proposed DSA Package (discussed in further detail in the next article). We will continue to assess how this increased regulatory oversight for eCommerce and online platforms develops.

If you would like more information on commercial and eCommerce please contact Rachel Bell or your usual Charles Russell Speechlys contact.