Spain: An Approximation To The Future Spanish Law On Information Society And Electronic Commerce

Last Updated: 31 May 2001
Article by Manuel Rodriguez-Pinero

Last April 30th, 2001, the Spanish Government issued the, for the time being, last version of the Draft Information Society and Electronic Commerce Law (the "Draft" or the "Law").

Said new version has been produced after public consultation with associations, groups, companies and agents interested in the future Law. Over 50 reports have been received by the Spanish Ministry for Science and Technology (in charge of drafting the Law), containing more than 600 observations; some of said observations have been incorporated to the Draft. This give an idea of the high degree of interest that the future new Law has within the Spanish market, and of its importance for the future development of the electronic commerce in Spain. Likewise, the Draft has been subject to reports from by official Spanish bodies as the Telecommunications and Information Society Advisory Council, the Data Protection Agency, the Consumers and Users Council, the Telecommunications Market Commission and the General Commission on Codification.

The procedure is now close to its end, as it is expected that, after receiving the compulsory advise of the Council of State, the Government may send it to the Parliament, for its definitive approval. In any case, some changes may be expected before the final version is definitively published and effective.

Main objective of the future Law is to establish the necessary legal guarantees aiming at promoting the development of electronic commerce and the services offered through Internet, so as to offer a safe legal frame both for the services providers and the users. Electronic commerce is having a slow development in Spain, mainly due to the lack of confidence of consumers. It is said that the Spanish consumer have a traditional concept of commerce, thus direct presence is highly valued. The Spanish Government, being aware of the great importance of incorporating this new commercial vehicle in order to improve the business efficiency, increase the election possibilities for users, and considering its value as potential source for new employment opportunities, is working in the idea of offering a safe frame for electronic commerce, being capable of generating in consumers and companies the necessary confidence for using this new mean.

In any case, the idea behind the Draft is to continue applying to electronic transactions the Spanish general and specific rules (for commerce and consumers’ protection), regulating only those aspects that, due to their newness or to their special features, are not covered by said general and specific pre-existing rules.

On the other hand, the Law shall incorporate into the Spanish legal system the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, on certain aspects of information society services, in particular electronic commerce, in the Internal Market (known as the "Directive on electronic Commerce") and also, partially, the Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998, on injunctions for the protection of consumer’s interest, as the Spanish Law shall include injunctions against conducts infringing the Law.

The Draft is based on a wide concept of the so called "information society services", which comprises, together with the contracting of goods and services through electronic ways, the supply of information (e.g. newspapers published in the Net), the intermediation activities aiming at providing access to the Net, data transmission through telecommunication nets, catching, hosting, searching and linking services, and in general any other services rendered upon demand of the users (as video-on-demand, etc.).

The Draft is based on the free provision of services, thus no authorisation is needed to provide the services that will be covered by the Law. Consequently, the Register for Services Providers that was foreseen in previous drafts has been eliminated. Only basic conditions are established in relation with the information to be furnished to users.

Form a subjective stand point, the Law shall be of application to services providers domiciled in Spain, and also, partially, to those services providers that, although not domiciled in Spain, have a permanent establishment in Spain. In these cases the Law shall apply to those services rendered in Spain. The Law shall also apply to the services providers established in non Member States of the European Union or the European Economic Space, provided that said application does not contravene what is established in the applicable international treaties or conventions.

Those services providers that are registered at a Public Register (this is the case of companies, that may be registered at the relevant Companies’ Register) may provide to said Register the domain names used for offering their services, aiming at guarantying that the users and also the Public Administration may know the connexion between a given domain name and the company behind the electronic transaction. Likewise, some obligations are posed on the services providers aiming at obtaining their co-operation with the Authorities for identifying the authors of illegal activities or contents circulated through the Net or avoiding its circulation.

The Draft, contrary to what was foreseen in previous drafts, regulates non-solicited commercial communications made through electronic mail (spam) by forbidding this practice, except those communications previously solicited by the addressee. In any case, said communications should include, at the beginning of the message, the word "publicity".

The Draft also favours entering into contract trough electronic means, giving effectiveness to the consent given by an electronic way, guarantying the equivalence between written contracts and those entered electronically.

On the other hand, the Draft promotes the elaboration of codes of conduct by the services providers, considering that said codes may be a valid instrument for adapting the Law to the specific characteristics of the different sectors to which the Law will be of application. Consequently, arbitration procedures are also promoted. Also judicial injunctions, addressed against conducts that are contrary to the Law, damaging consumers’ interest, are foreseen in the Draft.

