Transposition of the Cookie Directive into Spanish law

The Spanish “Internet Law” Law on Information Society Services and E-Commerce (Ley 34/2002, known as LSSI) has been amended by Royal Decree 13/2012, March 30, published in the official journal of March 31st to comply with Directive 2009/136/CE, amending Directive 2002/58/EC on Privacy and Electronic Communications.

This amendment, though not being a significant change, merits a description and two comments, one on what has been done and another on what has not been done.

The prohibition of the practice of sending mail for the purposes of direct marketing which disguise or conceal the identity of the sender (article 7 of the Directive) is implemented in article 20.4 of LSSI.

The obligation to provide a valid address where the recipient may request that communications cease (article 7) is implemented in article 21.2 of LSSI.

The “cookie rules” of the Directive (article 5 of the Directive) allowing storage of information or the gaining of access of information already stored in the terminal equipment of a subscriber or user on condition that this subscriber has given its consent, having been provided with clear and comprehensive information, can be found in article 22.2 of LSSI.

Spanish regulation ads that this consent can be obtained automatically if the web browser of the recipient is already configured to give this consent, provided that the recipient has been able to do so expressly.

The amendment that merits the comment is  article 31 LSSI, concerning the persons or legal entities entitled to bring legal proceedings on infringements regarding unsolicited communications.

Following Directive 2009/136, electronic communication service providers wanting to protect their legitimate commercial interests or those of their clients are entitled to a cessation action.

This means that any company whose products have been offered or trademarks used on such communications unsolicited communications are now entitled to such cessation action. Under Spanish civil procedure law (Ley de Enjuiciamiento Civil) this action is brought under the simplest procedure available, known as “juicio verbal”. This is a positive amendment since it widens the scope of natural and legal persons that can bring a cessation action through a simple procedure.

What has not been done relates to administrative sanctions on infringements. According to an established principle on sanction law, the conducts sanctioned have to be described. The issue arises when the prohibitions introduced by this amendment are not introduced in the description of the sanctioned conducts, thus raising the question about whether the infringement on these new prohibitions can be sanctioned.

As usual after an amendment, the debate is open.