Issue 2: Questions concerning derogations from Article 3 (Article 3(4) and Annex)
32. Are you aware of cases where a Member State applied the derogation possibility provided for in Article 3(4) of the Directive described above? If so, please describe how, indicating the information society services restricted (e.g. on-line media, on-line pharmacies, advertising or promotion of certain products like alcohol, services provided by regulated professions, broadcasting of cultural events or on-line sport events) and the basis for the derogation (public order, consumer protection, public safety or public health)? All EXCEPT PRIV
It is allowed to sell in on-line pharmacy only medicines, that are not subject to medical prescription(prescription pharmaceuticals are not allowed to sell or advertise online).
It’s also prohibited to advertise tobacco products on-line. Tobacco product advertising is allowed only in special publications intended for merchants who deal with the trade of tobacco products, as well as in the publications issued and printed in the countries other than European Union Member States and are not intended for the European Union market.
33. In the event of an affirmative reply to the previous question, were you restricted in the exercise of your professional activity by the use of such a derogation? All EXCEPT PRIV, INFOSOC LAW PUBSERV
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34. In your view, is the derogation to the internal market clause covering contractual obligations concerning contracts concluded by consumers, set out in the Annex to the Directive, still useful, despite the development over the last ten years of Community and national legislation concerning consumer protection? If yes, could you provide the reasons justifying the maintenance of such an exemption? All EXCEPT PRIV AND RP
No.
35. Have you practised or been subject to discrimination on the basis of nationality or place of establishment/residence, or are you aware of such discriminations? If so, please indicate the information society services affected and the reasons given to justify this discrimination. All EXCEPT PUB SERV
No.
36. In your view, does the purchase and sale of copyright protected works subject to territorial rights and the territorial distribution of goods protected by industrial property rights, encourage or impede cross-border trade in information society services? All
From consumer rights protection point of view (from consumer’s interest point of view) there are no reasons to suppose, that purchase and sale of copyright protected works can impede cross-border trade on-line. Nevertheless because of the high level of copyright infringement risk probably it could have a negative impact on information society services market environment.
37. In your view, are there other rules or practices which hinder the provision or take-up of cross-border on-line services? If so, which? All
The further cross-border information society services development is hinderedby the following factors: not enough effective cross-border dispute settlement procedure as well as not equally adopted at national level consumer rights protection regulation (for example, not equal time period for the right of withdrawal).
Issue 3: Cross-border commercial communications, in particular for the regulated professions.
38. Are you aware of any mechanisms in your Member State which guarantee that unsolicited commercial communications can be identified in a clear and unambiguous manner by the addressee?
In the Law on Information Society Services (Article8) is stated, that commercial communication shall be in conformity with the requirements of the Advertising Law, as well as the following requirements:
1) it is clearly recognisable as a commercial communication;
2) the person on behalf of whom this commercial communication is distributed is clearly definable;
3) the content of the offer and the conditions regarding the receiving of the service are precisely formulated;
4) discounts, bonuses and prizes are clearly recognisable, and the requirements for the receipt thereof are clearly set forth;
5) advertising competitions, lotteries or games are clearly definable and the relevant terms of participation are easily of accessible, as well as clearly outlined; and
6) the service recipient is given the possibility to refuse to receive further commercial communications.
(2) If a person exercising a regulated profession provides a commercial communication in regard to an information society services, this person has a duty to observe professional regulations, especially in regards to independence, respect and professional honour, professional secrets and fairness towards clients and representatives of other professions.
Furthermore, in the Law on Information Society Services (Article 9) is stated, that it is prohibited to send via electronic mail such commercial communications for the receiving of which a person has not given prior consent (namely unsolicited commercial communications), as well as the sending of any other nuisance communications to a person.
39. Do measures exist in your Member State which guarantee that the service provider who sends unsolicited commercial communications by email regularly consults "opt-out" registers (in which natural persons who do not wish to receive this type of communication can register)? If so, are these registers respected?
There are not provided such kind of opt-out registers in Latvia.
Besides, according to the Law on Information Society Services (Article 9) it is prohibited to send unsolicited commercial communications by electronic mail.
40. Is the legislation of your Member State sufficiently clear on the criteria making it possible to determine if a commercial communication can be regarded as unsolicited or not?
Yes. The Law on Information Society Services cleary determines the criteria in order to identify whether commercial communication (message) can be regarded as unsolicited or not.
41. Is the 'acquis communautaire' (European law) on unsolicited commercial communications and national regulations well-adapted to new forms of commercial communications?
The regulation of E-commerce directive (2000/31/EC) regarding to unsolicited commercial communications has been directly adopted at national legislation.Nevertheless due to rapid tehnological progress the new forms of commercial communications are arrised, therefore there is reason to believe, that additonal improvements at E-commerce directive should be made in order to elaborate more up-to-date regulation regarding unsolicited commercial comminications.
42. What information society services provided by the regulated professions are you aware of or do you have access to? All
The requested information is not collected.
