Law 34/2002, Of 11 July, Services Of The Society Of Information And Electronic Commerce.

Original Language Title: Ley 34/2002, de 11 de julio, de servicios de la sociedad de la información y de comercio electrónico.

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

TEXT

JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following Law.

EXPLANATORY STATEMENT

I

This Law is intended to incorporate into the Spanish legal order Directive 2000 /31/EC of the European Parliament and of the Council of 8 June on certain aspects of the services of the company information, in particular, electronic commerce in the internal market (e-commerce directive). It also partially incorporates Directive 98 /27/EC of the European Parliament and of the Council of 19 May concerning actions for the protection of the interests of consumers, on the regular basis, in accordance with the provisions laid down in it, an action of cessation against the conduct that contravene the provisions of this Law.

What Directive 2000 /31/EC refers to as the 'information society' is determined by the extraordinary expansion of telecommunications networks and, in particular, the Internet as a vehicle for the transmission and exchange of all type of information. Its incorporation into economic and social life offers countless advantages, such as improving business efficiency, increasing the choice of users and the emergence of new sources of employment.

But the introduction of the Internet and the new technologies comes with some legal uncertainties, which need to be clarified with the establishment of an appropriate legal framework, which will generate in all the actors involved. confidence needed for the use of this new medium.

That is what this Law seeks, which is part of the application to the activities carried out by electronic means of the general and special rules that regulate them, dealing only with those aspects that, either novelty or because of the peculiarities involved in their exercise by electronic means, they are not covered by such regulation.

II

A broad concept of "information society services", which includes, in addition to the procurement of goods and services by electronic means, the provision of information by such means (such as the one in which the information is available) is provided. (a) to carry out the activities of the network, to the provision of access to the network, to the transmission of data by telecommunications networks, to the holding of temporary copies of the data, and to the Internet pages requested by users, hosting on the information servers themselves, services or applications provided by others or to the provision of search tools or links to other Internet sites, as well as any other service provided at the individual request of users (download of video files or audio ...), provided that it represents an economic activity for the provider. These services are offered by telecom operators, Internet access providers, portals, search engines or any other subject that has a website through which you make any of the indicated activities, including e-commerce.

From a subjective point of view, the Law applies, in general, to service providers established in Spain. "Establishment" means the place from which an economic activity is directed and managed, a definition which is inspired by the concept of tax domicile collected in the Spanish tax rules and which is compatible with the concept (a) establishment material predicated on Community law. The Law also applies to those who, without being resident in Spain, provide information society services through a "permanent establishment" located in Spain. In the latter case, the subjection to the Law is only partial, with respect to those services that are provided from Spain.

The place of establishment of the service provider is an essential element in the Law, because it depends on the scope not only of this Law, but of all the other provisions of the Spanish law that are application, depending on the activity they develop. Furthermore, the place of establishment of the provider determines the law and the competent authorities for the control of its compliance, in accordance with the principle of the application of the law of the country of origin which inspires Directive 2000 /31/EC.

Furthermore, it is only possible to restrict the freedom to provide information society services in Spain from other countries belonging to the European Economic Area in the cases provided for in the Directive. 2000 /31/EC, which consists in the production of serious harm or danger against certain fundamental values such as public order, public health or the protection of minors. Similarly, the provision of services coming from those States may be restricted where they affect one of the matters excluded from the country of origin principle, which the Act specifies in Article 3, and the provisions of the Spanish legislation which, where applicable, is applicable to them.

III

The name or domain names of the Internet which correspond to the service provider are provided for in the public register where, where appropriate, the service provider is registered for the acquisition of legal personality or the sole purpose of advertising, in order to ensure that the link between the provider, his physical establishment and his/her "establishment" or location on the network, which provides his/her internet address, is easily accessible to the citizens and public administration.

The Law also establishes the obligations and responsibilities of service providers who perform intermediation activities such as transmission, copying, hosting and location of data on the network. In general, they impose a duty of collaboration on such providers to prevent certain services or illegal content from being disclosed. The responsibilities that may arise from the failure to comply with these rules are not only administrative, but also civil or criminal, depending on the legal goods concerned and the rules that apply.

It also highlights the law, its desire to protect the interests of the recipients of services, so that they can enjoy sufficient guarantees when it comes to hiring a service or the Internet. To this end, the Law imposes on service providers the obligation to provide access to their identification data to those who visit their website; to inform the recipients about the prices they apply to their services. and to enable them to view, print and archive the general conditions for the contract to be submitted, where appropriate. Where the procurement is carried out with consumers, the service provider shall, in addition, guide them during the procurement process, indicating the steps to be taken and how to correct any errors in the introduction of data; and confirm the accepted acceptance once received.

As far as commercial communications are concerned, the Act provides that such communications must be identified as such, and prohibits their submission by e-mail or other equivalent electronic means of communication, unless the addressee has given its consent.

IV

The conclusion of contracts by electronic means is also encouraged, when the Law is affirmed, in accordance with the spiritualist principle that governs the perfection of contracts in our law, the validity and effectiveness of consent. by electronic means, stating that the express admission of this technique is not necessary for the contract to take effect between the parties, and to ensure the equivalence between paper documents and electronic documents for the purposes of the compliance with the "written form" requirement in various laws.

The opportunity is used to set the time and place for the conclusion of electronic contracts, adopting a single solution, also valid for other types of contracts concluded at a distance, which unifies the disparate criterion content so far in the Civil and Trade Codes.

The provisions contained in this Law on general aspects of electronic procurement, such as those relating to the validity and effectiveness of electronic contracts or the time of the provision of consent, will be application even if neither party has the status of a service provider or recipient of the information society.

The Law promotes the elaboration of codes of conduct on the matters regulated in this Law, considering that they are an instrument of self-regulation especially apt to adapt the various precepts of the Law to the specific characteristics of each sector.

Because of its simplicity, speed and convenience for users, the use of arbitration and alternative dispute resolution procedures that can be created by codes of conduct, to be used, is also enhanced. disputes that may arise in electronic procurement and in the use of other information society services. Furthermore, the use of electronic means in the processing of such procedures is encouraged, while respecting, where appropriate, the rules which, on the use of such means, establish the specific rules on arbitration.

In accordance with the provisions of Directives 2000 /31/EC and 98 /27/EC, the action of cessation may be regulated which may be exercised in order to cease the conduct of conduct contrary to this Law which infringes the interests of the consumers and users. In addition to the provisions of this Law, it should be taken into account for the exercise of this action as laid down in the General Law on the incorporation of Directive 98 /27/EC.

The Law also provides for the possibility for citizens and entities to go to different ministries and administrative bodies to obtain practical information on various aspects related to the subject matter of This law will require the establishment of mechanisms to ensure maximum coordination between them and the homogeneity and consistency of the information provided to users.

Finally, a proportionate but effective sanctioning regime is established, as indicated in Directive 2000 /31/EC, to deter service providers from non-compliance with the provisions of this Act.

The Law also provides for a series of forecasts aimed at making the accessibility of people with disabilities effective in the information provided by electronic means, and especially information provided by public administrations, a commitment to the resolution of the Council of the European Union of 25 March 2002 on the accessibility of public websites and their content.

This provision has been drawn up following a broad public consultation process and has been submitted to the procedure for information on technical standards and regulations provided for in Directive 98 /34/EC of the European Parliament and of the Council. European Parliament and the Council of 22 June, as amended by Directive 98 /48/EC of the European Parliament and of the Council of 20 July and Royal Decree 1337/1999 of 31 July.

TITLE I

General provisions

CHAPTER I

Object

Article 1. Object.

1. Regulation of the legal system of the services of the information society and of contracting by electronic means, as regards the obligations of the service providers including those acting as such, is the subject of this Law. (a) intermediaries in the transmission of content by telecommunications networks, commercial communications by electronic means, prior information and subsequent to the conclusion of electronic contracts, the conditions relating to their validity and the effectiveness and sanctioning regime applicable to the service providers of the company of the information.