Lastly, the Draft establishes sanctions applicable to the services providers, designed to avoiding non-fulfilments of the contents of the Law by the services providers.

The Draft is made of 49 Articles, divided into seven Sections.

Section I, called "General Dispositions", determines the object of the Law, including electronic commerce among the services of the information society. In this Section, the Draft follows the applicable tax regulations in order to determine that a services provider is domiciled in Spain or has a permanent establishment in Spain. It is important to underline that the Law shall also apply to those services providers established in another Member State of the European Union or of the European Economic Space when the recipient of the service is established in Spain and services affect: intellectual or industrial rights; electronic money issued by those institutions to which Spain applies any of the exceptions foreseen in article 8.1 of the Directive 2000/46/EC of the European Parliament and of the Council, of 18 September 2000, on the taking up, pursuit of and prudential supervision of the business of electronic money institutions; advertisement activities by collective investment institutions in securities; direct insurance activities carried out under the free establishment or free provision of services regimes; obligations arising out from contracts entered by consumers; regime of election by the contracting parties of the law applicable to their contract; legality of the commercial communications made through electronic mail or another equivalent non-solicited electronic communication; formal requirements related to the validity and efficacy of contracts by means of which are created, transferred, modified or extinguished rights in rem over real estate property located in Spain. Those services providers will be also subject to the remaining rules of the Spanish coordinated field (Spanish regulations that are of application to the information society services providers regardless of whether they are of a general nature or specifically designed for them). As an exception, the Spanish Law or the Spanish coordinated field shall not apply when, according to the rules applicable to the above mentioned matters, the law of the domicile of the recipient of the service is not of application.

Thus, the Draft intends to clarify the law applicable to these transactions of goods and services, to which not only the new Law, but also general Spanish rules are to be considered on a case-by-case basis.

In relation with services providers established in non Member States of the European Union or of the European Economic Space, the Law shall apply provided that its contents are not contrary to what is established in the international conventions or treaties that may be of application.

Lastly, Section I provides that the specific rules (and not the Law) shall apply to the activities and services rendered by Public Notaries and Registrars when exercising their official activities; Lawyers and Attorneys-at-Court when exercising their functions of representation and judicial defence; and services related to games of chance implying an economic value, except those promotional competitions and games aiming at fomenting the sale of goods or services, where payments, if any, are only intended to acquiring the promoted goods or services.

Section II, "Rendering of Services of the Information Society", is based on the free provision of services principle, thus rendering these services is not subject to a prior authorisation, without affecting those authorisation regimes not having as specific and exclusive object the services of the information society. As an exception, the Public Authorities may interrupt the rendering of a public service, or the circulation of a given information, when their contents may gravely affect the public policy, the public health, the national defence, the public security, the protection of consumers, including investors, the respect for human dignity and the principle of non discrimination based on race, sex, religion, opinion, nationality or any other personal or social circumstance or the protection of minors. Measures to be adopted by the Authorities are to be objective, proportionate and shall not discriminate services providers. A special procedure is envisaged for restrictions to be applied on services of the information society coming from any of the Members States of the European Union or the European Economic Space, in which case the relevant Member State where the services provider is established shall be requested to adopt the necessary measures; failing said measures, the Commission and the relevant Member State shall be previously notified of the measures to be adopted by the Spanish Authorities. In case of urgency, Spain shall adopt the necessary measures, notifying the Commission and the relevant Member State of the measures and of the reasons behind the urgency within five days from the adoption of said measures.

Section II also refers to the need of registering the domain names at the Public Registers where the services provider is registered and the obligation of allowing consumers and also the Public Authorities free access to their relevant data, as full name, registered domicile or permanent establishment in Spain, registered domain names, authorisation data, provided that the activity carried out by the services provider is subject to a prior authorisation, Fiscal Code Number for V.A.T. purposes, information concerning the professional activity of the services provider (when said activity is a regulated professional activity, as is the case of lawyers in Spain), information on pricing of the services or products offered, including whether prices are inclusive of any applicable taxes or delivery costs, and the codes of conduct to which the services provider is adhered, and how to have access to said codes, as the case may be. In relation with the codes of conduct, the Law refers to the fact that the Government shall promote the application of said codes, with the participation of consumers and users associations. The codes of conduct may include out-of-court dispute settlement and also the procedures for detecting and retiring illegal contents from the Net.

The services provider are also obliged to notify to the relevant Public Authorities any illegal activities carried out by the recipient of the services and, in general, to co-operate with the administrative and judicial Authorities.