43. Are you aware of which types of commercial communication practices are undertaken by the regulated professions (communication on fees,, on specialisms, etc) in one or more Member States or at European level? For which regulated professions? All except PRIV
The requested information is not collected.
44. Are you aware of codes of conduct covering on-line commercial communications for certain regulated professions in one or more Member State(s)? If so, please specify. All
There are no codes of conduct elaborated and applied which cover on-line commercial communications for certain regulated professions.
45. What are, in your opinion, the obstacles to the development of codes of conduct for on-line commercial communications for regulated professions at European level? All
There are not enough developed information society services provided by the regulated professions as well as no awereness of the benefits due to use of the codes of conduct.
46. Are on-line pharmacy services authorised in your Member State for over-thecounter (OTC) medicines 11and/or for prescription-only medicines? If so, under which conditions? Please indicate the relevant legislative provisions. All
According to the national regulation, namely, Cabinet Regulations No.416 „Procedures regarding the Distribution and Quality Control of Medicinal Products” (Adopted 26 June 2007) only medicinal products not subject to medical prescription may be distributed to the public (in the territory of the Republic of Latvia) by means of the Internet (Article 99).
Besides, Articles 100.-103. determine the following:
“100. The retail trade distribution by means of the Internet is allowed only to the pharmacy which has:
100.1. provided the public with a possibility to reach the pharmacy by means of the Internet twenty-four hours a day and to receive free of charge information and consultations therefrom regarding the referred to medicinal products for provision of pharmaceutical care, in conformity with the regulatory enactments regarding the requirements for the opening and operation of pharmacies; and
100.2. in conformity with Paragraph 103 of these Regulations developed the Internet homepage which is available to the public continuously at any time of day or night, and the information inserted therein conforms to the regulatory enactments regarding the advertising of medicinal products.
101. If a pharmacy distributes medicinal products in retail by means of the Internet, the owner of the special authorisation for opening (operation) of a pharmacy shall ensure the necessary power of the server and the capacity of the communication channel connection of the server.
102. A pharmacy which distributes medicinal products in retail by means of the Internet shall, without delay, ensure updating of the information provided on the homepage and shall inform the State Agency of Medicines and the Health Inspectorate regarding the domain name, electronic mail address, as well as regarding amendments thereto.
103. The homepage referred to in Sub-paragraph 100.2 of these Regulations shall have the following structure and content:
103.1. the provision of the functions of the pharmacy and electronic communication possibilities:
103.1.1. the report of services provided by the pharmacy with explanatory particulars regarding the possibility of receipt of the services;
103.1.2. if a submission on a specific printed form is necessary for receipt of a service, the availability of the printed forms shall be ensured, and the option to print them from the homepage (in PDF or other universal formats) or to fill them in directly on the homepage shall be ensured, as well as explanations regarding the correct filling in of the forms. If forms are being filled in several languages, explanations shall be provided also in the relevant languages;
103.1.3. availability of interactive elements (for example, “Your Question”, “Answer of Pharmacy”, “Submissions, Complaints”, “Answers to Submissions, Complaints”);
103.1.4. a possibility to send a letter (a submission) to the pharmacy by electronic means (for example, using XML); and
103.1.5. the electronic mail address shall be indicated and a possibility to send suggestions regarding the homepage;
103.2. information regarding the pharmacy:
103.2.1. the name of the pharmacy, address, working hours, telephone and fax number, the number of the special authorisation (licence), the holder firm name of the special authorisation (licence), address, registration and bank details;
103.2.2. the given name, surname and registration number within the Latvian Pharmacist Society of such pharmacist who provides consultations regarding medicinal products; and
103.2.3. additional graphic elements – a map of the location of the pharmacy with a reference to the closest public transport and a graphic image of the special authorisation (licence) issued to the pharmacy for opening (operation) of the pharmacy;
103.3. the date of the last update of the information placed on the homepage; and
103.4. a link to the opening page, as well as links to pages of a higher level, if the server of the homepage has a structure of several levels.”
47. Are there specific measures in your Member State on products (safety devices, checks of compliance with medicine marketing regulations, etc), and/or on internet sites (specific logo indicating legal pharmacies, public register of legal pharmacies, etc) aiming to guarantee that all medicines bought on-line are safe? If so, what are they? PUB SERV, PRIV, BUS, CONS ASSO, RP
See the answer to the 46th question.
48. What are the advantages and disadvantages of the legal possibility for citizens in general or certain categories of citizens to buy medicines on-line and of having them home-delivered? All except PRIV and ISPs
Benefits: possibility to receive the necessary medicines (medicinal products not subject to medical prescription), without leaving citizen’s home.
Disadvantages: no direct contact with the professionals (although according to the regulations, consumer has the opportunity to receive consultations), limited or wrong product information, less cofidence for products quality, counterfeit goods may cause the healt risk.
