Are there really no barriers to electronic commerce? Electronic evidence will decide.
Shouldn’t the Internet enable the free purchase of goods and services anywhere in the world no matter where you are located and what time it is? Well…the Internet might not be fully “open” to everyone after all. Have you ever noticed when purchasing an article online that you have been automatically redirected to another site before being able to carry out the payment or that you are unable to acquire a product online from where you are currently located? The clearest example most of us will probably recall is an annoying error message saying “this video is not available in your country” when attempting to view media content.
Recently, EU Competition Commissioner Margrethe Vestager announced that she intends to carry out an inquiry into the e-commerce sector, focusing on contractual restrictions and geo-blocking in the online sales of goods and digital content. The inquiry is due to start on 6th of May 2015 and will most certainly affect major corporations including Apple, Amazon, Youtube and Paypal amongst others major e-tailers.
What form will this investigation into the e-commerce sector take? The European Commission will make use of its investigative powers and send out numerous information requests to the e-tailers and other stakeholders concerned. Pursuant to Regulation n°1/2003 the European Commission is entitled to request any corporate documents, both in paper and electronic format that are related to the investigation. In practice, companies affected by this investigation will have to rapidly identify within their corporate repositories the requested documents in order to comply with the frequently tight deadlines set by the European Commission. Most importantly, if companies fail to supply the requested information before the deadline or supply incorrect or misleading information, they will risk fines of up to 1% of their total turnover in the preceding business year which could well cause financial distress for many companies.
How can companies who sell goods and services online best prepare for this? It is crucial for companies to be fully prepared for these potential information requests with the necessary technical means to identify and analyze information currently under scrutiny within tight time frames. To this effect, document review platforms that include keyword searching and other advanced analytics such as predictive coding (for further information please refer to these articles: The Final Act: Predictive coding take centre stage and Predictive Coding and Benedict Cumberbatch) can be a very useful tool and ally for companies in these situations since potentially relevant information will be identified more rapidly and high fines will be avoided.
In summary, e-tailers should be sufficiently prepared from a technical standpoint with professional edisclosure and review tools to locate and analyse data within their repositories since most of the evidence will be electronically stored information (ESI). This will allow them to respond to potential information requests within the prescribed time-limits and avoid heavy fines.