Introduction |
The rapid increase of internet services that has captured both business
and the consumer interest in electronic commerce, with its reduced costs
and speed in performing the transactions, has been a substantial boon to
high tech savvy Romania. E-commerce has given a strong push to small and
medium sized companies to use the internet to increase their business
and has allowed access to goods and services by Romanian consumers that
could not have otherwise been realized.
With such growth, come significant issues that need solutions – for
instance, how to best ensure the protection of customer’s personal
information; or how to secure electronic contracts; or how to avoid spam
and scams. In response to these issues, and with an eye towards
Romania’s accession to the European Union (“EU”), Romania adopted
Law 365/2002 on electronic commerce (“Law 365”), actually
transposing the provisions of the Directive adopted in this field by the
EU. There are also other laws regulating different aspects of electronic
commerce. |
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Freedom to provide “services in the
informational society” |
In full compliance with the provisions of the directive adopted at the
EU level, Law 365 establishes the principle of freedom to provide
“services in the informational society,” meaning that, in order to
provide such services, a company does not need any prior authorization,
the services being provided in compliance with the principles of fair
trade and free competition. According to Law 365, a “service in the
informational society” means any activity providing services or
involving the creation, amendment, transfer or termination of a real
right on a fixed or non-fixed asset, carried out by electronic means,
that includes all of the following characteristics: is
performed in exchange for something of value to the supplier usually by
the recipient, where the supplier and the recipient do not have to be
physically present simultaneously at the same place and the activity is
carried out by transmitting the information upon the individual request
of the recipient. The recipient is defined as any individual or legal
entity that uses, in commercial, professional or other purposes, a
service in the informational society, in particular for searching
information or for acquiring access to such information.
The freedom to provide services in the informational society is ensured
by the “home country control principle”, meaning that only one state is
to control the legality of the activities performed by a supplier of
services in the informational society, and that state is the one on
whose territory the supplier is headquartered. |
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Commercial Communications. Spam |
In
e-commerce business, using commercial communications is essential for
advertising purposes. Law 365 defines commercial communications as any
form of communication meant to promote, directly or indirectly, the
goods, services, image, name or denomination, company or logo of a
trader or a member of a profession. Furthermore, Law 365 settles the
minimum conditions that must be fulfilled by service providers
performing commercial communications, the basic principle being that
sending commercial communications through e-mail is prohibited, with the
exception of cases where the receiver has given his consent to receive
such communications. The receiver’s consent can be obtained in any form
and can be proved by any means by the services supplier. Law 365 and its
implementing regulations describe in detail the conditions to be
fulfilled by consents transmitted by e-mail messages. The receiver of
commercial communications has the right to revoke its consent to receive
such communication by simply notifying the sender. The provider has an
obligation to implement a free procedure, accessible also by electronic
means, through which the receiver is able to revoke its consent, and the
provider must make this procedure public on its webpage and in the
messages containing commercial communications.
Sending non-requested advertising messages via the Internet has
increased dramatically over the past years, with severe consequences
leading even to electronic fraud. Such non-requested commercial
communications are sometimes considered in non-specialized legal
language as “spam”, a term defined in the legislation of other
countries, although persons working in Romanian institutions competent
in this field consider that “spam” is more than just a “non-requested
commercial communication,” spamming being a significant aspect of
potential electronic fraud, as well as a great loss of time and money
for the parties involved in the process.
In an attempt to limit the potential dangers generated by spam, Law 365
regulates in detail the conditions that must be fulfilled by commercial
communications, which represent services in the informational society or
a part of such services, in order to be permitted as commercial
communications, to wit: they must be clearly identifiable as such; the
individual or legal entity in the name of which they are sent must be
clearly identified; promotional offers, such as discounts, prizes and
gifts, must be clearly identifiable, and the conditions to be met for
obtaining them must be easily accessible and clearly presented; and
competitions and promotional games must be clearly identifiable as such,
and the participation conditions must be easily accessible and clearly
presented as well as any other conditions stated by applicable legal
provisions.
As the process of transmitting commercial communications entails the
existence of an entire database of potential clients’ personal
information, and in consideration of the significance in protecting the
right of any person’s privacy, Romania adopted a specific law, i.e. Law
506/2004 setting the specific conditions for guaranteeing privacy with
regard to the operation of personal data in electronic communications.