49. Are you aware of studies or surveys relating to the volume of legal or illegal purchase of on-line medicines within the European Union and, more specifically, in your Member State? If so, what sources and assessment methods were used? PUB SERV, BUS, CONS ASSO, BUS FEDE, RP
There has not been made any studies or surveys within aforementioned field.
Issue 5: Interpretation of the provisions concerning intermediary liability in the Directive
52. Overall, have you had any difficulties with the interpretation of the provisions on the liability of the intermediary service providers? If so, which? BUS (ISPs), PUB SERV, INFOSOC LAW PUBLIC SERVICE
Mainly the difficulties arise to determine liability of the intermediary service providers when supervision institutions have to deal with prevention of cross border infringements. In practice, dealing with cross border infringements, it’s more effective to collaborate with domestic intermediary service providers than foreign service providers therefore in these cases the liability issue becomes actual. Furthermore, the problems ariseconcerning enforcement of administrative liability ofthe other Member states’ information society service providers.
53. Have you had any difficulties with the interpretation of the term "actual knowledge" in Articles 13(1)(e) and 14(1)(a) with respect to the removal of problematic information? Are you aware of any situations where this criterion has proved counter-productive for providers voluntarily making efforts to detect illegal activities? BUS (ISPs), PUB SERV, INFOSOC LAW PUBLIC SERVICE
Up to now the difficulties with the interpretation of the term “actual knowledge” are not arised.
Curently there are practiced the notification procedure in which the intermediary service provider firstly is informed about the specific infringement and called for action to prevent it.
After receiving the notification from supervision institution, intermediary service provider can not appeal anymore that he was not aware or does not have acual knowledge of certain illegal activity. Therefore in case if intermediary service provider after receiving notification from supervision institution does not acts expeditiously to remove or to disable access to the illegal information, the intermediary service provider can be applied to legal liability.
54. Have you had any difficulties with the interpretation of the term "expeditious" in Articles 13(1)(e) and 14(1)(b) with respect to the removal of problematic information? BUS(ISPs), PUB SERV, INFOSOC LAW PUBLIC SERVICE
No.
55. Are you aware of any notice and take-down procedures, as mentioned in Article 14.1(b) of the Directive, being defined by national law? BUS (ISPs), PUB SERV, PRIV
No.
56. What practical experience do you have regarding the procedures for notice and take-down? Have they worked correctly? If not, why not, in your view? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE
See the answer to the 53th question.
57. Do practices other than notice and take down appear to be more effective? ("notice and stay down"13, "notice and notice"14, etc) BUS (ISPs), INFOSOC LAW PUBLIC SERVICE
No coments.
58. Are you aware of cases where national authorities or legal bodies have imposed general monitoring or filtering obligations? BUS(ISPs), INFOSOC LAW PUBLIC SERVICE
No.
59. From a technical and technological point of view, are you aware of effective specific filtering methods? Do you think that it is possible to establish specific filtering? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE
Possibly IP address filters could be used for filtering those Internet sites (information society service providers), especially foreign ones, where are recognized significal consumer rights infringements, for instance, such as implementing the unfair commercial practices or providing illegal advertising to the Member State’s national legislation.Such a filter could be used as a tool in order to protect consumer collective interests and would help to reduce cross-border infringements of consumer rights in electronic commerce.
60. Do you think that the introduction of technical standards for filtering would make a useful contribution to combating counterfeiting and piracy, or could it, on the contrary make matters worse? BUS(ISPs), INFOSOC LAW PUBLIC SERVICE
Such measures could be effective if they were provided regulary and adequately totechnological environment development.
61. Are you aware of cooperation systems between interested parties for the resolution of disputes on liability? BUS (ISPs), INFOSOC LAW PUB SERVICE
No.
62. What is your experience with the liability regimes for hyperlinks in the Member States? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE
Liability for hyperlinks usualy is analysed in conjuction with the legislative requirements relating to advertising, information to be provided, and online contracting.
63. What is your experience of the liability regimes for search engines in the Member States? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE
No coments.
64. Are you aware of specific problems with the application of the liability regime for Web 2.0 and "cloud computing"? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE
No coments.
65. Are you aware of specific fields in which obstacles to electronic commerce are particularly manifest? Do you think that apart from Articles 12 to 15, which clarify the position of intermediaries, the many different legal regimes governing liability make the application of complex business models uncertain? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE
Greater legal certainty should be created in areas related to digital content, online auctions and online payment instruments.
E-commerce has a cross-border nature therefore different national legislative frameworks creates legal uncertainty and prevent from further e-commerce sustainable development. Regarding complex business models, the territorial legal uncertainty additionally is reinforcedby conditions resulting from the use of technology sophistication.
66. The Court of Justice of the European Union recently delivered an important judgement on the responsibility of intermediary service providers in the Google vs. LVMH case15. Do you think that the concept of a "merely technical, automatic and passive nature" of information transmission by search engines or on-line platforms is sufficiently clear to be interpreted in a homogeneous way? BUS (ISPs), INFOSOC LAW PUBLIC SERVICE