The LSSI or “ley de servicios de la sociedad de la información y de comercio electrónico” (law for services in the information age) was initially launched in 2002 as 34/2002 of the 11th of July, and modified several times (last update April 2012).
This law has several objectives, notably to protect consumers during online transactions, and to regulate online advertisements. There are also specific regulations service providers such as, Web hosts, network operators, search engines and Internet service Providers.
Every commercial transaction binds two persons into an implicit or explicit contract. In particular when there is an explicit contract to be agreed by two parties in electronic form, the LSSI provides means for protecting consumers, for example when buying a service or flights.
The contract process has 3 distinct phases:
Initial Phase
During the phase before the transaction, the consumer will gather enough information to identify the provider. Article 10 of the LSSI require the provider to clearly specify on the website his name or corporate denomination, address in Spain and any other means of communication (email, phone number, etc ) in order to enable direct communication with the provider.
If the provider operates within the context of a regulated profession, it has also to include NIF (Fiscal identification number), name of the organisation regulating the profession, collegiate number and where to find the code of conduct of the association.
The products or services involved in the transaction will have to be clearly described including prices and terms and conditions.
Contractual phase
Article 27 of the LSSI, puts an obligation on the provider to inform the end user such information as the process of the agreement, how to identify and correct mistakes when introducing data, and the language of the contract.
These particular obligations are not compulsory when the two parties are not consumers or when the contract has been signed via the exchange of emails or equivalent type of communication.
Regarding the contract content it will have to comply with the TRLGDCU or “general law for the defence of users and consumers” or more precisely Royal decree 1/2007 of the 16th of November. Any clauses in the contract that:
• Binds the contract to the provider
• Limit the rights of users or consumers
• Infringe regulations on competition laws or any other law
• Impose on the part of the consumer disproportionate guarantees
• Determine lack of reciprocity in the contract
It will be considered onerous and therefore null and void. The judge will decide if the core clauses of the contract are deemed onerous and cannot be resolved. In these cases the contract will be deemed unenforceable.
Post contract phase
The consumer has several rights:
1) The right to receive confirmation of the agreement within 24 hours. As previously, this is not necessary when neither party are consumers or when the agreement has been conducted via email or equivalent.
2) The right to cancel the contract within 7 working days after delivery or the moment the service commences. This does not apply for products that can be copied like unprotected electronic goods or software.
3) The right to have a refund if the order or the service fails to materialise within 30 days from the contract agreement. In case of non-compliance for any reasons, the consumer is entitled to receive a refund within 30 days. The consumer is entitled to be compensated with the double of the amount if he does not receive the refund within the 30 days timeframe.
4) If the context of movable assets, there will be a guarantee of two years from the signing of the contract. The guarantee must cover the product in case the characteristics are not matching with what was advertised or what was specified in the contract. In this cases the consumer is entitled to request a replacement a repair or a refund according to articles 125 to 127 of the TRLGDCU.