2. The provisions of this Law shall be without prejudice to the provisions of other State or regional rules which are outside the scope of the coordinated regulatory framework or which are intended to protect public health and safety, including safeguarding national defence, the interests of the consumer, the tax regime applicable to the services of the information society, the protection of personal data and the regulatory rules for the defence of competition.

CHAPTER II

Scope

Article 2. Service providers established in Spain.

1. This Law shall apply to the service providers of the information society established in Spain and to the services provided by them.

A service provider shall be understood to be established in Spain where his residence or registered office is in Spanish territory, provided that they coincide with the place where the service provider is effectively centralised. administrative management and management of their businesses. In another case, it shall be treated to the place where such management or management is carried out.

2. Furthermore, this law will apply to the services of the information society which resident or resident providers in another State offer through a permanent establishment located in Spain.

A provider shall be deemed to operate by means of a permanent establishment situated in Spanish territory where it has, on a continuous or regular basis, facilities or places of work, in which it carries out all or part of your activity.

3. For the purposes set out in this Article, the service provider shall be presumed to be established in Spain where the provider or any of its branches has registered in the Register of Trade or in another Spanish public register in which he was necessary registration for the acquisition of legal personality.

The use of technological means located in Spain, for the provision or access to the service, will not serve as a criterion for determining, on its own, the establishment in Spain of the provider.

4. The information society service providers established in Spain shall be subject to the other provisions of the Spanish legal order which are applicable to them, in the light of the activity they carry out, irrespective of their the use of electronic means for their performance.

Article 3. Service providers established in another Member State of the European Union or the European Economic Area.

1. Without prejudice to Articles 7.1 and 8, this Law shall apply to providers of information society services established in another Member State of the European Union or the European Economic Area where the recipient of such information is the services provided in Spain and the services concerned with the following subjects:

a) Intellectual or industrial property rights.

b) Emission of advertising by collective investment institutions.

(c) Direct insurance activity carried out under the right of establishment or under the freedom to provide services.

(d) Obligations arising from contracts concluded by natural persons who have the status of consumers.

(e) Regime of choice by the contracting parties to the law applicable to their contract.

f) The lawfulness of commercial communications by email or other unsolicited equivalent electronic means of communication.

2. In any event, the constitution, transmission, modification and extinction of real property rights in Spain will be subject to the formal requirements of validity and effectiveness established in the Spanish legal order.

3. Service providers referred to in paragraph 1 shall also be subject to the rules of the Spanish legal system governing the matters referred to in that

.

4. The provisions of paragraphs 1 and 2 shall not apply to cases where, in accordance with the rules governing the matters listed in paragraph 1, the law of the country in which the law is established is not applicable. service recipient.

Article 4. Providers established in a State outside the European Union or the European Economic Area.

To providers established in countries which are not members of the European Union or the European Economic Area, the provisions of Articles 7.2 and 8 shall apply to them.

The providers who direct their services specifically to the Spanish territory will also be subject to the obligations laid down in this Law, provided that this does not contravene the provisions of international treaties or conventions. that are applicable.

Article 5. Services excluded from the scope of the Act.

1. The following activities and services of the information society shall be governed by its rules:

(a) Services provided by notaries and registrars of the property and mercantiles in the exercise of their respective public functions.

b) Services provided by lawyers and prosecutors in the exercise of their representation and defense functions in judgment.

2. The provisions of this Law, with the exception of Article 7.1, shall apply to the services of the information society relating to gambling involving bets of economic value, without prejudice to the provisions of this Law. established in its specific state or regional legislation.

TITLE II

Providing information society services

CHAPTER I

Principle of freedom to provide services

Article 6. Not subject to prior authorization.

The provision of information society services shall not be subject to prior authorisation.

This rule shall not affect the authorisation regimes provided for in the legal order which do not have the exclusive and exclusive object of the electronic provision of the corresponding services.

Article 7. Principle of freedom to provide services.

1. The provision of information society services which come from a provider established in a Member State of the European Union or the European Economic Area shall be carried out under the freedom to provide services, without being able to (a) to establish any restrictions on them for reasons deriving from the coordinated regulatory framework, except in the cases provided for in Articles 3 and 8.

2. The application of the principle of the freedom to provide information society services to providers established in non-member States of the European Economic Area shall be subject to international agreements which are applicable.

Article 8. Restrictions on the provision of services.

1. Where a particular service of the information society atents or may be able to comply with the principles set out below, the bodies responsible for their protection, in the exercise of the duties they have legally attributed to them, they may take the necessary measures to interrupt their performance or to withdraw the data that they violate.

The principles referred to in this section are as follows:

a) Safeguarding public order, criminal investigation, public security, and national defense.

(b) The protection of public health or natural persons who have the status of consumers or users, even when acting as investors.

c) Respect for the dignity of the person and the principle of non-discrimination on grounds of race, sex, religion, opinion, nationality, disability or any other personal or social circumstance, and (d) The protection of young people and childhood.

In the adoption and enforcement of the restriction measures referred to in this paragraph, the guarantees, rules and procedures provided for in the legal order to protect the rights to privacy will be respected in any case. personal and family, to the protection of personal data, to freedom of expression or to freedom of information, when these could be affected.

In all cases in which the Constitution, the rules governing the respective rights and freedoms or those applicable to the different matters confer jurisdiction on the courts to intervene in the the exercise of activities or rights, only the competent judicial authority may take the measures provided for in this Article.

2. If, in order to ensure the effectiveness of the decision which agrees to the interruption of the provision of a service or the withdrawal of data from a provider established in another State, the competent body shall consider it necessary to prevent access from Spain may order the intermediary service providers established in Spain, directly or on a reasoned request to the Ministry of Science and Technology, to take the necessary measures to prevent such access.

Article 11 shall apply where the data to be withdrawn or the service to be discontinued from a provider established in Spain.

3. The restriction measures referred to in this Article shall be objective, proportionate and non-discriminatory, and shall be taken as a precautionary measure or in the execution of the decisions to be taken in accordance with the administrative procedures. legally established or those provided for in the relevant procedural law.

4. Outside the scope of legal proceedings, where restrictions are imposed which affect a service of the company of information which comes from one of the Member States of the European Union or the European Economic Area other than Spain, the following procedure will be followed:

(a) The competent body shall require the Member State in which the provider concerned is established to take appropriate measures. Where it is not adopted or is not sufficient, that body shall notify the European Commission or, where appropriate, the Joint Committee of the European Economic Area and the Member State concerned of the measures which it intends to take. to adopt.

(b) In the case of urgency, the competent authority may take appropriate measures, notifying them to the Member State of provenance and to the European Commission or, where appropriate, to the Joint Committee of the European Economic Area within the time limit. 15 days since its adoption. It shall also indicate the cause of such urgency.

The requirements and notifications referred to in this paragraph shall always be made through the authority of the General Administration of the competent State for the communication and transmission of information to the European Communities.

CHAPTER II

Obligations and liability regime of the service providers of the information society

SECTION 1. OBLIGATIONS

Article 9. Record of the domain name.

1. Information society service providers established in Spain shall communicate to the Trade Registry in which they are registered, or to the other public register in which they are registered for the acquisition of personality. the legal or the sole effects of advertising, at least, a domain name or Internet address which, if any, uses for their identification on the Internet, as well as any act of substitution or cancellation thereof, unless such information Record already in the corresponding record.

2. Domain names and their replacement or cancellation shall be entered in each registry, in accordance with their regulatory standards.

Annotations in the Mercantile Records shall be communicated immediately to the Central Mercantile Register for inclusion among the data that are the subject of information publicity by that Registry.

3. The communication obligation referred to in paragraph 1 shall be met within one month of the acquisition, replacement or cancellation of the relevant domain name or address of the Internet.

Article 10. General information.

