The e-commerce opportunity in Spain and compliance with its legal requirements

VolverE-commerce has been set as a business opportunity. However, SEO in the digital environment in Spain intended for B2C e-commerce (Business to Consumer) must involve an adaptation not only of internet users’ demands but also of regulatory requirements originated in different Law areas.

Recent information on e-commerce in Spain reflects this trend and statistics show an increase in turnover through this type of business (in 2014, B2C industry generated over 15,000 million Euro revenues), either through sales via laptop, PCs, Tablets or smartphones; regarding the latter, recent reports show 48% growth on commerce via mobile phone for 2015.

However, aside from the refreshing data and forecasts, it has to be considered that internet users are extremely demanding and a bad experience while buying may result harmful for e-commerce as a consequence of viral effect that comments on “bad shopping experiences” may have, and usually have, on the social media.

We, in Belzuz Abogados, as Digital Law specialists, believe that regarding e-commerce, besides elaborating adequate SEO strategies (investment in design, contents, easy browsing, knowledge of sales techniques -showrooming, webrooming- customer service, presence in social networks, etc.), it is also extremely important both complying with applicable regulations and the appropriate related information provided to consumer; for instance, matters such as personal data processing (intended use, data controller, data transfer, rights to access, modify, cancel and oppose (rights ARCO)), shopping process (pre-contractual information, contract legalisation, right to withdraw, payment methods, goods delivery), business communications (promotions, offers, discounts, draws).

All these matters, when well addressed in the information provided to the consumer, have a positive impact on the company/business SEO in the new reality of e-commerce.

To that end, in this article, we address briefly, as practical guidelines, the main regulatory aspects to be taken into account when starting e-commerce ventures.

II.- MOST RELEVANT E-COMMERCE OBLIGATIONS

1-.Law 34/2002, of 11 July, on Information Society and E-Commerce Services (hereinafter LSSI, as it is known in Spanish).

Regarding to e-commerce, LSSI regulates every aspect related to the information that should be presented in the webpage, usually under “Disclaimer”, on the company identification, liability of the service providers via internet and details on business communications via email.

2-. Organic Law 15/1999, of 13 December, on Personal Data Protection (hereinafter LOPD, as it is known in Spanish).

Regarding e-commerce, LOPD regulates every aspect related to the information that should be presented in the webpage, usually under “Privacy Policy”, on the compliance with personal data protection principles and rights:

- Personal data controller identity and address

- Existence of a personal data file registered before the Spanish Data Protection Agency (AEPD, as it is known in Spanish)

- Purpose of data processing

- Consent and communication of personal data

- Data origin, when they come from sources available to the public

- Rights to access, modify, cancel and oppose

- Security measures applied

- Information on business communications via email

- Information on type, use and any other aspects of Cookies (Cookie Policy)

3.-Royal Legislative Decree 1/2007, of 16 November, approving the Revised text of Law for the Protection of Consumers and Users and other complementary laws (hereinafter LGCyU, as it is known in Spanish).

Regarding e-commerce, LGCyU regulates every aspect related to the information that must be presented in the webpage, usually under “Terms and conditions of business”, and throughout all the purchase process and where everything related to the procedure must be informed.

Main highlights:

a) Before binding the consumer, the latter must have been provided clear and comprehensive Pre-contractual information on:

- Goods or services details

- Retailer details (including business name, telephone and fax numbers, email address, if any, to contact and communicate)

- Total amount (including taxes)

- Possible general terms and conditions of business

- Payment obligation and methods, goods delivery or services provision

- Language of the contract (whenever it is not the same as in the information provided)

- Conditions for withdrawal and a template for withdrawal form

- Returning costs.

- Utilities costs (water, power, gas, heating)

- Legal guarantees.

- If after-sale customer services is available

- If the Code of conduct is available

- Contract duration

- Consumer obligations duration

- Functionality of the content

- Interoperability (either in products or digital services)

- Possible out-of-court complaint mechanisms.

- Deposit or other financial guarantees.

b) Regarding the already legalised contract with the consumer, some formal requirements must be complied with:

1.- Information must be available for consumers in accordance with the used means of distance communications (the webpage itself) and it must be clearly shown, at least in Spanish, with clear and highlighted terms before the ordering section or option.