Finally, this Section II establishes the regime of responsibility of the services providers, which are subject in general to the Spanish regulations concerning civil, criminal and administrative liabilities. It is important to note that, as a general rule, the services providers may only be held responsible for the contents elaborated by them or on their behalf, and that they are not responsible for third parties contents that, when developing their activities, the services providers transmit, store or link, provided that the services provider meets the rules contained in the Law for said services.

On its side, Section III of the Law refers to "Commercial Communications through Electronic Means", to which not only the Law, but also the general regulations on commercial activities and publicity shall also apply, together with the applicable protection data regulations. Generally speaking, the Spanish systems is based on and "opt-in" system, where commercial communications through electronic mail or any similar mean (which apparently includes also short messages send to mobile phones) are forbidden if not previously solicited by the recipient. In any case, solicited commercial communication should clearly express its condition through including at the beginning of the message the word "publicity". Also, any authorisation given by a recipient may be revoked at any moment through an easy and free procedure to be established by the services providers.

Section IV regulates "Contracting through Electronic Means", foreseeing the regime to be applied to these kind of contracts. According to what is envisaged in the Draft, contacts entered through electronic means shall produce all the effects foreseen by the Spanish legal system, provided that consent and the remaining requisites for their validity are met. In this respect, it is to be underlined that, according to the general Spanish civil rules, a contract exists from the moment one or several persons undertake to give something or provide some service to another, or to not give or to do something. Contracts are formed merely by consent and consent is expressed by the convergence between the offer and the acceptance of the thing and the cause (consideration) that will constitute the contract. Also, as a general rule, the parties are not subject to any specific formalities and are free to agree as they wish, provided that they do not infringe upon the law, public morality or public policy. Consequently, the Spanish Civil and Commercial Codes, together with the remaining civil or commercial rules on contracts, namely the consumer protection regulations and the rules governing the commercial activity apply. Moreover, in order to enter validly into a contract through an electronic mean, the prior agreement of the parties on using said electronic mean is not required.

As an exception, contracts, businesses or any other legal acts related with family Law and inheritances may not be entered electronically.

Thus, the Law gives to contracts entered through electronic means the same validity as contracts entered through a documentary way, for instance. But, when a specific regulation provides that a given contract is to be entered following some special formalities, said formalities are to be met (e.g., contracts having as object creating, transferring, modifying or extinguishing rights in rem over real estate property are to be entered through a notarial public deed; other kind of contract also need this special formality, as per the Spanish Civil Code and other specific regulations).

In relation with the proof of existence of electronic contracts, the Law simply refers to the general Spanish rules and to what is foreseen in this respect by the Spanish Civil and Criminal Procedural Laws and by the Electronic Signature Law.

For determining the law applicable to electronic contracts, and the jurisdiction competent to adjudicate disputes arising from said contracts, the Law refers to the international conventions and treaties to which Spain is a party, and to the internal rules, except when the Law is of application according to its own rules.

When regulating the formation and celebration of electronic contracts, the Law refers to the obligations prior to the start of the contracting procedure and to the information following entering into the contract.

In relation with the obligations prior to the start of the contracting procedure, the information society’ services provider, in addition to fulfilling all the information obligations contained in the Law, already explained, is obliged to inform in a plain, understandable and unequivocal way, before the service addressee start the contracting procedure, about: the different steps to be accomplish to enter into the contract; if the provider will file the electronic document formalising the agreement and if said file will be accessible to the user; the technical means at the user’s disposal for identifying and correcting any mistake suffered when introducing the relevant data; and the language or languages in which the contract may be formalised. But the services provider is not obliged to provide said information when both parties so agree, provided that any of the parties is not a consumer, or when the contract has been entered exclusively through the interchange of electronic mail or any equivalent electronic communication.

The offers or contracting proposals electronically made shall be valid during the term established by the services provider or, failing this, during the term that said offers or contracting proposals are accessible to the service’s addressees. Also the services provider has to put at the addressee’s disposal the general conditions that applies to the contract, as the case may be, so as to enable the user to file and reproduce said general conditions.

Regarding the information following entering into the contract, the offering party is obliged to confirm reception of the acceptance to the accepting party through any of the following means: sending a confirmation of receipt through an electronic mail or any other equivalent electronic communication to the address notified by the accepting party, within twenty-four hours from receiving said acceptance; or by confirming, through a way equivalent to the way used for the contracting procedure, the received acceptance, as soon as the contracting procedure is over, provided that the confirmation may be filed by its addressee. When the obligation of confirmation is posed on the service’s addressee, and the confirmation is to be sent to the service provider or to another service’s addressee, said provider shall facilitate the fulfilment of said obligation, putting at the addressee’s disposal any of the above mentioned means.