1. Without prejudice to the requirements which are laid down in the rules in force, the service provider of the information society shall be required to have the means to enable the service to be addressed to the service recipients. as to the competent bodies, access by electronic means, permanently, easily, directly and free, to the following information:

(a) Your name or social name; your residence or address, or, failing that, the address of one of your permanent establishments in Spain; your e-mail address and any other information you may establish with the direct and effective communication.

(b) The data in the Register referred to in Article 9 of the Register.

(c) In the event that their activity is subject to a prior administrative authorisation regime, the data relating to that authorisation and the identification of the competent authority responsible for its supervision.

d) If you exercise a regulated profession you must indicate:

1. The data of the Professional College to which, if any, it belongs and number of collegiate.

2. º The official or professional academic title with which you count.

3. The State of the European Union or the European Economic Area in which that title was issued and, where applicable, the relevant approval or recognition.

4. The professional standards applicable to the exercise of their profession and the means through which they can be known, including electronic ones.

e) The tax identification number that corresponds to it.

f) Clear and accurate information about the price of the product or service, indicating whether or not it includes applicable taxes and, where applicable, shipping charges.

g) The codes of conduct to which, if any, this is adhered and how to consult them electronically.

2. The obligation to provide this information shall be fulfilled if the provider includes it on its website or website under the conditions set out in paragraph 1.

Article 11. Duty of collaboration of the intermediary service providers.

1. Where a competent body has, by reason of the matter, ordered, in the exercise of the duties which it is legally entitled to do so, that the provision of a service of the information society or the withdrawal of certain content be interrupted coming from providers established in Spain, and for this purpose the collaboration of intermediary service providers may be required, directly or through a reasoned request to the Ministry of Science and Technology, which will suspend transmission, data hosting, access to networks telecommunications or the provision of any other equivalent intermediary service they shall carry out.

2. In the adoption and implementation of the measures referred to in the preceding paragraph, the guarantees, rules and procedures laid down in the legal order to protect personal and family privacy rights shall be respected, in any event, to the the protection of personal data, freedom of expression or freedom of information, where such data may be affected.

In all cases in which the Constitution, the rules governing the respective rights and freedoms or those applicable to the different matters confer jurisdiction on the courts to intervene in the the exercise of activities or rights, only the competent judicial authority may take the measures provided for in this Article.

3. The measures referred to in this Article shall be objective, proportionate and non-discriminatory, and shall be taken as a precautionary measure or in accordance with the decisions to be taken, in accordance with the legal administrative procedures. established or provided for in the relevant procedural law.

Article 12. Duty to hold traffic data relating to electronic communications.

1. Operators of electronic communications networks and services, providers of access to telecommunications networks and providers of data-hosting services shall retain the connection and traffic data generated by the electronic communications network. communications established during the provision of a service of the information society for a maximum period of 12 months, in the terms set out in this Article and in its implementing rules.

2. Data which, in compliance with the provisions of the previous paragraph, shall be maintained by operators of electronic communications networks and services and providers of access to telecommunications networks shall be those necessary for the purposes of facilitate the location of the terminal equipment used by the user for the transmission of the information.

Data hosting service providers should retain only those required to identify the source of the hosted data and the time when the service delivery was started.

In no case, the data retention obligation will affect the secrecy of the communications.

Operators of electronic communications networks and services and service providers referred to in this Article may not use data held for purposes other than those referred to in the following paragraph or others that are permitted by law, and must take appropriate security measures to prevent their loss or alteration and unauthorized access to them.

3. The data shall be kept for use in the framework of a criminal investigation or for the safeguarding of public security and national defense, being made available to the Judges or Courts or the Prosecutor's Office that require them. The communication of this data to the Security Forces and Corps shall be made subject to the provisions of the regulations on the protection of personal data.

4. The categories of data to be retained according to the type of service provided, the time limit during which they must be retained in each case within the maximum laid down in this Article, the conditions under which they are to be retained shall be determined. be stored, processed and protected and the manner in which, where appropriate, they must be delivered to the authorised bodies for their application and be destroyed, after the relevant retention period, unless they are necessary for those or other intended purposes in the Law.

SECTION 2. LIABILITY REGIME

Article 13. Responsibility of the providers of the information society services.

1. The service providers of the information society are subject to the general civil, criminal and administrative responsibility established in the legal order, without prejudice to the provisions of this Law.

2. In order to determine the liability of service providers for the exercise of intermediation activities, it shall be as set out in the following Articles.

Article 14. Responsibility of network operators and access providers.

1. Operators of telecommunications networks and providers of access to a telecommunications network providing an intermediary service consisting in transmitting data provided by the addressee of the telecommunications network by a telecommunications network service or to provide access to it shall not be responsible for the information transmitted, unless they have originated the transmission, modified the data or selected the data or the recipients of such data.

The strictly technical manipulation of files hosting the data, which takes place during its transmission, shall not be understood as modification.

2. The transmission and provision of access activities referred to in the previous paragraph include automatic, temporary and temporary storage of the data, provided that it serves exclusively to enable it to be transmitted by the network of telecommunications and its duration does not exceed the time reasonably necessary to do so.

Article 15. Responsibility of service providers who make temporary copies of the data requested by the users.

The providers of an intermediary service who transmit data from a telecommunications network provided by a recipient of the service and, with the sole purpose of making their further transmission more efficient Recipients who request them, store them in their systems automatically, temporarily and temporarily, shall not be liable for the content of that data or for the temporary reproduction thereof, if:

a) Do not modify the information.

b) Allow access to it only to recipients who meet the conditions imposed for this purpose by the recipient whose information is requested.

c) Respect the rules generally accepted and applied by the industry for updating information.

d) Do not interfere with the lawful use of technology generally accepted and employed by the sector, in order to obtain data on the use of information, and (e) Withdraw the information they have stored or do impossible access to it, as soon as they have effective knowledge of:

1. What has been removed from the place of the network in which it was initially located.

2. º That access to it has been made impossible, or 3. º That a court or competent administrative body has ordered to remove it or prevent it from being accessed.

Article 16. Responsibility of the hosting or data storage service providers.

1. Providers of an intermediary service consisting of hosting data provided by the recipient of this service shall not be liable for the information stored at the request of the recipient, provided that:

(a) Have no effective knowledge that the activity or information stored is illicit or that it injures goods or rights of a third party liable for compensation, or (b) If they have, act with diligence to withdraw the data or make access to them impossible.

The service provider shall be understood to have the effective knowledge referred to in subparagraph (a) where a competent body has declared the ilicitude of the data, ordered its withdrawal or that access to the data is impossible. (i) the existence of the injury was declared and the service provider knew the relevant decision, without prejudice to the procedures for the detection and removal of the content which the providers apply under voluntary agreements and of other means of effective knowledge that could be established.

2. The exemption from liability provided for in paragraph 1 shall not operate in the event that the recipient of the service acts under the direction, authority or control of the service provider.

Article 17. Responsibility of service providers providing links to content or search tools.

1. Providers of information society services that provide links to other content or include in their own directories or content search tools will not be responsible for the information they address to the recipients of their services, provided that:

(a) Have no effective knowledge that the activity or information to which they refer or recommend is unlawful or that it injures goods or rights of a third party liable for compensation, or (b) If they have, act with due diligence to delete or disable the corresponding link.

The service provider shall be understood to have the effective knowledge referred to in subparagraph (a) where a competent body has declared the ilicitude of the data, ordered its withdrawal or that access to the data is impossible. (i) the existence of the injury was declared and the service provider knew the relevant decision, without prejudice to the procedures for the detection and removal of the content which the providers apply under voluntary agreements and of other means of effective knowledge that could be established.

2. The exemption from liability provided for in paragraph 1 shall not operate in the event that the recipient of the service acts under the direction, authority or control of the provider that facilitates the location of such content.

CHAPTER III

Codes of Conduct

Article 18. Codes of conduct.

1. Public administrations will, through coordination and advice, promote the development and implementation of voluntary codes of conduct by corporations, trade associations or organizations, professionals and consumers, in the matters covered by this Law. The General Administration of the State shall, in particular, encourage the development of codes of conduct at Community or international level.