2.- Information on duration, obligations, applicable restrictions, rights and payment methods must be provided.

3.- When the order is placed by means of a button, it shall be stated: “order with payment obligation”.

4.- Particularities: (Smartphone, Tablet, etc.) it must be provided at least:

- Main features.

- Retailer details.

- Total amount.

- Right to withdraw.

- Contract duration.

- Termination conditions.

Redirecting to the webpage where the rest of the information is shown.

5.- Confirmation of the contract. It must be provided on paper or on other durable media if the consumer agrees and in a reasonable amount of time (at the latest at the time of the goods delivery or at the start of the service).

6.- Conditions on pre-contractual information, unless they are already provided (if they are available on the webpage)

c) Regarding the contract withdrawal.

1.- The term to exercise this right is 14 calendar days after

For services, entering the contract and, for goods, after when the consumer acquires the material possession of the ordered good, or:

In the event of several goods delivery, when the consumer acquires the material possession of the last good. In the event of several parts or pieces, when the consumer acquires the material possession of the last part or piece. For periodic deliveries, when the consumer acquires the material possession of the goods. In supply contracts, at the time of entering them.

2.- The retailer may offer the consumer the option of fulfilling an online withdrawal form (to be forwarded along with the information prior to the contract) or the possibility to send a clear statement of the withdrawal decision. The acknowledgement of the receipt of such withdrawal must be immediately communicated by means of a durable medium.

3.- The retailer must refund every payment received without undue delay and before the end of the term of 14 calendar days, in the event of a withdrawal announcement.

Exception: in the event that the consumer had selected a different delivery mode from the cheaper delivery service.

4.- Undue delay: the retailer must pay twice the paid amount, apart from the right of the customer to be compensated for damages exceeding such amount.

5.- The retailer may retain the refund until they receive the goods or until a returning proof is provided.

6.- Consumer Rights and Obligations:

To return the goods in the 14 calendar days after communicating the decision, unless the retailer volunteers to collect the goods.

To bear the returning costs (including transport) unless the retailer accepts to bear them or has not informed the consumer about the obligation to bear them.

Where the nature of goods may not allow returning them via mail, the retailer shall collect them at their expenses. T

he consumer is liable for the deterioration in value is attributable to the goods having been handled in a manner other than that necessary for ascertaining their nature.

The consumer shall not be liable for the deterioration in value if the retailer has not informed them about their right to withdraw.

d) Regarding contract legalisation

1.- It must be legalised without undue delay and within 30 calendar days after entering the contract, unless otherwise agreed.

2.- In the event of goods or services unavailability:

The situation must be informed and the paid amounts must be returned without undue delay.

Where goods or services are unavailable, when the consumer and user is expressly informed of such a possibility, the retailer might provide, without overcharging, a good or service with similar features and equal or better quality.

3.- In the event of undue delay in returning paid amounts:

The consumer may claim twice the amount and is entitled to be compensated when exceeding that amount.

4.- Whenever the retailer does not deliver the goods in the agreed term, the consumer may request the retailer to deliver the goods in an extra reasonable term, before terminating the contract, and if even on that time the retailer does not deliver the goods, the consumer shall be entitled to terminate the contract.

5.- Payment through credit/debit card:

The retailer shall not accept charges for card use exceeding the borne cost for that media use.

In order to cancel all fraudulent or unlawful uses of cards, debit must be stated and recredit must be made as soon as possible.

If the returning transaction request is not caused by the right to withdraw o terminate, the consumer is bound to compensate any damages caused by such cancellation.

The retailer, on whose behalf they act, and trustee or commission agent, acting in their own name, are jointly responsible for the compliance with the aforementioned obligations.

To sum up, as internet attorney in Spain, we may say that, even the prospects on e-commerce being, per se, excellent for this current year 2015, without a doubt, a requirement for the e-commerce success must be to count with specialised advice that ensures legal cover on different matters regarding e-commerce.

Departamento de Tecnologías de la Información y de la Comunicación (TIC)

 

Belzuz Abogados SLP

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