Preliminary draft modifies Spanish E-commerce Act

20 November 2006

Alexander Benalal

The Spanish Industry, Tourism and Commerce Ministry has issued a preliminary draft of a law which is aimed at fostering the Information Society. Once this law has been passed by parliament and published, it will significantly amend Act 34/2002 on Information Society Services (the “E-commerce Act”) and Act 59/2003 on Electronic Signatures (the “Electronic Signature Act”). It will also slightly amend Act 32/2003 on Telecommunications (the “Telecommunications Act”). The draft, which arises in the framework of the actions undertaken within Plan 2006-2010 for the development of the Information Society and convergence with Europe and between Autonomous Communities and Autonomous Cities (the so-called “Plan Avanza” approved on November 2005 by the Spanish government), also includes a number of provisions aimed at facilitating electronic communications between users and consumers and the administration and private companies that provide a number of significant services. The draft will therefore have a significant impact on the new technologies legislative framework with a number of changes, the most relevant of which are explained below:

Amendments to the E-commerce Act

The first measure of the draft is a simplification of what is currently article 8 of the E-commerce Act which relates to measures of constraint that can be imposed by the “relevant authorities” over information society services. In this respect the explanatory statement of the draft makes clear that each relevant authority which is able to impose measures of constraint is only entitled to do so when permitted by its own regulations. The current wording of the E-commerce Act has caused fear in operators and has proved to be unnecessary.

The draft also removes the obligation of information society services providers to register their domain names within the Commercial Registry and the relevant sanctions for not doing so.

Likewise, due to the fact that a preliminary draft of the law has been issued in order to implement Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, the current provisions contained in the E-commerce Act are deemed obsolete and have been deleted. In place of these provisions, the draft sets out a new article whereby internet access providers are obliged to inform their users of the technical means implemented against computer viruses, spy programmes, unsolicited electronic mails and access to unlawful contents and services.

In addition, and following requests made by a number of operators, any advertising through electronic mail or equivalent communication means does not need to include the word “publicidad” (advertising) anymore. The abbreviation “publi” (ad) is sufficient.

Finally article 27 of the E-commerce Act is amended in order to differentiate the information that the operator must provide to the consumer before any electronic trading from that which can be provided just before completing the electronic agreement.

Amendments to the Electronic Signature Act

The draft replaces the current definition of “electronic document” contained in the Electronic Signature Act by another definition which is more in line with other Spanish regulations, as well as with the definition given in other European countries: “any representation of a fact, image or idea incorporated by electronic means”.

Likewise the draft implies a relaxation of the exemption from liability rules in favour of the providers of certification services.

Amendments to the Telecommunications Act

The draft modifies the current wording of the Telecommunications Act in order to reinforce users’ rights against networks and providers of electronic communications services by including an administrative sanction in case of breach of such rights in the field of telecommunications.

Finally, apart from all the amendments mentioned above, the draft also sets out a number of clauses aimed at fostering the use of the electronic invoice, the general use of any electronic means throughout the different phases of electronic trading, and guaranteeing that users and consumers will be able to use electronic signature certificates when they deal with companies providing a number of significant services (i.e consumers should be able to execute agreements, modify the terms and conditions of their agreements, access information related to invoices, subscribe or cancel services, complain using electronic methods in certain key sectors like e- banking, insurance mediation, investment services, etc).