The codes of conduct may address, in particular, the procedures for the detection and removal of illegal content and the protection of the addressees in relation to the electronic transmission of commercial communications not requested, as well as on the extra-judicial procedures for the settlement of disputes arising from the provision of the information society services.

2. In the preparation of such codes, the participation of consumer and user associations and representative organisations of persons with physical or mental disabilities shall be ensured when they affect their respective interests.

When their content may affect them, codes of conduct shall take particular account of the protection of minors and human dignity, and specific codes on these matters may be drawn up, if necessary.

Public authorities will encourage, in particular, the establishment of common criteria agreed by the industry for the classification and labelling of content and the accession of providers to them.

3. The codes of conduct referred to in the preceding paragraphs shall be accessible by electronic means. Its translation into other official languages in the European Community shall be encouraged in order to disseminate them further.

TITLE III

Commercial communications by electronic means

Article 19. Legal regime.

1. Commercial communications and promotional offers shall, in addition to this Law, be governed by their own rules and the laws in force in commercial and advertising matters.

2. In any case, the Organic Law 15/1999, of 13 December, of Protection of Personal Data, and its development regulations, in particular, regarding the obtaining of personal data, will be applicable, information to the and the creation and maintenance of personal data files.

Article 20. Information required on commercial communications, promotional offers and competitions.

1. Commercial communications by electronic means shall be clearly identifiable as such and shall indicate the natural or legal person on behalf of which they are made.

In the case where they occur via e-mail or other equivalent electronic means of communication, the word "advertising" shall be included at the beginning of the message.

2. In the case of promotional offers, such as those that include discounts, prizes and gifts, and promotional contests or games, prior to the corresponding authorization, must be assured, in addition to the fulfilment of the requirements set in the previous paragraph and the rules on the management of trade, which are clearly identified as such and that the conditions of access and, where appropriate, participation are expressed in a clear and unequivocal manner.

Article 21. Prohibition of unsolicited commercial communications by electronic mail or equivalent electronic means of communication.

The sending of advertising or promotional communications by e-mail or other equivalent electronic means of communication that has not previously been requested or expressly authorized by the recipients of the same.

Article 22. Rights of commercial communications recipients.

1. If the recipient of services should provide his/her e-mail address during the recruitment or subscription process to any service and the provider intends to use it subsequently for the sending of commercial communications, must inform his client of that intention and request his consent for the receipt of such communications, before the end of the procurement procedure.

2. The addressee may at any time revoke the consent given to the receipt of commercial communications with the simple notification of his will to the sender.

To this end, service providers must enable simple and free procedures so that the recipients of services can revoke the consent they have provided.

They should also provide information accessible by electronic means on such procedures.

TITLE IV

Hiring by electronic means

Article 23. Validity and effectiveness of contracts concluded by electronic means.

1. Contracts concluded by electronic means shall produce all the effects provided for by the legal system, where the consent and other requirements necessary for their validity are met.

Electronic contracts shall be governed by the provisions of this Title, by the Civil and Trade Codes and by the other civil or commercial rules on contracts, in particular, the rules of consumer protection and users and ordering of the business activity.

2. In order for the conclusion of contracts to be valid electronically, the parties ' agreement on the use of electronic means will not be necessary.

3. Provided that the Law requires that the contract or any information related to the contract be written in writing, this requirement shall be deemed to be satisfied if the contract or information is contained in an electronic medium.

4. The provisions of this Title shall not apply to contracts relating to family law and succession.

Contracts, business or legal acts in which the Law determines for its validity or for the production of certain effects the form of public documentary, or which require the intervention of courts, Notaries, property registrars and commercial authorities or public authorities shall be governed by their specific legislation.

Article 24. Proof of contracts concluded by electronic means.

1. Proof of the conclusion of an electronic contract and of the obligations arising from it shall be subject to the general rules of the legal order and, where appropriate, to the provisions of the electronic signature legislation.

2. In any event, electronic support on the record of a contract entered into by electronic means shall be admissible on trial as a documentary evidence.

Article 25. Trust third-party intervention.

1. The parties may agree that a third party files the declarations of intent of the electronic contracts and that it records the date and time when the electronic contracts have taken place. The intervention of such third parties shall not alter or replace the functions which it is necessary to carry out to persons entitled under the law to give public faith.

2. The third party shall file in computerised form the statements which have been made by telematic means between the parties for the stipulated time which shall in no case be less than five years.

Article 26. Applicable law.

For the purposes of determining the law applicable to electronic contracts, the provisions of private international law of the Spanish legal order will be in place, and should be taken into consideration for their application. established in Articles 2 and 3 of this Law.

Article 27. Obligations prior to the commencement of the procurement procedure.

1. In addition to compliance with the information requirements laid down in the current legislation, the service provider of the information society carrying out electronic procurement activities shall be required to report to the addressee in a clear, comprehensible and unambiguous manner, and before initiating the procurement procedure, on the following:

(a) The various formalities to be followed to conclude the contract.

b) If the provider is to archive the electronic document in which the contract is formalized and if it is to be accessible.

(c) The technical means at your disposal to identify and correct errors in the introduction of the data, and (d) The language or languages in which the contract may be concluded.

2. The provider shall not have the obligation to provide the information referred to in the previous paragraph when:

(a) Both Contracting Parties so agree and none of them have the consideration of a consumer, or (b) The contract has been concluded exclusively by means of an exchange of e-mail or other electronic communication equivalent, where these means are not used for the sole purpose of circumventing compliance with such an obligation.

3. Without prejudice to the provisions of specific legislation, tenders or proposals for procurement by electronic means shall be valid for the period fixed by the offeror or, failing that, for as long as they remain accessible. to the recipients of the service.

4. Prior to the commencement of the procurement procedure, the service provider shall make available to the addressee the general conditions to which the contract is to be subject, in such a way as to enable them to be stored and reproduced by the recipient.

Article 28. Information after the contract is concluded.

1. The offeror is obliged to confirm receipt of the acceptance to which he made it for any of the following means:

(a) The sending of an acknowledgement of receipt by e-mail or other electronic means of communication equivalent to the address which the acceptor has indicated, within 24 hours of receipt of the acceptance, or (b) confirmation, by means equivalent to that used in the procurement procedure, of the acceptance received, as soon as the acceptor has completed such a procedure, provided that the confirmation can be filed by its recipient.

In cases where the obligation of confirmation corresponds to a recipient of services, the provider shall facilitate compliance with that obligation, making available to the recipient any of the means indicated in this paragraph. This obligation shall be enforceable whether the confirmation should be addressed to the provider himself or to another recipient.

2. It shall be understood that acceptance and confirmation have been received when the parties to which they are addressed may be aware of this.

In the event that the acceptance of the acceptance is confirmed by acknowledgement of receipt, it shall be presumed that its addressee may have the said constancy since the receipt of the acceptance has been stored on the server in which it is discharged. e-mail account, or on the device used for receiving communications.

3. It will not be necessary to confirm receipt of an offer acceptance when:

(a) Both Contracting Parties so agree and none of them have the consideration of a consumer, or (b) The contract has been concluded exclusively by means of an exchange of e-mail or other electronic communication equivalent, where these means are not used for the sole purpose of circumventing compliance with such an obligation.

Article 29. Place of conclusion of the contract.

Contracts entered into by electronic means in which a consumer is involved shall be presumed to be concluded at the place where the consumer is habitually resident.

Electronic contracts between employers or professionals, in the absence of a pact between the parties, shall be presumed to be concluded at the place where the service provider is established.

TITLE V

Judicial and extrajudicial settlement of conflicts

CHAPTER I

Cessation action

Article 30. Cessation action.

1. Against conduct contrary to this Law which damages the collective or diffuse interests of consumers, the action of cessation may be brought.

2. The cessation action is directed to obtain a judgment that condemns the defendant to cease in the conduct contrary to this Law and to prohibit its future reiteration. The action may also be exercised in order to prohibit the conduct of a conduct where the conduct has been completed at the time of the exercise of the action, if there are sufficient indications to fear that it will be repeated imminently.

