Consumer Protection and Privacy
Pursuant to Decree 825 of May 2000, access to and use of the Internet has been declared a priority for the cultural, political, social and economic development of Venezuela.
This futuristic policy statement, with the fact that at least 60% of Venezuelan internet users purchase or order goods and services online, makes Venezuela a very attractive forum for e-commerce ventures.
The current regulatory framework in Venezuela is flexible enough to be applied to e-commerce, although there are still some areas that require legislation.
According to existing legislation, consent manifested through the click of a mouse does not have the same value as a handwritten signature. This raises legal issues when proving the existence and scope of an online contract. Therefore, a new law is expected to be approved soon that gives digital signatures and electronic documents the same legal effect as handwritten signatures and paper documents. This law will also regulate digital certificates and certification authorities. The draft law has been prepared by the Venezuelan Chamber of Electronic Commerce (www.cavecom-e.org.ve) with the Venezuelan-American Chamber of Commerce (www.venamcham.org).
The regulatory framework applicable to contracts and commercial activities is equally applicable to online services and e-commerce transactions.
The Civil Code and the Commercial Code establish basic rules regarding, for example, commercial operations and contracts, limits and waivers of contractual and strict liability, contractual capacity and consent.
Also applicable are the provisions regarding foreign investment, antitrust and international trade rules, and other industry-specific regulations such as banking and insurance.
Consumer Protection and Privacy
The Consumer Protection Law defines 'adhesion contracts' as those where "the terms of the agreement have been unilaterally established by the provider of goods or services." Under this definition, e-contracts (eg, 'Terms and Conditions of Use') are considered to be adhesion contracts and are subject to certain requirements. For example, the terms of the contract must be printed and written in clear language, and clauses limiting the consumer's rights must be printed in bold.
The Consumer Protection Law also regulates publicity and the mandatory guarantees that must be provided for goods and services offered to consumers.
Generally, the Constitution provides that the law shall regulate the use of information technology in order to ensure the protection of peoples' honour and privacy. Also, there is a Law for the Protection of Privacy in Communications, which seeks to protect the confidentiality and secrecy of personal communications. The law establishes criminal sanctions against those who violate such communications.
Although there are no special rules dealing with children and the Internet, the Organic Law for the Protection of Children and Adolescents establishes general rules regarding children and their right to privacy.
Online advertising is subject to the rules covering advertisement activities. The main source of regulation in this area is the Consumer Protection Law, which includes certain prohibitions such as:
- falsely announcing products to be new;
- comparative advertisements based on negative qualities of the competing product; and
- quoting testimonies without specifying their source.
The information about goods or services must be in Spanish, and the price must be expressed in local currency. Weight and measurements must be given in the metric system. Advertisement restrictions on specific products (eg, alcohol and cigarettes) may be also applicable online.
The 2000 Organic Telecommunications Law calls for regulation of the contents of all communications made via any telecommunications media. This law has yet to be approved, but in the meantime certain special regulations, which were enacted under the old Telecommunications Law, are still in full force and effect. Although some of those regulations are technology-specific (eg, limited to television or radio content), some are written in broad terms which could be interpreted as including internet content.
Venezuela offers adequate intellectual property protection for both online and offline operations. A new Andean Community rule was recently adopted for the protection of industrial property, which includes protection from abuse of distinctive signs in the context of e-mail and domain names. Reaccium administers the local country code top-level domain via its www.nic.ve registry.
Although there has been talk about giving legal standing to digital invoices, this has yet to be done. The main taxation issue regarding e-commerce operations is the interpretation of the concept of 'permanent establishment,' for the purpose of establishing residency under the current tax system. The National Tax Authority has yet to state its position about the interpretation of a permanent establishment in the context of digital operations and e-business.
For further information on this topic please contact Luis Miguel Vicentini at Baker & McKenzie by telephone (+58 212 276 5111) or by fax (+58 212 264 1532) or by e-mail ([email protected]).
The materials contained on this web site are for general information purposes only and are subject to the disclaimer