The Scope of the Act
Service Providers' Liability
Spamming
Electronic Agreements


The E-commerce Directive (2000/31/EC) was recently implemented into Spanish law by Act 34/2002, which came into force on July 11 2002. The act provides regulations on information society services, electronic agreements and service providers' obligations.

The Scope of the Act

Act 34/2002 applies to information society service providers in Spain. A service provider is considered to be domiciled in Spain if its legal residence - the place where its administrative activity and business management is undertaken - is Spain.

Act 34/2002 will only apply to information society service providers domiciled outside both the European Union and the European Economic Area (EEA) if such providers offer services or products through a permanent establishment located in Spain.

The act also applies to service providers domiciled in another EU member state or the EEA if the recipient of the services is domiciled in Spain and the services are related to certain items specified in the act.

Service Providers' Liability

Act 34/2002 outlines the obligations and liabilities of service providers carrying out intermediary activities such as transmission, mirroring and hosting services, and data location.

Providers are subject to liability if (i) they were aware of the existence of an illegal activity, and (ii) they failed to take appropriate steps or measures to remove illegal content.

These criteria are identical to those of the Digital Millennium Copyright Act and the E-commerce Directive.

Spamming

Act 34/2002 also regulates the sending of unsolicited commercial offers or advertisements, known as 'spamming'.

The act establishes that any commercial communication must be clearly identifiable, specifying the natural or legal person who is sending the communication.

If spamming takes place through email or similar means, commercial offers must include the word 'advertisement' in the message.

Likewise, sending any promotional communications or advertisements by email or any other similar means is prohibited unless they have been previously requested or authorized by the recipients.

Electronic Agreements

Finally, Act 34/2002 introduces a new regulation with respect to the way that electronic agreements are concluded.

The most important modification refers to the moment at which an agreement is considered to be concluded when the parties are not present at the same place and at the same time. This is a controversial matter that has been the focus of much debate. Act 34/2002 clarifies the different issues involved in determining the moment of completion. Both the Spanish Civil Code and the Spanish Commercial Code have been modified in order to provide consistent legal guidance on the matter.

Pursuant to this modification, an agreement is considered concluded when the offeror is in receipt of the consumer's acceptance. The agreement is then presumed to have been executed in the place where the offer was made.


For further information on this topic please contact Jose Carlos Erdozain at G√≥mez-Acebo & Pombo by telephone (+34 91 582 91 00) or by fax (+34 91 582 91 21) or by email ([email protected]).