3. The cessation action shall be exercised in accordance with the provisions of the Civil Procedure Act for this class of actions.

Article 31. Active legitimation.

They are legitimized to interject the cessation action:

(a) Natural or legal persons holding a legitimate right or interest.

b) The groups of consumers or users affected, in the cases and conditions provided for in the Civil Procedure Act.

(c) Consumer and user associations meeting the requirements laid down in Law 26/1984 of 19 July, General for the Defence of Consumers and Users, or, where appropriate, in the autonomous legislation on consumer protection. consumer protection.

d) The Fiscal Ministry.

(e) The National Institute of Consumption and the corresponding bodies of the Autonomous Communities and of the Local Authorities responsible for consumer protection.

(f) entities in other Member States of the European Union constituted for the protection of the collective or diffuse interests of consumers who are entitled to the European Commission by listing them on the list published for that purpose in the Official Journal of the European Communities.

The Judges and Courts shall accept such a list as evidence of the ability of the entity to be a party, without prejudice to examining whether the purpose of the entity and the interests involved legitimize the exercise of the action.

CHAPTER II

Extra-conflict resolution of conflicts

Article 32. Extra-judicial conflict resolution.

1. The service provider and the recipient of the information society may submit their conflicts to the arbitrations provided for in the legislation on the arbitration and defence of consumers and users and to the procedures for the resolution of such disputes. extra-judicial conflicts that are established by codes of conduct or other instruments of self-regulation.

2. In the out-of-court dispute settlement procedures referred to in the previous paragraph, electronic means may be used, in terms of their specific rules.

TITLE VI

Information and control

Article 33. Information to recipients and service providers.

The recipients and service providers of the information society may contact the Ministries of Science and Technology, Justice, the Economy and Health and Consumer Affairs, and the bodies to determine the respective departments. Autonomous Communities and Local Entities, for:

(a) Get general information about your contractual rights and obligations under the rules applicable to electronic procurement.

b) Reporting on judicial and out-of-court settlement procedures, and c) Getting data from authorities, associations or organisations that can provide additional information or assistance to them practice.

Communication with such organs may be made by electronic means.

Article 34. Communication of relevant resolutions.

1. The General Council of the Judiciary shall forward to the Ministry of Justice, in the form and at the intervals agreed by the Convention between the two organs, all judicial decisions containing statements of relevance to the validity of the and the effectiveness of contracts concluded by electronic means, on their use as evidence in judgment, or on the rights, obligations and rules of liability of the addressees and the service providers of the company information.

2. The arbitral bodies and the persons responsible for the other procedures for the out-of-court settlement of disputes referred to in Article 32.1 shall communicate to the Ministry of Justice the award or decisions which are of importance for the provision of the services of the information society and electronic commerce in accordance with the criteria set out in the previous paragraph.

3. In the communication of the resolutions, decisions and decisions referred to in this Article, the necessary precautions shall be taken to safeguard the right to privacy and the protection of the personal data of persons identified in the them.

4. The Ministry of Justice shall transmit to the European Commission and shall provide the access of any data subject to the information received in accordance with this Article.

Article 35. Monitoring and control.

1. The Ministry of Science and Technology will monitor compliance by the service providers of the information society with the obligations set out in this Law and its development provisions, as far as services are concerned. of the information society itself.

However, references to the competent bodies contained in Articles 8, 10, 11, 15, 16, 17 and 38 shall be construed as references to the courts or administrative bodies which, in each case, are in accordance with the matter.

2. The Ministry of Science and Technology may carry out the inspection activities that are necessary for the exercise of its control function.

Officials attached to the Ministry of Science and Technology carrying out the inspection referred to in the previous paragraph shall be considered as public authorities in the performance of their duties.

3. In any event, and notwithstanding the provisions of the preceding paragraph, where the conduct carried out by the service providers of the information society is subject, by reason of the matter or the type of entity concerned, to specific areas of competence, protection or supervision, irrespective of whether they are carried out using telematic or electronic means and techniques, the bodies to which the sectoral legislation confers control powers, Specific supervision, inspection or guardianship shall be carried out by the relevant functions.

Article 36. Duty of collaboration.

1. The service providers of the information society have an obligation to provide the Ministry of Science and Technology and the other bodies referred to in the previous Article with all the information and collaboration needed for the information society. exercise of their functions.

Likewise, they must allow their agents or the inspector staff to access their facilities and to consult any documentation relevant to the control activity in question, where applicable, where appropriate. Article 8.5 of Law 29/1998 of July 13, the regulator of the Jurisdiction-Administrative Jurisdiction.

2. Where, as a result of an inspector's performance, knowledge of facts which may be the constitutive of offences established in other laws, state or regional, shall be taken into account, the bodies or bodies shall be informed of such offences. competent for their supervision and sanction.

TITLE VII

Violations and penalties

Article 37. Responsible.

Information society service providers are subject to the sanctioning regime set out in this Title when this Law applies to them.

Article 38. Violations.

1. Infringements of the provisions of this Law shall be classified as very serious, serious and minor.

2. These are very serious violations:

(a) Failure to comply with the orders given pursuant to Article 8 in those cases where they have been given by an administrative body.

(b) Failure to comply with the obligation to suspend transmission, data accommodation, access to the network or the provision of any other equivalent intermediary service, where a competent administrative body is required to do so; order, pursuant to Article 11.

(c) Failure to comply with the obligation to retain traffic data generated by communications established during the provision of a service of the information society, as provided for in Article 12.

(d) The use of the retained data, in compliance with Article 12, for purposes other than those mentioned in it.

3. These are serious violations:

(a) Failure to comply with paragraphs (a) and (f) of Article 10.1.

(b) Mass sending of commercial communications by e-mail or other electronic means of communication equivalent to recipients who have not expressly authorized or requested their referral, or the dispatch, within a period of time. year, of more than three commercial communications by the means referred to by the same recipient, where the recipient has not requested or authorised his referral.

(c) Not to make available to the recipient of the service the general terms and conditions to which the contract is subject, in the form provided for in Article 27.

(d) The usual non-compliance with the obligation to confirm receipt of an acceptance, where the exclusion has not been agreed or the contract has been concluded with a consumer.

e) The resistance, excuse or refusal to the inspector's performance of the organs empowered to carry it out according to this Law.

4. They are minor infractions:

(a) The lack of communication to the public registry in which they are registered, in accordance with Article 9, of the name or domain names or addresses of the Internet that they employ for the provision of services of the information society.

(b) Not to report in the manner prescribed by Article 10.1 on the aspects referred to in paragraphs (b), (c), (d), (e) and (g) thereof.

(c) Non-compliance with the provisions of Article 20 for commercial communications, promotional offers and competitions.

(d) The sending of commercial communications by e-mail or other electronic means of communication equivalent to recipients who have not expressly requested or authorised their referral, where it does not constitute an infringement severe.

e) Not to provide the information referred to in Article 27.1, where the parties have not agreed to their exclusion or the addressee is a consumer.

(f) Failure to comply with the obligation to confirm receipt of a request in accordance with Article 28, where the exclusion of the request has not been agreed or the contract has been concluded with a consumer, unless constitutes a serious infringement.

Article 39. Penalties.

1. For the commission of the offences referred to in the previous article, the following penalties shall be imposed:

a) For the commission of very serious infractions, fine of 150,001 up to 600,000 euros.

The reiteration within three years of two or more very serious infringements, sanctioned on a firm basis, may give rise, depending on the circumstances, to the ban on action in Spain, for a period of time. maximum of two years.

b) For the commission of serious infractions, fine of 30,001 up to 150,000 euros.

c) For the commission of minor infractions, fine up to 30,000 euros.

2. Serious and very serious infringements may lead to the publication, at the cost of the penalty, of the sanction resolution in the "Official State Gazette" or in the official journal of the public administration which, if appropriate, would have imposed the sanction; in two newspapers whose field of dissemination coincides with the action of the Public Administration or on the homepage of the provider's website, once the latter has a firm character.

