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(Español) Derecho y startups en internet. Primeros consejos.
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(Español) ¡Feliz 2012!
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(Español) Neutralidad en la red y responsabilidad de ISP
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The Spanish Audiencia Nacional acepts warning in data protection cases
On June 17th, the Spanish Audiencia Nacional published the first resolution in which it applies the new disciplinary measures in the field of data protection.
The Spanish Data Protection Agency had considered that two breached had been commited: installing a cam in the ceiling of a garage place, which recorded images of neighbours on a hard disk and not being authorized by the neighbours and the Data Protection Agency to create the relevant file.
The Spanish Law 2/2011 (DF 56) modified some artichles of the Spanish Orgánica 15/99 which meant the introduction of new criteria, most of them less restrictive concerning sanctions by the Data Protection Agency.
Thus, Audiencia Nacional accepts the retroactive application of the most favorable law to the offender. The modified article 45,6 of the new Data Protection Law states that “The sanctioning authority shall, according to the nature of the facts and the application of the aforementioned criteria, once heared the interested parties, not to start the disciplinary proceeding and, instead, to warn the responsible person so that he proves to having adopted the proper repairing measures, within the term determined by such authority, if the following circumstances come together:
A) The facts constitute a minor or serious breach, according to this law.
B) The responsible person has not been previously santioned or warned.
In this case, the judgement issued by Audiencia Nacional overturns the punishments and replaces them by a formal warning.
CGPJ report regarding the project of Royal Decree for the Intellectual Property commission
One of the procedures required for the approval of the draft of the Real Decreto (Royal Decree) that regulates the functioning of the Intellectual Property Commision (aka the Sinde Act Regulation) is the report by the Spanish Consejo General del Poder Judicial (General Council of the Judiciary).
This report is now available via the web site of this entity and, although it’s too much critical with the text -as expected- it casts more than remarkable doubts on several aspects of the so-called proceeding of intellectual property rights protection, in particular:
- It questions the subjective scope of the rule, since it is a legal condition that the alleged offender is a formal provider of information society and, therefore, require the existence of profit.
- Clarifies that actions aiming at the identification of the owner of a web site can not be carried out without prior approval of the Juzgado Central de lo Contencioso Administrativo (Central Court of Administrative Disputes) which will undoubtedly lead to lethargy of many procedures.
- Considers that some of the terms are unreasonably short, as the term granted to the intermediary to provide the information about the alleged offender (24 hours) – and should be expanded.
- It shows the endless loop that would occur when a service provider voluntarily withdraws the contents, in which case the procedure would be archived and, if the user returned to “resume the infringing activity” could reopen the file, without specifying in when, or what it means to resume. For example: Rising different torrents through a different URL is a resume? Or an identical URL and files are needed? If you post a separate file, which allegedly violates a right but a third party’s one, different to the complainant’s, at the same URL, is this is a resume?
- Proposes that cease measures have a predetermined duration.
Although the CGPJ’s report is cautious and respectful, it shows very serious inconsistencies and technical and legislative errors that, by itself, would require a review of key aspects of the project, so this is a standard example of a sloppy, made quickly law with little legal touch to meet external deadlines.
Let’s see what happens with it.
Digital contents and intelectual property: Legal tracks
On Thursday, October 6, 2011 Metricson participates as a speaker at the workshop organized by Adigital under the title “Digital content and intellectual property”
Topics covered during this session will be mainly the following:
- Protection of digital contents (intellectual property)
- Measures to be taken in case of violation (C & D and procedures available)
- Spanish LSSI and “Sinde” Laws: Removal of content and services provider’s responsibility
- The tortuous relationship between brands and keywords in search engines.
The aim of the workshop is to present, in the form of practical examples and case studies, the current regulation of these substances and their possible evolution over the coming months.
This workshop will be held in CETIB (C / Bailen 68 in Barcelona). It is part of the “Legal Tracks” training initiative, promoted by the Spanish Association for the Digital Economy (Adigital), formerly known as AECEM; Legal tracks seeks to approach the world of law to technology companies, especially those related with electronic commerce.
If you are interested in attending, you can fill out this form; for non-Adigital partners, you can confirm your attendance by phone 932404070 or sending an e-mail to info@adigital.org.
See you there!
The corporate website in the Spanish Capital Companies Law (Ley de Sociedades de Capital)
The creation of a company’s website (a corporate website) in Spain must be approved by the company’s shareholders upon October 2nd, 2011, when the reform of the Spanish Ley de Sociedades de Capital (Capital Companies Act) comes into force.
According to Article 11 bis of Law 25/2011:
“1. Creating a corporate website should be agreed by the shareholders’ meeting. The agreement must be entered in the Registry of Companies or be notified to all shareholders.
