Application of Legislation
Obligations and Liability
On July 11 2002 the Spanish Parliament approved the Law on Information Society Services and E-commerce (34/2002), which implements the EU Information Society Services Directive (EC/2000/31). The final version retains the amendments introduced by the Senate after several drafts were subjected to public consultation. The law will enter into force on October 12 2002.
Under the new law 'information society services' are defined as all services provided electronically (normally in exchange for renumeration) at the individual request of the recipient. This concept also includes services provided for free where these perform an economic function for the service provider.
The new legislation applies to (i) service providers established in Spain, and (ii) services provided through the Spanish permanent establishment of a service provider based outside Spain. For some matters (eg, IP rights, consumer contracts and 'spam') the new law also governs the relationship between service providers established in the European Union or European Economic Area, and Spanish resident users. However, the law does not regulate information society services rendered by public notaries and property and mercantile registrars in the performance of their public duties, or by lawyers and procurators in the course of judicial or arbitration procedures.
The provision of information society services is not subject to administrative authorization. However, the service providers must notify the Mercantile Registry or any other administrative body with which they are registered, of the domain name or internet address they use to identify themselves on the Internet.
The law establishes the obligations and liability applicable to service providers. It encourages the use of self-regulatory codes which govern different matters, such as the procedure for the withdrawal of illegal content or the protection of users regarding the sending of unsolicited commercial communications. The law will also ensure the participation of consumers and users associations in the drafting of these self-regulatory codes.
Commercial communications must be easily identifiable to the consumer, and must include the word 'advertisement' at the beginning of the message. The law expressly prohibits the sending of unsolicited commercial communications.
The legislation also regulates the validity of contracts executed by electronic means, setting forth the applicable law and the minimum information that must be made available to the counterparty.
Service providers which infringe the obligations established by the law may be fined up to €600,000.
For further information on this topic please contact Rafael Aguilera or Grisel Sayalero at Gómez-Acebo & Pombo by telephone (+34 91 582 9100) or by fax (+34 91 582 9114) or by email ([email protected] or [email protected]).