In the Official Gazette No. 27, volume No. 426, dated February 10th, 2020, was published Decree No. 463, which contains the Law of Electronic Commerce – hereinafter “LCE” -, which has the purpose of establishing a legal framework for electronic relations of a commercial, contractual nature, carried out by digital, electronic, or technologically equivalent means. As stipulated in Decree No. 463, said law had a “vacatio legis” of one year, thus entering in effect on February 10, 2021.
I. SCOPE OF APPLICATION
The LCE is applicable to any type of contractual relationship, of a commercial nature or feasible of economic benefit, entered electronically, digitally, or technologically equivalent, with the exception of the exchange of e-mails for purposes unrelated to the economic activity of those who use it, and the relationships between suppliers and consumers regulated by the Consumer Protection Law.
II. OBLIGATED PARTIES
The LCE shall apply to any natural or juridical person, public or private, established in El Salvador, who carries out by himself or through intermediaries’ commercial transactions or exchange of goods, using any kind of technology.
III. ELECTRONIC COMMERCIAL COMMUNICATIONS
The information generated or communicated in electronic, optical, magnetic or any other technology shall have the same legal effects, validity, and probative force as that contained in physical format.
When a communication or contract is required to be in writing, this requirement shall be deemed to be fulfilled when it is made through an electronic medium and if it is accessible for subsequent consultation.
An electronic commercial communication shall be deemed to have been sent at the time it leaves a data information system under the control of the originator or of the party sending it on behalf of the originator and shall be deemed to have been received at the time it enters a data information system designated by the addressee.
When an error occurs at the time of entering data in a commercial communication, provided that the acceptance and payment of the good or service by the recipient has not occurred, the originator shall be entitled to withdraw such communication or send a message communicating the error to the addressee.
IV. INFORMATION REQUIRED IN ELECTRONIC COMMERCIAL COMMUNICATIONS ON PROMOTIONAL OFFERS OR DISCOUNTS
Commercial communications made by electronic means, which contain promotional offers or discounts, must be clearly identifiable as such, specifying terms, conditions, and validity.
V. UNSOLICITED ADVERTISING OR PROMOTIONAL ELECTRONIC COMMERCIAL COMMUNICATIONS
The suppliers of goods and services who wish to send advertising or promotional communications and who do not have the prior consent of the user, may only do so if they comply with the following requirements:
- Indicate in the same that it constitutes an unsolicited promotional electronic commercial communication.
- Include in the message an option to request the exclusion of the lists of recipients of the same.
- That the data of the recipients have been obtained without infringing the rights of protection of personal data.
VI. VALIDITY AND EFFECTIVENESS OF CONTRACTS CONCLUDED BY ELECTRONIC MEANS
Contracts entered by electronic means shall produce all the effects provided by the legal system for contracts, when all the legal requirements for their validity are met.
VII. OBLIGATIONS PRIOR TO CONTRACTING
The supplier of goods and services that performs electronic contracting activities is obliged to make available complete, clear, understandable, and unequivocal information prior to initiating the contracting procedure. Without prejudice to compliance with other legal requirements, the following information must be shared:
- Steps to be followed to enter the contract.
- Terms and conditions regarding the product or service to be acquired or type of relationship to be established.
- Order of the goods or services to be acquired with their description, individual price, total price and, if applicable, the additional costs to be paid for shipping.
- Delivery time of the goods or services.
- The means available to review and validate the data.
- Means applicable to resolve disputes.
- Language and form of payment in which the contract may be formalized.
VIII. CONFIRMATION PROCESS AND OBLIGATION TO PROVIDE PROOF OF TRANSACTION
During the purchase process, before paying, the user must have the opportunity to verify, modify and confirm his order, establish the place of destination, to be informed of the rates that apply, amounts to be paid, additional charges; as well as to verify that his personal data are correct in the order.
Any supplier of products or services that offers or sells them using any technology or communications networks, once the transaction is completed, will send the user electronically the proof of payment.
IX. ELECTRONIC INVOICE
The electronic invoice issued by suppliers of goods and services to e-commerce users will have the same accounting and tax validity as the conventional invoice if it complies with all legal requirements.
X. OBLIGATIONS OF SUPPLIERS OF GOODS AND SERVICES
The suppliers of intermediation services in the exercise of their activities shall be obliged to:
- Inform permanently, easily, directly, and free of charge, about technical means that allow, among others, protection against computer viruses.
- To have mechanisms for the reception and management of claims in a permanent, easy, direct and free manner.
Suppliers of goods and services shall be obliged to keep the following information free of charge, permanently, updated and easily accessible in the electronic media in which they market their goods and services:
- Name or company name, address, e-mail, telephone number or any other information that allows establishing a direct and effective communication.
- Tax Identification Number.
- If the activity is subject to a prior administrative authorization regime, the data related to such authorization.
- If the activity is a regulated profession, the number of authorizations to practice the profession must be indicated.
XI. DUTY OF COLLABORATION AND LIABILITY EXCEPTION
The providers of intermediation services shall be obliged to interrupt the rendering of the service or the access to a content when the judicial authority has ordered it in the exercise of precautionary measures or in the execution of firm resolutions.
Providers rendering the service of internet access or data transmission through telecommunication networks will not be liable for the electronic commerce transaction made by the user of the goods or services acquired, nor for the information transmitted, nor its content, unless they have originated its transmission.
The legal provisions of the LCE are related to other existing regulations that address other specific elements of electronic commerce: it is also complementary to the Electronic Signature Law and to the draft of the Personal Data Protection Law under discussion.
With the entry into force of the Electronic Commerce Law, El Salvador is now one step closer to streamlining its commercial processes for its businesses and industries. Greater clarity of regulatory expectations, processes and commercial frameworks will allow companies to navigate this emerging industry and the broader domestic market more easily. El Salvador offers ideal business conditions for online companies looking to expand in Central America.
At the same time, in the public sector, the State will gradually seek to make available to users the technological tools that allow those administered to carry out procedures online, receive answers in the same way, receive duly certified documents. In addition, they can access the information issued by each public institution at any time, except that which is reserved in accordance with the provisions of the Law on Access to Public Information. Also, it will seek the use of such tools in public procurement processes to facilitate and expedite them, in accordance with the provisions of the LCE.
With the entry into force of this regulation we can warn that those who market their products or services through electronic commerce, through the various web platforms, must perform a check to validate that they are complying with the minimum obligations before, during and after the procurement of goods and/or services; with emphasis on those that must be included as an integral part of the web platforms: requirements, specifications, contracting conditions, contract formats, summary and confirmation of orders.
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Our team of specialized professionals trained to develop effective strategies for the implementation of the regulations in the various economic sectors, in areas such as but not limited to:
– Online business creation via Social Networks.
– Business models and virtual contracting through platforms and networks.
– Knowledge of legal tools in the field of legaltech, to improve online contracting.
– Data protection and confidentiality policies in the use of platforms and networks.