The acceptance and its confirmation shall be deemed received when the parties to which said notification are directed may have evidence that notification has been produced. Should the reception of the acceptance be confirmed through an acknowledge of receipt, it will be presumed that the addressee may have said evidence when the confirmation is filed at the server managing the addressee electronic mail account or at the device used for receiving communications.

Confirmation of the reception of the acceptance of an offer is not needed when both parties so agree, provided that any of the parties is not a consumer, or when the contract has been entered exclusively through the interchange of electronic mail or any equivalent electronic communication.

On its side, the Law considers that the consent (to agree) is given in the moment when the offer’s addressee issues its acceptance. Lastly, contracts entered through electronic means, when a consumer is a party, are presumed to be entered at the place where the consumer has his/her habitual residence; contracts entered between businessmen or professionals are presumed to be entered at the place where the services provider is established.

Section V regulates the "Court and out-of-court dispute settlement". This Section envisages the existence of injunctions to be filed against conducts that are contrary to the Law or damage collective interest of consumers. Said action aims at obtaining a decision ordering the defendant to cease said conduct contrary to the Law and to forbid its reiteration, or aiming only at avoiding its reiteration when the infringement has ceased by the time the action is filed.

An injunction may be filed by: the individual or companies holding a legitimate right or interest; the affected associations, corporations or groups; the consumers and users associations; the Public Prosecutor; the National Institute for Consumption and the relevant bodies of the Autonomous Communities and of the City Halls that may be competent in the area of consumers’ protection; and other Member States entities incorporated for defending the collective interest of consumers duly authorised by the European Commission through their inclusion at the list to be published at the European Community Official Journal. In this respect, the Law authorises the National Institute for Consumption and the relevant bodies of the Autonomous Communities and of the City Halls that may be competent in the area of consumers’ protection, and the users and consumers associations members of the Consumers and Users Council to file these actions in other Member State, provided that they are listed at the above mentioned list published by the European Commission at the European Community Official Journal. It will be the National Institute for Consumption, through the Spanish Ministry of Justice, that will address to the European Commission to obtain the inclusion at said list of any interested entity.

The injunction may be filed while the prohibited conduct is in force or within one year term after said conduct has ceased. Any decision granting an injunction may also impose fines from € 600 to € 60,000 per day of delay when executing the court decision, according to the nature and importance of the damage caused and the economic capacity of the defendant.

Provisory measures, aiming at protecting the rights or interests affected may also be ordered by the court, according to the Spanish Civil and Criminal Procedural Laws. A provisory measure may consist of ordering the removal of the presumed illegal contents or impairing access to said contents.

In relation with out-of-court dispute settlement, its is foreseen that the services provider and the recipient of the services may submit their disputes to the arbitration procedures foreseen at the arbitration and consumers and users protection regulations, and also to the procedures that may be established at the codes of conduct that may be approved and joined by services providers. It is expressly foreseen at the Law that the out-of-court dispute settlement may make use of electronic means, in the terms established at the specific regulation. Said specific regulation will have to be approved by the Government once the Law is effective to allow the use of said electronic means.

Section VI establishes the "Information and Control" procedures, enabling both the information society’s users and services providers: to address to the Ministry for Science and Technology, to the Ministry of Justice and to the competent bodies in areas of consumption to obtain general information on their contractual rights and obligations within the frame of the rules applicable to electronic contracting; to be informed about the court and out-of-court dispute settlement procedures; to obtain the particulars of the Authorities, associations or organisations that may give them additional information or practical assistance. To this end, the relevant courts and arbitral tribunals, and also the persons in charge of the alternative out-of-court dispute settlement, will send to the Ministry of Justice the decisions and sentences issued in relation with the information society and electronic commerce. Also, the Ministry for Science and Technology is in charge of controlling the compliance, by the services provider, of the obligations established in the Law, to which the officers of the Ministry will carried out the necessary inspecting activities, and will be considered as Public Authorities when developing said activity. Last, the services providers of the information society are obliged to furnish the Ministry of Science and Technology all the information necessary for developing its functions, and to allow the inspectors of the Ministry the access to their facilities and to any relevant documents for controlling activities. Said information may not be used for different purposes than the purposes established by the Law.

Last Section of the Draft is Section VII, regulating "Infringements and Sanctions", to which services providers are subject when the Law are applicable to them.

Infringements may be very grave, grave or trivial.

