In the current boom of technological development, you have certainly already encountered the phrase "information society service", which also appears in several legal acts.[1] Nevertheless, in practice, only few people know what the term means and what specific services or activities fall under it. For this reason, we have decided to provide a more detailed explanation of the origin as well as the content of this term.
The concept of information society service is legally defined, specifically in the Act on Electronic Commerce,[2] which took it in a slightly amended form from the European Directive.[3]
The Slovak legal definition of the term in question is relatively brief, and is as follows:
"Information society service means a service provided at distance during the connection of electronic equipment by an electronic communications network, generally for remuneration at the request of the recipient of the information society service, in particular commercial communication, processing, transmission, storage, searching or collection of data and electronic mail other than personal electronic mail."
If we decompose the above text into individual conceptual features, it is clear that for a particular service or activity considered to be an information society service, it must include the following:
- It is a service provided at distance during the connection of electronic devices by an electronic communication network.
By "distance" means the provision of a service without both parties being present at the same time and place. In this context, there has been much discussion about whether this term is correct, as in some cases the information society service is de facto provided even if people are present at the same time and place, e.g. if the person fills in and submits an online form for taking out insurance, even though he/she is currently staying at the registered office/operation of the insurance company.
The electronic communication network is defined in the Electronic Communications Act.[4] This is a very extensive technical definition, but for simplicity we can say that it is basically any signal transmission between two devices. - It is a service which is normally provided for remuneration.
In this case, we recommend taking into account the recitals of the European Directive on Electronic Commerce,[5] which show that in this case, the economic aspect is taken into account and not the fact whether the service is actually provided for by means of remuneration.
The Slovak Electronic Commerce Act uses the term “payment”, but in practice this term is interpreted much more broadly and includes for example, other non-monetary transactions (e.g. the provision of personal data).[6] In addition, the legal definition also covers services which are not paid for by their recipients and are sufficient if they constitute an economic activity such as services providing online information or commercial communication.[7] - The service is provided at the request of the recipient.
Even in this case, the condition is interpreted extensively and includes not only any explicit expression of will of the recipient, from which it is possible to deduce his/her request for the provision of a service, e.g. filling in the form or entering the address into the internet browser, which enters the request to load the website, as well as passive browsing of the offer.
Despite a more detailed explanation of the individual conceptual features of information society services, it is difficult for the addressees to understand which services and activities are considered to be these services. For this reason, we give the following examples:
- web hosting services,
- online storage,
- online news (press service) portals,
- website commenting functionality,
- the functionality of adding user reviews to websites,
- platforms for inserting advertising,
- online sales of goods and online commercial communication,
- e-mail other than personal e-mail,
- social networks,
- motor insurance services via the internet,
- internet connection services,
- booking services (e.g. hotel via email, travel agency services),
- auction server (e.g. eBay),
- classic websearch (e.g. Google).
On the other hand, the following are NOT considered to be information society services:
- use of electronic mail for personal purposes,
- the contractual relationship between the employee and the employer,
- activities that, by their nature, cannot be performed at distance and electronically, such as a statutory audit of company accounts or medical advice that requires a physical examination of a patient.
[1] Electronic Communications Act or GDPR.
[2] Provision (2)(a) of Electronic Communications Act
[3] Definition of information society services is stated in the Directive 98/34/EC as amended by Directive 98/48/EC;
[4] Electronic communications network means functionally interconnected system of transmission systems and, where appropriate, interconnection or routing equipment, including network elements that are not active, enabling the transmission of signals by line, radio, optical or other electromagnetic means, including satellite networks, fixed networks with circuit interconnection and with the interconnection of packets, the Internet and mobile terrestrial networks, electricity distribution networks to the extent that they are used for signal transmission, radio and television broadcasting networks and cable distribution systems, whatever the type of information transmitted.
[5] Recital 18 of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)
[6] Husovec, M., LIABILITY ON THE INTERNET under Czech and Slovak law, Publisher: CZ.NIC, z. with. p. o., CZ.NIC Edition, www.nic.cz, 1st edition, Prague 2014, p. 98.
[7] Judgment of 352/85 Bond van Adverteerders and Others, EU: C: 1988: 196, paragraph 16.