For the imposition of this sanction, the social impact of the offence committed, the number of users or contracts affected, and the seriousness of the offence shall be considered.

3. Where the offences punishable under this Law have been committed by service providers established in States which are not members of the European Union or the European Economic Area, the body which would have been The tax penalty may be imposed by the intermediary service providers who take the necessary measures to prevent access from Spain to the services offered by those services for a maximum period of two years in the case of very serious infringements, one year in the case of serious infringements and six months in the case of minor offences.

Article 40. Graduation of the amount of the penalties.

The amount of fines to be imposed will be graduated according to the following criteria:

a) The existence of intentionality.

b) Time limit during which the violation has been committed.

c) The recidivism by commission of infractions of the same nature, when it has been declared by firm resolution.

d) The nature and extent of the damage caused.

e) The benefits obtained by the breach.

f) The billing volume to affect the committed violation.

Article 41. Measures of a provisional nature.

1. In the case of penalties for serious or very serious infringements, it may be adopted, in accordance with Law No 30/1992 of 26 November 1992, on the legal system of public administrations and the common administrative procedure, and their rules of (a) the measures of a provisional nature provided for in those rules which are deemed necessary to ensure the effectiveness of the decision which is definitively adopted, the good end of the procedure, the avoidance of the effects of the infringement and the requirements of the general interest.

In particular, the following may be agreed:

(a) Temporary suspension of the activity of the service provider and, where appropriate, provisional closure of its establishments.

b) Precinct, deposit or seizure of records, media and computer files and documents in general, as well as computer equipment and equipment of all types.

c) To warn the public of the existence of any infringing conduct and the opening of the sanctioning file concerned, as well as of the measures taken to cease such conduct.

2. In the adoption and implementation of the measures referred to in the preceding paragraph, the guarantees, rules and procedures laid down in the legal order to protect personal and family privacy rights shall be respected, in any event, to the the protection of personal data, freedom of expression or freedom of information, where such data may be affected.

In all cases in which the Constitution, the rules governing the respective rights and freedoms or those applicable to the different matters confer jurisdiction on the courts to intervene in the the exercise of activities or rights, only the competent judicial authority may take the measures provided for in this Article.

3. In any event, the principle of proportionality of the measure shall be respected with the objectives to be achieved in each case.

4. In cases of urgency and for the immediate protection of the interests involved, the provisional measures provided for in this Article may be agreed prior to the initiation of the sanctioning dossier. The measures shall be confirmed, modified or lifted in the initiation agreement of the procedure, which shall be carried out within 15 days of its adoption, which may be the subject of the action.

In any event, such measures shall be without effect if the sanctioning procedure is not initiated within that period or where the initiation agreement does not contain an express statement about them.

Article 42. Periodic penalty payment.

The administrative body responsible for resolving the sanctioning procedure may impose periodic penalty payments in the amount not exceeding EUR 6 000 for each day that elapses without complying with the provisional measures that would have taken place. agreed.

Article 43. Sanctioning competition.

1. The imposition of penalties for failure to comply with the provisions of this Law will, in the case of very serious infringements, correspond to the Minister of Science and Technology, and in the case of serious and minor infringements, to the Secretary of State for Telecommunications and for the Information Society.

notwithstanding the foregoing, the imposition of penalties for failure to comply with the decisions given by the competent bodies in the light of the relevant matter or entity referred to in paragraphs (a) and (b) of Article 38.2 of this Law shall correspond to the organ that dictated the unfulfilled resolution.

2. The sanctioning power regulated in this Law shall be exercised in accordance with the provisions of Law 30/1992, of 26 November, of the Legal Regime of Public Administrations and of the Common Administrative Procedure, and in its rules

Article 44. Concurrency of violations and penalties.

1. The sanctioning authority referred to in this Law shall not be exercised when criminal sanctions have been imposed, in cases where the identity of the subject is assessed, made and substantiated.

However, when criminal proceedings are being processed for the same facts or for others whose separation of the penalties under this Law is rationally impossible, the procedure will be suspended with respect to the until the judicial authority has made a firm statement.

Resumed the file, if any, the resolution to be delivered shall respect the facts stated in the judgment.

2. The imposition of a penalty provided for in this Law shall not prevent the processing and resolution of another sanctioning procedure by the competent bodies or bodies in each case where the offending conduct has been committed using techniques and telematic or electronic means and is classified in another law, provided that there is no identity of the protected legal asset.

3. Penalties shall not be imposed in accordance with the provisions of this Law where the facts of the infringement are also punishable by other provisions in the sectoral rules to which the service provider is subject and there is an identity of the good protected legal.

When, as a consequence of a sanctioning performance, knowledge of facts that could be the constitutive of offences established in other laws, the same shall be given to the competent organs or bodies for monitoring and sanction.

Article 45. Prescription.

Very serious infractions will be prescribed at three years, the serious ones at two years and the mild ones at six months; the penalties imposed for very serious faults will be prescribed at three years, those imposed for serious misconduct to the two years and those imposed for minor faults a year.

Additional disposition first. Meaning of the terms used by this Act.

For the purposes of this Law, the terms defined in the Annex shall have the meaning assigned to them.

Additional provision second. Medicinal products and medical devices.

The provision of information society services related to medicinal products and medical devices shall be governed by the provisions of their specific legislation.

Additional provision third. Consumer Arbitration System.

The provider and the recipient of the information society services may submit their conflicts to the consumer arbitration, by means of the accession of those to the Arbitration System of Consumption.

The National Arbitration Board of Consumption and those of lower territorial scope, authorized for this by the National Institute of Consumption, will be able to address the conflicts raised by the consumers according to the The provisions of Royal Decree 636/1993 of 3 May, which regulates the Arbitration System of Consumption, by means of telematic means.

Additional provision fourth. Amendment of the Civil and Trade Codes.

One. Article 1.262 of the Civil Code is amended as follows:

" The consent is expressed by the tender of the offer and the acceptance of the thing and the cause to constitute the contract.

In places other than the one that made the offer and the one who accepted it, there is consent since the offeror knows the acceptance or since, having sent the acceptor, he cannot ignore it without missing the good faith. The contract, in such a case, is presumed to be held at the place where the offer was made.

In contracts entered into by automatic devices, consent has been granted since acceptance is manifest. "

Two. Article 54 of the Trade Code is amended, which is worded as follows:

" In places other than the one that made the offer and the one who accepted it, there is consent from the offer that the offeror knows the acceptance or from the fact that, having sent the acceptor, he cannot ignore it without lacking the good faith. The contract, in such a case, is presumed to be held at the place where the offer was made.

In contracts entered into by automatic devices, consent has been granted since acceptance is manifest. "

Additional provision fifth. Accessibility for people with disabilities and older people to information provided by electronic means.

One. Public administrations shall take the necessary measures to ensure that the information available on their respective websites can be accessible to persons with disabilities and the elderly, in accordance with the criteria for accessibility to generally recognised content, before 31 December 2005.

You may also require that Internet pages whose design or maintenance finance the above-mentioned accessibility criteria apply.

Two. It will also promote the adoption of accessibility standards by service providers and equipment manufacturers and "software" to facilitate access for people with disabilities or older people to digital content.

Additional provision sixth. Domain name assignment system under ". is".

One. This provision regulates, in compliance with the provisions of the Additional Provision of Law 17/2001 of 7 December of 7 December, the inspiring principles of the system for the allocation of domain names under the country code corresponding to Spain ". is".

Two. The business public entity Red.es is the allocation authority, which corresponds to the management of the registry of Internet domain names under the ". is", according to the provisions of the additional provision sixth of Law 11/1998, of 24 of April, General Telecommunications.

