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"E-commerce”: The main legal errors to avoid

| News | Privacy, IT & Digital Business

Belén Arribas analyzes the main legal errors to avoid in e-commerce in Confilegal

Confilegal | In recent years the growth of E-Commerce has been exponential and has led to a profound disruption in the retail sector.

“E-commerce" is today one of the pillars of our economy and of the global economy in general. In recent years its growth has been exponential and has led, among others, a deep disruption in the “retail” sector.

Therefore, the legal architecture of an e-commerce cannot be underestimated or improvised.

Companies must be aware of the legal problems and, consequently, reputational problems that can be caused by ill-conceived e-commerce.

Firstly, the legal aspects which, as a matter of necessity, must always be reflected in a series of legal mentions.

These must be contained in different sections of the companies' website.

For example, information about the provider in Company, Who We Are or Imprint, information before hiring, information / confirmation after hiring, data protection policy, among others.

Also, we can not forget some General Conditions of Sale that are suitable.

A common error on the part of companies, including multinational companies, consists of having general conditions of sale translated literally from their original ones, establishing, instead, that they are subject to Spanish law.

They arise in relation to the same relevant questions as whether the company should submit its sales to Spanish law or whether disputes will have to be resolved before the Spanish courts.

Community law adopts the principle of the law of the country of origin, i.e. recruitment may be subject to the legislation of the establishment of the company.

However, if the contract is with consumers, the same directive mentioned above, as well as the Spanish law of electronic commerce require that any rule of the country of the consumer that is more beneficial to him be applicable to the contract.

  • Complexity: state, autonomous and even local laws

In the case of sales to Spanish consumers, the issue is more complex as there are multiple regulations governing retail trade: state and regional laws and even local.

As for the competent courts, if the sale is to consumers, the courts of the consumer's domicile shall in principle be the courts of the consumer's domicile.

Take, for example, the very common case of a foreign company that wishes to sell its products or services to Spain via the Internet with due guarantees. We always recommend that you take adequate care of the legal aspects of this contract.

In particular, to have General Conditions and other legal texts required by law, sufficiently safe and robust.

Compliance "make-up" is of no use: conditions not sufficiently adapted or sometimes directly copied from those of competitors. When dealing with a complaint or denunciation, these could be counterproductive.

Another common error is in relation to data protection regulations. With the General Data Protection Regulation (RGPD) in force -and even earlier- certain websites state that it "is complied with centrally from the matrix," without analysing whether this is sufficient for compliance with the Spanish Law (LOPDGDD) in the matter approved after the Regulation in development of certain aspects of the same and which contains specificities of an imperative nature.

Due to the brevity of this article, we will not analyse the requirements that must meet the general conditions to be applicable to the contract.

We shall simply mention that the provisions shall be clear and simple, and the buyer shall be informed of their existence and provided with a copy thereof. As we mentioned at the beginning of the article, for sale online, they must be published on the web.

In addition, in the case of contracts with consumers, these conditions must also be non-abusive.

When contracting with professionals or traders this term is not applicable, although the aggrieved party may invoke that this stipulation breaks the fair balance between services.

The consequence of not complying with the incorporation requirements is that, not only the performance of the company that provided them may be punishable for breach of law, but also, and even more serious on occasions, is that, in the case of contracts between companies, may end up being applicable not the conditions of the seller but those of the buyer.

As a conclusion and recommendation: prevention. Expert advice from the outset can prevent the company from having to face many legal problems and/or having to defend itself in foreign courts.

Once a complaint has been made by a consumer - whose probability and increase are usually proportional to the success of the website and the increase in sales - a careful response is imposed on the client in order to prevent the company from ending up in court.

This is without prejudice to any reputational damage that may occur and which in the age of social responsibility and online reputation should not be underestimated.

For more information, please contact:

Belén Arribas Sánchez


You could read the complete article in Confilegal.

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