2. Un breve recorrido a través de lo drag en el espectáculo y el arte (de acción)
2.3. Replanteamientos identitarios sexo-genéricos en el arte (de acción) en y desde las
2.3.3. De lo drag King a otras fluctuaciones de género
The Electronic Commerce Directive 2000/31/EC established a general authorisation scheme for providers of information society services. It also supports such providers by limiting the providers’ liability for actions of their customers.
According to article 4 member states shall ensure that the taking up and pursuit of the activity of an information society service provider may not be made subject to prior authorisation or any other requirement having equivalent effect.
Articles 12 to 14 exempt certain activities of internet service providers (‘mere conduit’, caching and hosting) from criminal and civil liability under certain conditions.
According to article 15 member states shall neither impose on providers a general obligation to monitor the information they transmit or store nor a general obligation to actively seek facts or circumstances indicating illegal activity.All monitored countries except Iceland and Turkey transposed these requirements into their national legislation.
Iceland adopted an Act on electronic commerce and other electronic services in 2002.
Although the law is based on the directive, it is not a precise transposition. For example, the law does not explicitly state that providers of information society services are not obliged to monitor their subscribers or to seek for illegal activities. The law does not oblige providers to monitor, but it also does not protect providers from being obliged by other laws or court decisions.
In Turkey, a draft law was sent to parliament in 2010, but has not been adopted so far. The new law would however not align the provisions on liability of ISPs. Whereas the Electronic Commerce Directive limits the liability of access providers (‘mere conduit’), the Turkish Law
no. 565149 obliges them to block access to websites if a court or the NRA has decided that the website constitutes a criminal offence (see chapter Q on fundamental rights above).
The table below shows the alignment of national legislation with the mentioned provisions of the Electronic Commerce Directive:
HR IS MK ME RS TR AL BA XK
No prior authorisation for information
society services ✔ ✔ ✔ ✔ ✔ ✘ ✔ ✔ ✔
Limited liability for ‘mere conduit’,
caching and hosting ✔ ✔ ✔ ✔ ✔ ✘ ✔ ✔ ✔
No obligation to actively monitor or
seek for illegal activities ✔ ✘ ✔ ✔ ✔ ✔ ✔ ✔ ✔
✔ transposed, ✘ not transposed
Table T.1 – Market access and liability of information society services
2. Market access and supervision of certification services
According to Article 3 of the Electronic Signatures Directive 1999/93/EC, member states
shall not make the provision of certification services subject to prior authorisation;
may introduce voluntary accreditation schemes aiming on enhanced levels of certification service provision; and
shall ensure the establishment of a supervision scheme for certification service providers issuing qualified certificates.The requirement not to make the provision of certification services subject to prior authorisation has been transposed in Croatia, Iceland, Montenegro, Albania and Kosovo. In Kosovo the directive was transposed by the Law on the information society services of 2002, which has been replaced by a law with the same name that came into force in April 2012.
In the other countries, there are potential problems which might hinder market access:
In Macedonia certification service providers must register their activity with the Ministry of Finance 30 days prior beginning of their operation. According to the registration process as it is currently defined in secondary legislation, providers must wait for finalisation of the registration procedure before being allowed to issue certificates.
Serbia requires prior authorisation of providers of qualified electronic signatures.However, after adoption of new secondary legislation on the registration procedure, four providers issuing qualified certificates have entered the market.
Although Turkey does not require prior authorisation, providers of qualified certificates must notify their services two months in advance, which is unusually long. In case of an incomplete notification the authority may suspend the activity of the provider for the duration of a month.
In Bosnia & Herzegovina the law does not require prior authorisation, but market access might be hindered by the fact that the law requires providers to notify their services to a supervision body which has not been established.Croatia is the only monitored country with its own voluntary accreditation scheme; which has been established under the Croatian Accreditation Agency following a July 2008 amendment to the Electronic signature act. Establishing a voluntary accreditation scheme is, however, not required by the Electronic Signatures Directive and only about half of the EU member states have done so.
49
Supervision schemes have been established in Croatia (Ministry of Economy and State Inspectors’ Office), Iceland (Consumer Agency), Macedonia (Ministry of Finance), Montenegro (Inspection Directorate), Serbia (Ministry of Foreign and Internal Trade and Telecommunications), Turkey (Information and Communication Technologies Authority) and Albania (National Authority for Electronic Certification). In Bosnia & Herzegovina and in Kosovo no supervisory body has yet been established. However, the new law in Kosovo gives the Ministry of Economic Development the task to set up a supervisory body by secondary legislation.
3. Electronic signature market data
The available market data shows a picture similar to many other European countries: the legal framework for electronic contracts and electronic signatures exists, but there is little demand for certificates, except in Iceland. In Iceland about a third of the population is using qualified certificates. In all other countries less than 1% of the population use certificates.
In Croatia, the state-owned Financial Agency (Fina) is the only issuer of qualified certificates. As of end 2011 there have been 37,700 valid qualified certificates. Croatia did not report newer data.
In Iceland, one certification-service provider issues qualified certificates. About 200,000 certificates have been issued, and about half of this number is active (September 2012, no newer data available).
In Macedonia, two certification-service providers issue qualified certificates, but no data on the number of certificates is available.
In Montenegro, the Post of Montenegro is the only provider issuing qualified certificates.3,001 certificates have been issued so far (August 2013).
Serbia has four providers, which have issued about 22,600 qualified certificates.
In Turkey, there are five certification-service providers that issue qualified certificates.The number of qualified certificates is growing fast (904,000 in May 2013, about three times as much as at the beginning of 2011), but it is still only about 1% of the population.
Albania now has two certification service-providers issuing qualified certificates, one of them AKSHI (providing certificates for the public administration).
Bosnia & Herzegovina and Kosovo do not have a provider issuing qualified certificates.Table T.2 below provides an overview of electronic signature regulations.
HR IS MK ME RS TR AL BA XK
Legal recognition requirements on electronic contracts and electronic signatures transposed
✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Prior authorisation not required before
market access ✔ ✔ * ✔ * * ✔ * ✔
Supervision system established ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✘ ✘
Voluntary accreditation scheme
established ✔ – – – – – – – –
Number of certification-service
providers issuing qualified certificates 1 1 2 1 4 5 2 – –
✔= transposed/established, ✘ = not established although required by the Directive – = not established, * = potential problems for market access
Table T.2 – Electronic signature regulation and market data