The removal and relocation of the company’s web page may be granted by the board, unless a contrary statutory provision is set. This agreement shall be entered in the Register or be notified to all shareholders and, in any case it shall be entered on the removed or relocated website itself, within thirty days after the adoption of the agreement for transfer or withdrawal.
2. It will be in charge of the Company’s directors the test of certainty fact of the inclusion of content on the web and the date they were made. To prove the maintenance of such content in a particular term, it will be enough an acknowledgement issued by the managers, which who may be affected by the affected parties by any evidence admissible in law. “
For practical purposes this means that the creation and publishing of a new website that constitutes the “electronic office” (whatever this means) of a company, shall require a formal agreement of the Shareholders’ meeting. The creation and maintenance of this website without the prior consent of the Shareholders may be considered a breach of statutory duties of the board, leading to their respective responsibilities.
Along with the creation, the law regulates how to keep the contents of the corporate website, in particular, “the certainty of the fact of inclusion”, whose responsibility belongs, of course, to the directors of the company. It was already important to professionalize the content production and maintenance of online communication channels, but now the control and supervision of such content and the community work of community managers becomes a critical issue, since contents out of context are likely to mean a serious risk, not only to the community manager, but also to managers and directors of the company.
In our opinion, it makes sense to set up control measures for the creation of company web sites, as these are becoming increasingly important as “electronic offices” (a last-century expression, by the way) and a meeting place for companies with the market.
However, we believe that the drafting is too alien to the nomenclature and standard industry applications, so it may, eventually, lead to confusion. As an example:
- The creation of landing pages of offers, products and services, the corporate accounts on Twitter, the social network profiles and subdomains which are managed independently, are they considered corporate websites? Is it necessary to gather the consent of the shareholders in each of these cases?
- The law speaks of “corporate websites“. Is it referring to the home page or the entire web site? (A website consists of web pages, and few corporate sites consist only of a single page)
- How, exactly, is something published on a corporate website that has been suppressed?
- What exactly is a “transfer” of a corporate website? A change in structure? A server host migration? A change in the corporate image? The introduction of new sections?
I guess we will soon have answers to these questions through negative ratings issued by Mercantile Registrars, who will begin to apply the law in ways that now we can not even imagine, so we expect a few funny months ahead .
You know, if you are planning to create a website for your company, tell it to your lawyer beforehand 
Metricson in the emprendedores magazine
Since its foundation ten years ago, the Spanish magazine Emprendedores (www.emprendedores.es) is one of the key references in Spain for anyone interested in starting up a new company and getting updated information about entrepreneurship in Spain.
The may issue of the magazine includes a small overview about metricson, in which they mention our experience and international scope. You can find it above.
Thank you very much for your nice treating!
Job offer: Lawyer specialized in data protection and internet
We have opened a selection process for a lawyer in the data protection and privacy area of Metricson. The requirements are the following:
- Proven experience of at least three years in data protection implementation or audits and information services, drafting legal terms for websites, for copyright and patent rights (licenses, trademarks and domains).
- High English level (negotiation).
- Advanced knowledge of computer tools and internet.
- Living in Barcelona.
- Knowledge of other foreign languages will be an asset.
In summary, we are looking for a lawyer eager to learn, travel and develop his/her career in Internet business and Information Technologies, working with some of the most interesting business of the sector and in a company with an important international projection.
Our selection process will be easy and painless. To take part in it you only need to send an email to recruit@metricson.com with the topic “LAWYER PRIVACY” and add a link to your professional profile in Linkedin. We will not download your resume, we would just write to you in case you are selected for the next step.
The deadline to receive resumes is Wednesday, January the 26th, 2011. We are looking forward to receiving your email!
Metricson and adigital
Metricson has been confirmed as new member of Adigital, the Spanish Association of Digital Economy, the oldest, most prestigious and most influential business association related to Electronic Commerce in Spain, the former AECEM-FECEMD.
With this membership, Metricson consolidates its position being a member of the main Spanish business associations related to Internet business and electronic commerce: ESTIC (Business Association of ITC Companies of the province of Valencia), ITI (Computer Technological Institute) and ANETCOM (Association for the Promotion of Electronic Commerce and New Technologies in the Province of Valencia, integrated into the National Association of Internet Business -ANEI-).
At the same time, Metricson works together with other organizations devoted to the promotion of entrepreneurship such as First Tuesday España, iWeekend and Business Angels networks of the Balearic Islands (BANIB) and of the Autonomous Community of Valencia (CVBAN).
Becoming a member of Adigital will allow us to bring our voice to the debates about new laws that will determine the way that companies operate and relate among each other, laws that deal with copyright, consumer rights and many other questions that affect our customers.