An infringement shall be considered very grave when the services provider non-fulfil the obligation of suspending the data transmission or hosting, the access to the Net or any other service of the information society when so ordered by a competent administrative Authority; not notifying to the competent administrative Authorities any identification information related with the recipients of the services requested by said Authorities; or not fulfilling any order issued by the administrative Authorities for protecting the general interest protected by the Law.

Grave infringements are: not disclosing to users information as domicile and prices of the products or services offered; sending, within one year, through electronic mail or any similar mean, more than three non-solicited commercial communications; not disclosing to the recipient of the services, by electronic means, the general conditions to which the contract is subject; the habitual non-fulfilment of the obligation of confirming the reception of an acceptance, when the parties have not agreed the exclusion of said confirmation or the contract has been entered with a consumer; and the resistance, excuse or negative to the inspection activities of the relevant Authorities.

Trivial infringements are: not notifying to the relevant Public Register the domain names used for rendering the services; not notifying to users some of the information legally required; not notifying or denouncing the existence of illegal contents or activities kwon by the services provider; not fulfilling some of the conditions established for commercial communications; sending, through electronic mail or any similar mean, non-solicited commercial communications, provided that said infringement does not constitute itself a grave infringement; not providing the users with the information required for entering into electronic contracts, when the parties have not agreed the exclusion of said information or the contract has been entered with a consumer; non-fulfilment of the obligation of confirming the reception of an order, when the parties have not agreed the exclusion of said confirmation or the contract has been entered with a consumer, except when said infringement constitute itself a grave infringement.

Sanctions come from € 300,001 to € 600,000 for very grave infringements, from € 90,001 to € 300,000 for grave infringements and from € 3,000 to € 90,000 for trivial infringements. Very grave and grave infringements may also imply publishing at the services provider expenses, the sanction order at the Spanish Official Bulletin and at two national newspapers, or even at the sanctioned provider web site. Social repercussion of the infringement, number of users or contracts affected and the importance of the illegal action are to be considered when deciding upon the imposition of this sanction.

Fines are graduated depending upon the intention of the sanctioned provider, time during which the infringement has been committed, the repetition of the infringement, the nature and amount of the prejudices caused, the benefits obtained and the turnover affected by the infringement.

Provisory measures, consisting in suspending temporarily the activity of the services provider and granting bonds or other personal or in rem guarantees may also be ordered.

The Authority in charge of imposing the above mentioned sanctions is the Minister for Science and Technology in the case of very grave and grave infringements, and the Secretary of State of Telecommunications and for the Information Society in the case of trivial infringements. When applying the sanctions envisaged by the Law, the Spanish Public Administrations Legal Regime and Common Administrative Procedure Law shall be applied.

The Draft also contains one Additional Provision, containing the definitions of the terms included in the Law (in this respect, it is important to note that the term "information society services" or "services" also includes services non paid by its recipients, provided that said services constitute an economic activity for the services provider). The Law shall also contain one Transitional Provision (regulating the case of the services providers already having one or more domain names, to which a one year term is granted to register said domain names at the Public Register where the services providers are registered) and three Final Provisions. First Final Provision refers to the constitutional grounds of the Law, to be found at articles 149.1.6ª, 8ª and 21ª of the Spanish Constitution; Second Final Provision authorises the Government to enact a Regulation developing the Law. It is important to note that some aspects of the Law will be more detailed at the Regulation level. In any case, the Regulation may not contravene what is regulated in the Law. Last, Third Final Provision disposes that the Law shall be effective after three- month of its publication at the Spanish Official Bulletin. This three-month term may considered as normal, considering the importance of the provisions contained in the Law, as the intention of said vacatio term is to give the market the opportunity of adopting the necessary measures to fulfil the new obligations imposed by the Law.

As a conclusion, it can be said that the future Spanish Law meets all the contents of the Directive on electronic Commerce, which is to be transposed by the Members States on or before January 17th, 2002. Considering the above mentioned three-month term, the Law is to be published at the Spanish Official Bulletin on or before October 17th, 2001. It appears that the Government will have time enough to meet with said calendar, the more so if we consider the absolute majority currently held at the Parliament by the governing politic party, which will help when handling the definitive project.

As it has been explained, the Law intends to establish a balance for users and services providers capable of generating the necessary confidence in the market for incorporating new technologies to the commercial activity. The guarantees established for consumers will be enjoyed by consumers not only in Spain, but within the European Union, as the Spanish Law, as in the case of the regulations already enacted or to be enacted in the remaining Member States are based on the harmonised rules applicable within the European Union.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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