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Cardarelli, Francesco --- "E-commerce from a Regulatory Perspective" [2009] ELECD 321; in Cafaggi, Fabrizio; Muir Watt, Horatia (eds), "The Regulatory Function of European Private Law" (Edward Elgar Publishing, 2009)

Book Title: The Regulatory Function of European Private Law

Editor(s): Cafaggi, Fabrizio; Muir Watt, Horatia

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847201997

Section: Chapter 11

Section Title: E-commerce from a Regulatory Perspective

Author(s): Cardarelli, Francesco

Number of pages: 8

Extract:

11. E-commerce from a regulatory
perspective
Francesco Cardarelli

1. THE REGULATORY FUNCTION OF TORT LAW
Tortious liability appears to be only one of the many, possible, instruments of
regulation and should be examined not within a general theory framework ­
which does not exist in EU law ­ but in its relationship with the specific regu-
latory framework.
This means, on the one hand, that the existing tort provisions in EU law
cannot be compared among themselves, and on the other hand their
coherency must be considered having in mind what the objectives of the EU
law are. Although this approach may not be very appealing for a traditional
legal scholar ­ especially if brought up in a European continental environ-
ment ­ it opens the way to a law and economics analysis in order to assess its
efficiency.
This criterion could also be usefully applied to e-commerce regulation,
comparing the tort provisions with the aims of Directive 2000/31 and verify-
ing the economic effects of its enforcement both on e-commerce providers and
on the parties that claim to have received damage.


2. COMPETING MODELS FOR LIABILITY IN
ELECTRONIC COMMUNICATIONS
Having this in mind, the provisions in Articles 12, 13, 14 and 15 of the
Directive should be examined considering that its aim is, essentially, that of
promoting the development of information society services, and therefore of
the European undertakings that offer such services. Comparative lawyers have
unanimously pointed out that this is a typical example of competition between
legal ...