Intellectual Property Law

Protection of Electronic Commerce in the new 'Law for the Defense of Persons in Accessing Goods and Services'

By IBLS Editor

The recently enacted "Law for the Defense of Persons in Accessing Goods and Services" (May 27, 2008), redefines the legal framework for e-commerce operations in Venezuela, especially the issues regarding consumers, as the term is understood in this law.
 
Relevant changes introduced in the legal system include:

New Scope of Application: the law applies not only to transactions between supplier and consumer and/or user (B2C) but also among suppliers (B2B), and provides a detailed list of additional activities to be covered, such as banking and insurance activities. The new scope, including B2B operations, replaced a de-facto situation where a large number of commercial operations (typically banks and oil industry suppliers) were being made throughout the years, and, besides contractual rights, no other protection was mentioned in the law for said transactions. The global trend has been to extend protection and grant same guarantees to suppliers as the ones given to regular consumers.

Language: the law includes a requirement that the information be presented in Spanish, as the official language. Many foreign companies' websites offering goods and service to Venezuelan consumers include terms conditions submitting the transactions to foreign jurisdictions.  They do not need to comply with the language requirement. However, if goods are to be consumed within the Venezuelan territory, the pertinent authority (Indepabis) would, in theory, have powers upon physical installation of said company. The language issue has mainly to do with the fact that only by using (reading and understanding) the official language a user is able to supply the appropriate consent to the on-line operation.
 
Record of Transactions: provides the obligation of keeping records of electronic transactions for 5 years.

Unsolicited email (spam): it expressly forbids the sending of unsolicited email or (Spam); if a person no longer wants to receive information, the supplier must suspend the forwarding within the next 24 hours. Spam was traditionally treated through the Venezuela Computer Crimes Act when third parties alleged manipulation of information systems.
 
Warranties: it includes the possibility of repayment of the purchase through electronic means giving a limit of thirty (30) days for that purpose.
 
Adhesion Agreements: if one thinks that the contracts concluded by the Internet, especially those that are done through electronic commerce with consumers (B2C) cannot be negotiated or changed their terms, then we would be talking about contracts of adhesion, as defined in the new regulation abovementioned.
 
Finally, we should comment that experience shows that the old Institute for Protection of Consumers (Indecu) never supervised operations of traditional B2B e-commerce, at least to assure that websites complied with the requirements of the law. New law may improve this weakness in the consumer protection laws.
 
Penalties: for the non-compliance with the e-commerce new regulations, are between Bf. $4,600 and Bs f. $230.000 and even the temporary closing of the facility for up to 90 days.

Full post as published by IBLS Internet Law Blog on November 03, 2008 (boomark / email).