Three. The assignment of Internet domain names under the ". is" will be done in accordance with the criteria set forth in this provision, in the National Internet Domain Name Plan, in the other specific rules that are dictated in your development by the allocation authority and, in so far as they are compatible with them, with generally applied practices and recommendations emanating from international entities and bodies carrying out activities related to the management of the Internet domain name system.

The criteria for assigning domain names under the ". is" shall ensure an appropriate balance between the confidence and legal certainty required for the development of e-commerce and other services and activities by electronic means, and the flexibility and agility required to enable the satisfaction of the demand for the assignment of domain names under the ". is", thus contributing to the development of the information society in Spain.

Differentiated spaces may be created under the ". is", which will facilitate the identification of the content that they host according to their owner or the type of activity they perform. Among others, they will be able to be created indicative of education, entertainment and the appropriate moral development of childhood and youth. These third-level domain names will be assigned in terms that are set in the National Internet Domain Name Plan.

Four. They may request the assignment of domain names under the ". is", in the terms that are provided in the National Internet Domain Name Plan, all persons or entities, with or without legal personality, that have interests or maintain links with Spain, provided that they meet the other requirements for obtaining a domain name.

The domain names under the ". is" will be assigned to the first applicant who is entitled to it, without it being possible to grant, in general, a preferential right to obtain or use a domain name to the holders of certain rights.

The assignment of a domain name gives the holder the right to use it, which will be conditional upon the fulfilment of the requirements that are established in each case, as well as its maintenance in time. The verification by the authority of the assignment of the non-compliance with these requirements will result in the cancellation of the domain name, prior to the processing of the procedure that in each case will be determined and that must guarantee the hearing of the interested parties.

The beneficiaries of a domain name under the ". is" must respect the technical rules and conditions that can be set by the allocation authority for the proper operation of the domain name system under the ". is".

The responsibility for the correct use of a domain name in accordance with laws, as well as respect for intellectual or industrial property rights, corresponds to the person or organization for which it has been registered. that domain name, in the terms provided for in this Law. The allocation authority shall proceed to the cancellation of those domain names whose holders infringe those rights or conditions, provided that it is ordered in the relevant judicial decision, without prejudice to the provisions of the application of paragraph eight of this additional provision.

Five. The National Internet Domain Name Plan will establish appropriate mechanisms to prevent the abusive or speculative registration of domain names, the misuse of terms of generic meaning or toponyms and, in general, to prevent conflicts that can be derived from assigning domain names.

The Plan will also include the necessary channels to minimize the risk of error or confusion for users regarding the ownership of domain names.

For these purposes, the business public entity Red.es will establish the necessary coordination with the Spanish public registers. Their holders shall provide access and consultation to such public records, which shall in any case be free of charge to the institution.

Six. The allocation of domain names will be carried out by telematic means to ensure the agility and reliability of the registration procedures.

The submission of applications and the practice of notifications shall be made by electronic means, except in cases where the allocation procedures and other operations associated with the registration of names are provided for. domain.

Registrar agents, as intermediaries in the procedures related to the registration of domain names, may provide ancillary services for the allocation and renewal of such services, in accordance with the requirements and conditions to be determined by the allocation authority, which shall in any event ensure that the principle of free competition between such agents is respected.

Seven. The National Internet Domain Name Plan will be approved by the Order of the Minister of Science and Technology, on a proposal from the business public entity Red.es.

The Plan will be completed with the procedures for allocation and other operations associated with the registration of domain names and Internet addresses established by the President of the business public entity Red.es, according to as provided for in the additional 18th of Law 14/2000 of 29 December, of Tax, Administrative and Social Order Measures.

Eight. In terms of the applicable provisions, the allocation authority may establish a system of out-of-court settlement of disputes over the use of domain names, including those relating to the rights of the industrial property. This system, which shall ensure the appropriate procedural safeguards for the parties concerned, shall apply without prejudice to any legal proceedings which the parties may exercise.

Nine. In order to promote the development of e-government, the business public entity Red.es may provide the service of telematic administrative notifications and provide evidence of the date and time of its receipt.

Single transient arrangement. Annotation on the corresponding public records of the domain names granted before the entry into force of this Act.

Service providers who, upon the entry into force of this Law, have already come using one or more domain names or Internet addresses will have to request the annotation of at least one of them in the public register in which shall be entered for the purposes of establishing or advertising within a period of one year from the date of entry into force.

Final disposition first. Amendment of Article 37 of Law 11/1998 of 24 April, General Telecommunications.

Paragraph (a) of Article 37 (1) of Law 11/1998 of 24 April, General Telecommunications, is amended, which is worded as follows:

" (a) That citizens may receive connection to the fixed public telephone network and access the provision of the fixed telephone service available to the public. The connection should provide the user with the possibility to issue and receive national and international calls and allow the transmission of voice, fax and data at a sufficient speed to access the Internet in a functional way.

For these purposes, the sufficient speed referred to in the preceding paragraph shall be deemed to be the rate used across the board to access the Internet by subscribers to the fixed telephone service available to the public with connection to the network by means of copper and modem pairs for vowel. "

Final disposition second. Amendment of the additional provision, sixth of Law 11/1998, of 24 April, General of Telecommunications.

Paragraph 10 of the sixth provision of Law 11/1998 is amended, of 24 April, General de

Telecommunications, which will be redacted as follows:

" 10. Rate by allocation of limited resource of domain names and Internet addresses.

a) Taxable.

The taxable fact of the charge for the allocation of domain names and addresses of the Internet will be constituted by the realization by the business public entity Red.es of the activities necessary for the assignment and renewal of domain names and Internet addresses under the country code for Spain (.es).

b) Passive subjects.

Applicants for the assignment or renewal of Internet names and addresses will be subject to the fee.

c) Cuantia.

The amount of the fee will be unique for each name or address whose assignment or renewal is requested. In no case shall the assignment or renewal of the name or address be carried out without the payment of the fee being made in advance.

Only the number and identity of the elements and quantification criteria on the basis of which the required quotas are determined may be modified by law.

For the purposes set out in the preceding paragraph, elements and criteria of quantification of the amount payable for the initial annual allocation of the domain names or addresses of the Internet are considered the assigned number, the cost of the verification and verification activities of the applications for allocation, as well as the level at which the allocation takes place and, in the case of annual renewal in the successive years, the cost of the maintenance of the allocation and of the check and data update activities.

It will also address the number of assigned Internet names or addresses and the performance through registrants to realize the rate.

The establishment and modification of the amounts resulting from the application of the elements and quantification criteria referred to in the preceding paragraphs may be carried out by Ministerial Order.

By way of derogation from the foregoing paragraphs of this paragraph, in the case of exceptional circumstances in which this is provided for in the National Internet Domain Name Plan and in the terms set out therein, on the basis of the special market value of the use of certain names and addresses, the initial annual allocation amount may be replaced by a tender procedure in which an initial reference value is fixed estimate. If the award value of the tender results in excess of that reference value, that value shall be the amount of the fee. In cases where this tender procedure is followed, the Ministry of Science and Technology will require, prior to its call, the competent authority for the Registry of Domain Names to suspend the award. of the names and addresses which it considers to be affected by its special economic value. The corresponding base specification, which shall be drawn up, taking into account the provisions of the National Internet Domain Name Plan, the requirements, conditions and conditions applicable to the invitation to tender, shall be adopted.

d) Devengo.

The fee shall be payable on the date on which the application for the assignment or renewal of the Internet names or addresses is made, which shall not be processed without the approval of the the corresponding payment has been made.

e) Exaction and management collection.

The levy of the fee will be produced from the allocation of its management to the business public entity Red.es and the determination of the procedure for its liquidation and payment, by ministerial order.

Statement models, deadlines, and rates of payment of the fee shall be approved by resolution of the business public entity Red.es.

The amount of income earned by this fee will be used to finance the expenses of the business public entity Red.es for the activities performed in the performance of the functions assigned to it in the paragraphs (a), (b), (c) and (d) of paragraph 4 of this provision, where applicable, the surplus in the public treasury, in accordance with the proportion and amount to be determined by joint resolution of the Secretaries of State for Budgets and Expenditure; and of Telecommunications and the Information Society, on the proposal of the latter. "

Final disposition third. Addition of a new transitional provision to Law 11/1998 of 24 April, General Telecommunications.

