Legal Advice
CONTENT OF THE WEBSITE
Any website is obliged to ensure the requirements established in Law 34/2002, for the Information Society and Electronic Commerce Services (LSSICE), and the European Directive 2000/31 / EC.
This regulation establishes a series of formal obligations that must be fulfilled by any web page designed and intended for the direct or indirect sale of products or services. If the website also includes systems for the remote sale of products or services (electronic commerce), additional obligations must be fulfilled.
These are, in summary form, the formal obligations that should be applied when implementing an e-commerce:
1. OBLIGATIONS DERIVED FROM THE LSSICE
1.1 Information about the service provider
The person, company or entity that owns the website will be obliged to make available to users, permanently, easily, directly and free of charge, the following information (this document is the LEGAL NOTICE and is accessed as a link in the START page of the website):
a) Identity of the service provider (HOTEL XALOC PLAYA, SL. B07925050, C/ SAN JORGE, 13 07702 MAHÓN email: hotel@xaloc.com, telf: +34 971 159 120)..
1.2 Information and compulsory formalities for the online purchase process
1.2.1 Accessible information BEFORE placing the order (contract)
In addition to complying with the information requirements established in the previous section, the owner of the website must, before starting the contracting procedure, make clear, easy, and permanent information available to the recipient; understandable and unequivocal about the following aspects: a) The different procedures that must be followed to formally complete the contract.
b) If the Provider is going to file the electronic document in which the contract will be formalized and if it will be accessible.
c) The technical means that the owner makes available, as to identify and correct errors in the data entry.
d) The language or languages in which the contract may be formalized. The Law allows this information (points a, b, c and d) to be included in the general LEGAL NOTICE.
e) The GENERAL CONDITIONS to which, in its case, the contract must be subjected, so that these can be stored and reproduced by the addressee. EXCEPTIONS: The Provider will not have the obligation to provide the information indicated in the previous section when:
1. If both contracting parties agree and none of them has the consideration of being a consumer.
2. The contract has been concluded exclusively through an email exchange or other equivalent electronic communication. 1.2.2 Information AFTER the placement of the order. The owner is obliged to confirm receipt of the order to the issuer, by any of the following means:
a) The sending of an acknowledgment of receipt by electronic mail or any other equivalent means of electronic communication, to the address indicated by the acceptor, within twenty-four hours of receipt.
b) Directly on the same web page, as long as the consumer is allowed to keep this information. As in the previous section, it will not be necessary to confirm receipt of the acceptance of an offer when:
1. Both contracting parties agree and none of them has the consideration of being a consumer.
2. The contract has been concluded exclusively through the exchange of electronic mail or other equivalent electronic communication, provided that these means are not used for the exclusive purpose of avoiding compliance with such obligation. For testing purposes, it is recommended that the hiring process be carried out using a system that allows the user to accept the conditions and confirms the purchase of the products once they have been able to access them.
2. OBLIGATIONS DERIVED FROM THE SPANISH LOPD REGULATION IN THE MATTER OF PERSONAL DATA PROTECTION
In addition to the obligations established by the LSSICE, the general obligations deriving from the LOPD-GDPR must be taken into account, which will be fulfilled by having contracted said service on this web page:
a) Maintain a record of treatment activities. Register of files in the AEPD (Spanish Data Protection Agency).
b) Comply with the duties of INFORMATION and CONSENT.
c) Contracts with DATA PROCESSORS
d) Comply with the corresponding security measures.
3. OTHER OBLIGATIONS
We must bear in mind that, apart from the obligations indicated, which are the most important in any online purchase process and that require a series of formalizations prior to the implementation of the website, there are other obligations derived from other standards of a general nature that may affect any new establishment (whether real or virtual), the purchasing process or even the recipients.
This regulation must be kept in mind at the time of writing the general conditions of contracting and at the time of providing the service (for example, the deadline to proceed with the return of an order under the Consumer Protection Laws).
The most important rules are:
a) Royal Decree 1906/1999, of December 17, which regulates telephone or electronic contracting with general conditions.
b) Law 44/2006 of December 29, to improve the protection of consumers and users.
c) RDL 1/2007, of November 16, which approves the revised text of the General Law for the Defense of Consumers and Users (TRLGDCU).
d) Law 29/2009, of December 30, which modifies the legal regime of unfair competition and advertising to improve the protection of users and consumers.
e) Law 3/2014, of March 27, by which the revised text of the General Law for the Defense of Consumers and Users is modified.
f) Law 7/1998, of April 13, on General Contracting Conditions, and subsequent amendments,
g) Law 7/1996, of January 15, on the Regulation of Retail Trade.
4. COOKIES REGULATIONS
Another obligation of the LSSICE is the acceptance of the use of cookies by users who access the web. The service provider, when installing third-party cookies on the users' terminals, has to ask for their consent to do so. (more info in the COOKIES POLICY document)
CONCLUSIONS
The sale of products over the internet is regulated specifically by the LSSICE and the current regulations on data protection (LOPD-RGPD), as well as other laws that may directly or indirectly affect the way the service is provided that must be taken into account.
Most of the obligations that are established are of a formal nature. It is advisable to have the following information on the web page accessible via links: 'legal notice', 'privacy policy', 'cookie policy' and 'general contracting conditions' (for e-commerce). These texts are provided by our platform in your documents area.
Furthermore, for the cases relating of e-commerce, the purchase process must be carried out in such a way that it is clear that the consumer can access the necessary information before contracting, that they accept the conditions and, once the contract has been made, that they can access (and save) their confirmation. Our platform provides you with generic 'general contracting conditions' but you must review them to suit your activity according to the different regulations that may affect you depending on the type of products or services sold, as mentioned above.
For all these reasons, in the case of an online store, we recommend performing a full audit of LSSICE so that the conditions fully comply with your activity. If you want to carry out a custom audit on this matter, you may contact us to provide you with a budget for such an effect.
