Q&As

To what extent, and in what circumstances, might EU and UK export controls apply to use of software as a service (SaaS). Could use of a SaaS service by an end user in a territory outside the EU infringe such laws?

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Produced in partnership with Craig Armstrong of Shoosmiths
Published on LexisPSL on 22/02/2018

The following TMT Q&A produced in partnership with Craig Armstrong of Shoosmiths provides comprehensive and up to date legal information covering:

  • To what extent, and in what circumstances, might EU and UK export controls apply to use of software as a service (SaaS). Could use of a SaaS service by an end user in a territory outside the EU infringe such laws?
  • User’s approach to minimising risk
  • SaaS provider's approach to minimising risk

The key UK and EU export control legislation consists of:

  1. the Export Control Act 2002 (ECA 2002): pursuant to ECA 2002 the government may pass Orders to control the export of strategic goods, technology transfer, the provision of technical assistance overseas and the trade in military-rated equipment between overseas countries

  2. the Export Control Order 2008, SI 2008/3231: this Order provides for the control of exports from the UK of listed military, paramilitary and certain other goods, technology and software. Such exports will require a licence—see Practice Note Export controls—requirement for an export licence

  3. Council Regulation (EC) 428/2009 (EU Dual Use Regulation): the EU Dual Use Regulation also establishes controls over the exports of listed goods, software and technology considered to be ‘dual use’, ie can be used for both civil and military purposes. Of most relevance to this Q&A, this control applies to software encryption

The scope of these export controls includes giving access to software or technology in electronic form to someone overseas, and therefore these controls a

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