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New E-Commerce Regulations come into force

On Wednesday, 26th of February 2003 the Minster for Enterprise Trade & Employment announced that she had signed the European Communities (Directive 2000/31/EC) Regulations 2003 (S.I. No. 68/2003)("the Regulations") to give effect to the remaining provisions of the E-Commerce Directive 2000/31/EC. These Regulations came into force on the 24th of February 2003.

The Regulations provide for the free movement of Information Society services (essentially services delivered electronically at a distance but not necessarily for payment) between one Member State of the European Economic Area (EEA) and another.

Generally speaking persons established in Ireland and providing such Information Society services must comply with the laws in force in Ireland covering such services and generally do not have to obtain prior authorisation to provide such services in any other Member State of the EEA. This is referred to as the "single market principle" or the "country of origin rule".

For more information on the details of the Regulations please access the more detailed article on our website at http://www.kilroys.ie/library/it/regulations_transposing_ecommerce_directive.htm.

For further information contact:
Patrick Ryan
Email : pryan@kilroys.ie

© Kilroys Solicitors 2003
Retail Fund of Hedge Funds now available in Ireland

A significant development in the European hedge fund industry occurred in December 2002 when the Central Bank of Ireland released rules which permitted the authorisation of retail fund of hedge funds.

This new retail fund of hedge funds product has a minimum subscription requirement of €12,500 (which may be disapplied for capital protected funds). Retail fund of hedge funds are permitted to invest up to 100% of their assets in unregulated funds subject to diversification requirements which are set out in the rules.

There are certain qualitative requirements imposed on the underlying funds which must be independently audited in accordance with generally accepted accounting principles and the assets must be held by a party/parties independently of the manager of the fund.

The Central Bank will require disclosure in the prospectus of the fund in relation to the risk profile of the underlying funds, and more specifically with regard to risks associated with investment strategy, leverage, liquidity, valuations and the effect of cumulative performance fees on returns to shareholders. It is of significance that the duty is one of disclosure and not of restriction.

The Central Bank will require that the manager of a retail fund of hedge funds is able to demonstrate appropriate expertise and experience in managing alternative investment products. In addition, the manager must have appropriate controls and systems in place to monitor the underlying funds.

The availability of this new retail product in Ireland's highly regulated environment is likely to enhance the attractiveness of Ireland as a domicile of choice for the expanding international hedge fund industry.

A more detailed Article on retail fund of hedge funds in Ireland is available in the Library section of our website at http://www.kilroys.ie/library/financial/retail_hedge_fund_ireland.htm.

For further information contact:-
Jennifer Fox
E-mail: jfox@kilroys.ie

© Kilroys Solicitors 2003
New EU Directive on the "end of life" disposal of Electrical Goods and Electronic Equipment.
On the 27th of January 2003 the EU adopted a new Directive on the end of life disposal of electrical goods and electronic equipment (Directive 2002/96/EC). The Directive must be transposed into national law by the 13th of August 2004. However, Ireland along with Greece will be entitled to seek a two-year derogation.

This Directive will have major implications for all those businesses engaged in the manufacture, supply and sale of a wide variety of electric goods and electronic equipment.

The following products fall within the scope of the Directive:
  • Large household appliances (such as refrigerators, washing machines, cookers, dishwashers etc.);
  • Small household appliances (such as vacuum cleaners, irons, coffee machines, clocks etc.);
  • IT and telecommunications equipment (such as PC's, notebook computers, printers, calculators, telephones etc.);
  • Consumer equipment (such as TV's, cameras, radio sets, hi-fi equipment etc.);
  • Lighting equipment;
  • Electrical and electronic tools;
  • Toys, leisure and sporting equipment;
  • Medical devices;
  • Monitoring and control instruments, and
  • Automatic dispensers.
By 13th August 2005 Member States will have to ensure that systems are in place to allow consumers to return electrical and electronic goods and equipment at the end of their useful life to the original vendor.

Member States will also be obliged to set up appropriate treatment and recycling facilities and there are specific target dates and thresholds set out in the Directive.

Any business engaged in the manufacture, distribution or sale of the relevant categories of electrical goods or electronic equipment covered by this Directive need to begin planning for it's implementation and adapting their business model appropriately.

For further information contact:
Patrick Ryan
Email: pryan@kilroys.ie

© Kilroys Solicitors 2003
Does your business have an Internet access
and E-mail acceptable usage policy?
Employers can be held legally accountable for the acts and wrongdoing of their employees and this legal exposure extends to improper use of e-mail or the Internet.
Most businesses have clear policies governing areas such as - health and safety at work - proper use of company property (e.g. company cars and mobile phones).

However if there are no guidelines or rules for the company's employees to follow regarding Internet access or e-mail usage, each individual will set their own rules - sometimes with unforeseen but very serious consequences for the employer.

Some of the important issues for businesses to consider are as follows:
  • Un-foreseen contractual commitments;
  • Defamation;
  • Bullying and harassment in the workplace;
  • Accessing pornographic material;
  • Hacking, spreading viruses and malicious code;
  • Protection of confidential information or trade secrets;
  • Data Privacy.
How can businesses address these issues effectively?

1. Implement a suitable Internet and e-mail usage policy
 Work out the core business objectives that are served by Internet access and e-mail use. Document the key rules that must be followed by all employees when accessing the Internet or using the company's e-mail system and provide all employees with information on the company's policy. Ideally make it part of their contract of employment.