It is added to Law 11/1998, of 24 April, General of Telecommunications, a new transitional provision twelfth, with the following wording:

" Transient disposition twelfth. Criteria for the development of the technology update plan for the fixed public telephone network access network.

Within a maximum of five months from the entry into force of this provision, the operator designated for the provision of universal service shall submit to the Ministry of Science and Technology for approval within the period of a month, after a report by the Telecommunications Market Committee, a detailed action plan to ensure that the connections to the public telephone network make it possible for their subscribers to have functional access to the Internet and, in particular, to those connected by Cell Access Rural Telephony (TRAC).

The plan development will be subject to the following conditions:

a) It will include efficient technological solutions available on the market to ensure the right of users to have, upon request from the approval of the plan, the possibility of functional Internet access in the maximum period of 60 days from the date of such application in the areas with coverage. These technological solutions should provide for their medium-term evolution towards broadband speeds without necessarily leading to their replacement.

(b) The implementation in the access network of the technological solutions referred to in paragraph (a) shall reach the subscribers to the fixed telephone service available to the public which, at the date of approval of the plan, does not have the possibility of functional access to the Internet, according to the following timetable:

1. º At least 30 per 100 before June 30, 2003.

2. º At least 70 per 100 before December 31, 2003.

3. º 100 per 100 before December 31, 2004.

In any case, this implementation will reach at least 50 per 100 of the above mentioned subscribers in each of the Autonomous Communities by 31 December 2003.

(c) The deployment referred to in paragraph (b) shall be prioritized in the action plan in accordance with the highest density of affected subscribers.

(d) For the purposes of the above paragraphs and where necessary, the operator designated for the provision of the universal service may conclude with other operators holding domain concessions. public radio, contracts for the transfer of rights of use of the frequency bands necessary for the fulfilment of the objectives set out in this provision. Such contracts shall be subject to prior approval by the Ministry of Science and Technology, which may lay down the conditions for safeguarding the public interest it deems necessary. "

Final disposition fourth. Amendment of the single repeal of Law 11/1998 of 24 April, General Telecommunications.

The last paragraph of the unique repeal of Law 11/1998 of 24 April, General Telecommunications, is amended, which is worded as follows:

" Similarly, all other provisions of equal or lower rank to this Law shall be repealed shall be contrary to the provisions of this Law and, in particular, to the provisions of Article 37.1. data transmission. "

Final disposition fifth. Adequacy of regulatory regulation on telephone or electronic procurement with general conditions to this Law.

The Government, within one year, will amend Royal Decree 1906/1999 of 17 December, regulating telephone or electronic contracting with general conditions under the development of Article 5.3 of Law 7/1998, April 13, on general conditions of recruitment, to adapt their content to the provisions of this Law.

In this amendment, the Government shall take particular account of the need to facilitate the actual use of electronic contracts, in accordance with the mandate referred to in Article 9.1 of Directive 2000 /31/EC.

Final disposition sixth. Constitutional foundation.

This Law is issued under the terms of Article 149.1.6., 8. and 21. of the Constitution, without prejudice to the powers of the Autonomous Communities.

Final disposition seventh. Enabling the Government.

The Government is enabled to develop by Regulation as provided for in this Law.

Final disposition octave. Flag of adherence to codes of conduct incorporating certain guarantees.

Within one year of the entry into force of this Law, the Government will approve a flag to identify service providers who respect codes of conduct adopted with the participation of the Council of Ministers. Consumers and Users, including, among other things, the accession to the Arbitration System of Consumption or other systems of extrajudicial resolution of conflicts that respect the principles established in the Community rules on systems alternative conflict resolution with consumers, in terms of rules are set out.

Final disposition ninth. Entry into force.

This Law will enter into force three months after its publication in the "Official State Gazette".

However, the additional sixth and final, second, third and fourth provisions of this Law shall enter into force on the day following that of their publication in the "Official Gazette of the State".

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this Law.

Madrid, 11 July 2002.

JOHN CARLOS R.

The President of the Government,

JOSÉ MARÍA AZNAR LÓPEZ

ANNEX

Definitions

For the purposes of this Law, it shall be understood by:

(a) "Information society services" or "services" means any service normally provided for consideration, at a distance, by electronic means and at the individual request of the recipient.

The concept of the service of the information society also includes services which are not paid by their recipients, in so far as they constitute an economic activity for the service provider.

They are the services of the information society, among others and whenever they represent an economic activity, the following:

1. The hiring of goods or services by electronic means.

2. Organization and management of auctions by electronic or market and virtual shopping centers.

3. The management of network purchases by groups of people.

4. The shipping of commercial communications.

5. The provision of information via telematics.

6. The video on demand, as a service in which the user can select through the network, both the desired program and the moment of its supply and reception, and, in general, the distribution of contents upon request individual.

The consideration of information society services shall not be considered by those who do not meet the characteristics referred to in the first subparagraph of this paragraph, and in particular the following:

1. The services provided by voice telephony, fax or telex.

2. The exchange of information by means of electronic mail or other equivalent electronic means of communication for purposes other than the economic activity of those who use it.

3. The television broadcasting services (including quasi-à-la-carte services), referred to in Article 3 (a) of Law 25/1994 of 12 July, incorporating into the Spanish legal order the Directive 89 /552/EEC of the Council of 3 October on the coordination of certain provisions laid down by law, regulation or administrative action in the Member States relating to the pursuit of television broadcasting activities, or any other than the replace.

4. The services of sound broadcasting, and 5. the television teletext and other equivalent services such as the electronic guides of programs offered through the television platforms.

(b) "intermediation service" means the service of the information society by which the provision or use of other information society services or access to information is provided.

The provision of Internet access services, the transmission of data by telecommunications networks, the making of temporary copies of Internet pages requested by users, the provision of Internet access services, accommodation on the data servers themselves, applications or services provided by others and the provision of search, access and data collection or link instruments to other websites.

(c) "service provider" or "provider" means a natural or legal person providing a service of the information society.

(d) "Recipient of the service" or "consignee" means a natural or legal person using, whether or not for professional reasons, a service of the information society.

(e) "Consumer" means a natural or legal person within the terms set out in Article 1 of Law 26/1984 of 19 July, General for the Defence of Consumers and Users.

(f) "commercial communication" means any form of communication aimed at the promotion, direct or indirect, of the image or goods or services of an undertaking, organisation or person carrying out a commercial, industrial activity, craft or professional.

For the purposes of this Law, no commercial communication shall be taken into account for data that directly access the activity of a person, company or organization, such as the domain name or the mailing address. electronic, or communications relating to goods, services or the image offered when they are produced by a third party and without economic consideration.

(g) "regulated profession" means any professional activity which requires the pursuit of a degree for the exercise of such activity, by virtue of laws or regulations.

(h) "contract concluded by electronic means" or "electronic contract" means any contract in which the offer and acceptance are transmitted by electronic data processing and storage equipment connected to a network of telecommunications.

i) "Coordinated normative scope": all requirements applicable to providers of information society services, whether required by this Law or other rules governing the exercise of economic activities by electronic means, or by the general laws applicable to them, and which relate to the following aspects:

1. The beginning of the activity, such as the professional qualifications or qualifications required, the registered advertising, the precise administrative or collective authorizations, the notification schemes to any organ or public or private body, and 2. the exercise of such activity, such as the requirements relating to the service provider's performance, the quality, safety and content of the service, or those affecting advertising and recruitment by electronic means and the liability of the service provider.

The conditions for goods and tangible goods, their delivery and services not provided by electronic means are not included in this area.

(j) "competent body" means any court or administrative body, whether of the General Administration of the State, of the Autonomous Administrations, of the local authorities or of their respective public bodies or bodies dependent, acting in the exercise of legally conferred powers.