Commercial Communications by Electronic Means
Other Requirements to be Considered by Lenders
Data Terminal Equipment
When service providers use devices for storing and retrieving data terminal equipment:
- Inform recipients of clear and complete information about its use and purpose, giving them the opportunity to refuse treatment of the data using a simple and free method.
Internet Access Providers
As of March 29, 2008, internet access providers should:
- Inform users about technical means of protection against internet security threats (viruses, spyware, spam) and tools for filtering unwanted content.
- Inform customers about the safety measures that apply to the provision of their services.
- Inform customers about the potential liabilities they may incur by the use of the internet for illicit purposes.
Providers of Electronic Mail Services
As of March 29, 2008, providers of electronic mail services shall:
- Inform customers about safety measures that apply when providing services.
Intermediary Service Providers
Intermediary service providers:
- Have no obligation to monitor content that they host or transmit, or that is classified into a directory of links, but should cooperate with public authorities when requested to stop the provision of a service or to remove any information or content from the web.
Obtaining Express Consent for Commercial Communications by Email
The recipient’s consent to receive commercial communications by email could be sought in the following ways:
- As part of a procurement procedure or subscription to a service that takes place via the web and in which the recipient must provide their email. This includes general conditions of hiring with a clause on the recipient’s consent to receive commercial communications and seeking their acceptance along with the contract or a specific question asking whether the user accepts the sending of commercial communications.
Consent or Authorization
The provision of consent requires the demonstration of free will, informed, specific, and unambiguous acceptance of sending commercial communications by electronic mail or other equivalent individual communication, leaving no doubt. This requirement is understood to be fulfilled, for example, if the service provider, after informing the user about the use to which their address or telephone number will be put, offers the opportunity to express their agreement with the sending of commercial communications by “clicking” in a box provided for that purpose.
This requirement is also fulfilled when, without expressly authorizing the reception of commercial communications, the recipient tolerated or did not oppose shipping by not responding to messages for which consent is sought and, of course, when they have not objected to its receipt.
Jurisdiction for Online Purchases from Providers in Other Countries
To determine the jurisdiction for the resolution of disputes in contractual matters where a consumer is involved as a party to the contract, it is necessary to refer to private international law rules, which take into account different points of connection to determine the jurisdiction of judges and courts.
In general, a consumer resident in Spain who has concluded a contract online with a provider located outside of Spain can only be sued in the Spanish courts and may, in turn, sue the provider before the Spanish courts when the contract is concluded by an offer that the provider had personally addressed (e.g., by email) or had led to the Spanish market or multiple markets, including the Spanish one.
In other cases, if a consumer resident in Spain wanted to sue a company based outside the country for breaching a contract concluded by electronic means, it would be necessary to allege other circumstances, for example, that the obligation giving rise to the demand is to be performed in Spain, to establish the jurisdiction of Spanish courts.
As seen in cross-border transactions, it cannot always be ensured that Spanish judges and courts have jurisdiction to entertain the application. Therefore, it is important to consider alternative dispute resolution mechanisms, particularly those based on the use of electronic media and recognized in other states.
Conditions for Sending Commercial Communications by Electronic Means
The Act allows the sending of commercial communications using the internet or other electronic means, provided that they are identified as such and clearly indicate the person or company on whose behalf they were made or the advertiser.
It allows the sending of commercial advertising messages or emails to users who have previously requested or explicitly authorized them. However, it also allows the sending of commercial communications to those users with whom there is a prior contractual relationship, in which case the supplier may send advertisements for products or services similar to those previously employed by the client.
In any case, the provider must give the recipient the opportunity to object to the processing of data for promotional purposes, both at the time of data collection and in each of the commercial communications addressed to them.
The Act requires service providers to enable simple and free procedures through which recipients can revoke the consent that had been provided, as well as to provide easily accessible information about such procedures.
These rules also apply to sending advertisements through other equivalent individual electronic media, such as mobile phone messaging services.