2. Set the requirements for appropriate business communications
 E-mail is an informal, unsecured and ephemeral medium. The circumstances and the extent to which e-mail is used as a business communication tool needs to be carefully considered and limited where appropriate.

3. Legal liability issues for your business
 Every business needs to be conscious of the extent to which and in what circumstances their employees can fix them with legal liability. Improper or unintentional use of e-mail or the Internet can create legal difficulties in the area of contract, defamation, misrepresentation, bullying and harassment, cybercrime and data protection.

4. Supervision & monitoring of employee e-mail and Internet use
 As a general rule any monitoring of employee e-mail or Internet usage must be reasonable and proportionate. Ensure that any decision to monitor such usage is clearly communicated to the employees in advance of the monitoring commencing.

5. Summary
 Having read this article we would like to suggest some issues for consideration.
1. Review your existing e-mail & Internet policy.
2. If you do not have one then prepare and implement one that is suitable for your business.
3. Review your employee training to see if there are any deficiencies in this area.
4. If you propose to monitor your employees use of e-mail or the Internet ensure that they are clearly informed before such monitoring begins.
5. If you implement such a policy - apply it proportionately.

For further information contact:
Anthony Layng
Email: alayng@kilroys.ie

© Kilroys Solicitors 2003
Privacy Concerns - Key findings of the recent Survey commissioned by the Data Protection Commissioner

The Office of the Data Protection Commissioner recently published the results of a survey commissioned by the Data Protection Commissioner, Mr. Joe Meade into the attitudes of Irish people to Data Privacy.

The results of this comprehensive survey make very interesting reading and among its key findings are the following:
  • The very high priority that Irish people attach to the issue of data privacy. 81% of respondents ranking personal privacy as "very important". Only crime prevention ranked higher at 84%.
  • Financial records are valued very highly - more highly than medical records. Of the adults surveyed 77% rated their financial history as "very important".
  • Irish people tend to distrust Government agencies. Only just over 50% of those surveyed stated that they trusted Government organisations to treat their personal information fairly.
  • Distrust of the Internet is growing with 56% of respondents being of the opinion that by using the Internet they risked compromising their personal information.
  • Most respondents recorded their dislike of unsolicited or intrusive direct marketing.
The Data Protection Commissioner, Mr. Joe Meade, in response to this Survey has stated that public unease about how new technologies impact on people's privacy "needs to be firmly laid to rest" and that for his part in 2003 he will be redoubling his enforcement efforts to ensure that people's legal rights in the area of Data Protection are fully upheld.

Among some of the initiatives that Mr. Meade has signalled for the year ahead is the launching of privacy audits as well as the exercise of a range of new powers open to him under amending legislation that should shortly become law. The Data Protection (Amendment) Bill 2002 is expected to come into force within the next few months.

Further detailed information on the results of this survey can be found on the Data Protection Commissioners web-site www.dataprivacy.ie

For more information on Data Privacy please visit our website www.kilroys.ie or contact:

Patrick Ryan
E-mail: pryan@kilroys.ie

© Kilroys Solicitors 2003
New Rules governing Contracts for Consumer Goods and associated Guarantees have come into force

On the 22nd January 2003 the Minister for Enterprise Trade and Employment signed the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003 (S.I No. 11/2003). These Regulations transpose into Irish law the provision of EU Directive 1999/44/EC.

1. Goods supplied must conform with the contract
Suppliers of goods must ensure that the goods that they supply to a consumer conform to the contract that has been made in the following respects;
  • The description of the goods specifically any sample or model;
  • Are fit for the purpose for which the consumer requires them or for the specific purpose that the consumer has discussed and agreed with the supplier in advance;
  • Are fit for the purposes that such goods are normally used for;
  • Conform in quality and performance with advertised or labelled characteristics of the goods - unless the seller can show that any error was corrected prior to contract or that the consumer's decision to purchase could not have been influenced by the error.
2. Seller's liability and Consumer's remedy

The seller will be liable if the goods do not conform to the contract;
  • On delivery, or
  • Within 6 months of delivery, or
  • When installed by the seller, or
  • When installed by the consumer if the incorrect installation results from a deficiency in the installation instructions.
Consumers have the following remedies available to them;
  • Repair or replacement as reasonable and appropriate free of charge, or
  • Appropriate price reduction, or
  • Cancellation of the contract with full refund.
3. Guarantees

Any guarantee associated with the sale of consumer goods will be legally binding on the Guarantor. The conditions laid down in the guarantee and any associated advertising will have to be honoured. Guarantees must contain the following;
  • A statement that the consumer's statutory rights are not affected,
  • Name and address of the Guarantor,
  • A statement in plain language of the extent of the guarantee,
  • How to claim,
  • Duration and territorial extent of the guarantee.
In addition the consumer must be provided with a durable legible copy of the guarantee upon request.

4. Conclusion

These Regulations are designed to facilitate the provision of a common set of minimum rules throughout the EU that consumers can rely upon when making consumer purchases in any Member State of the EU. Existing Irish law is complimented by these Regulations, namely the Sale of Goods and Supply of Services Acts 1893 to 1980 and the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995.

For further information please contact:
Thomas Simpson
E-mail: tsimpson@kilroys.ie

© Kilroys Solicitors 2003
Forthcoming Seminars
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