As an exception to the interdiction to send commercial communications by
e-mail without the receiver’s prior approval, Law 506/2004 establishes
that, in the event that an individual or legal entity has obtained a
client’s e-mail on selling to the latter a product or a service, then
the individual / legal entity is entitled to further use that e-mail in
the purpose of transmitting commercial communications to the client with
regard to similar products or services, but under the condition that
they clearly and expressly provide to the clients the opportunity to
eliminate such use of e-mail in a simple and free manner. |
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Contracts Concluded by Electronic Means |
In
order to facilitate e-commerce transactions, Law 365 contains specific
provisions regarding the conclusion of contracts by electronic means.
Due to the fact that these contracts do not require the simultaneous
presence of the parties, they may be considered as distance contracts,
regulated by the Government Ordinance 130/2000, if they are concluded
between services providers and consumers, defined as any individuals or
legal entities acting in other purposes than in their commercial or
professional activity. Contracts concluded by electronic means produce
all the effects that the law recognizes for the other contracts, when
all of the conditions requested for their validity are met. Such
validity conditions do not require that both parties provide their
consent to the use of electronic means.
As the conclusion of contracts by electronic means entails certain
risks, Law 365 provides for specific guarantees ensuring the
transparency of the services providers’ activity, focusing on the
latter’s information obligation. Such information obligation of service
providers may be analysed from two perspectives: the suppliers’
obligation to inform the receivers, and the suppliers’ obligation to
inform consumers.
In the first instance, the service provider has the obligation to place
at the disposal of all receivers, before any receiver sends an offer or
accepts an offer, at a minimum, the following information in a clear,
unequivocal manner and in an accessible language: the technical steps
necessary to conclude the contract; if the contract, after conclusion,
is or is not stored by the service provider and if it is accessible or
not to the receiver; the technical means the service provider puts at
the disposal of the receiver to identify and correct any mistakes in the
contract; the language of the contract; the relevant conduct codes to
which the service provider subscribes and information on how these codes
can be reviewed by electronic means; and any other information that may
be required by specific laws. The contractual terms and the general
conditions must be put at the receiver’s disposal in a way that should
permit him to store and to reproduce them.
In the case of consumers, they must be informed with regard to the
service providers’ contact data, as well as provided with their
registration numbers with the Romanian competent trade and fiscal
authorities. Also, service providers must post on their website
information on the prices of their products and services, if the
delivery costs are or are not included in the price and what are the
costs. The prices must be indicated in full compliance with applicable
legal provisions in force, mentioning if the VAT is included or not, and
the VAT amount.
The information obligation is also extended to the methods by which to
conclude the contract. The service provider must inform the consumer on
how he can choose a product or a service, on the steps to be followed to
order a product, on the payment method, on the delivery and on the right
to cancel the contract. To send the order, the consumer must fill in an
electronic form with his name, address, phone number, e-mail address and
registration password. This password can help the consumer to track the
orders he has made, shortening the time necessary to introduce his
personal data. The contract is concluded when the acceptance of the
offer is received by the service provider, if the parties have not
otherwise agreed. When the receiver sends by electronic means an offer
to conclude a contract or the acceptance of an offer, the service
provider has the obligation to confirm that he has received the offer or
the acceptance of the offer.
Concluding contracts by electronic means also entails another specific
issue, which is the electronic signature, regulated by Law 455/2001,
defined as data in electronic form, attached or logically linked to
other data in electronic form, representing an identification method for
the party applying such signature. |
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Liability of Service Suppliers |
The sanctioning regime applicable in case of infringement of the
provisions of Law 365 was created considering the practical
impossibility of performing an efficient and full control over
activities performed in the electronic communications field. Therefore,
in case of contracts concluded by electronic means, Law 365 provides as
sanctions the relative nullity of such contracts, if the service
supplier has infringed its legal obligations to duly inform the other
contracting party. Therefore, the law actually creates the presumption
that if a failure to inform the other contracting party occurs, the
service provider has failed to conclude the contract by reason of a flaw
in the other party’s consent. In addition, the law provides for a civil
fine as a sanction.
The Ministry of Communications and Information Technology, which is the
regulatory authority in this field, has established a specific e-mail
address where abuses in this area may be reported -
abuzuri@mcti.ro , so as to be able
to more efficiently correct problems generated in practice by the
electronic commerce as quickly as possible.
Law 365 expressly states that, in litigations stems from services in the
informational society, the service supplier is the one bearing the
burden of providing proof concerning the fulfillment of its information
obligations, as well as of the obligations referring to the transmission
of commercial communications, when the contracting party is a consumer. |
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Conclusion |
In
a fast developing economy, alternative selling channels and increased
communication speed, as well as rapid and easy advertising methods,
represent the undoubtedly positive aspects of electronic transactions
for the service providers. For consumers, e-commerce is less time
consuming and offers far greater choice alternatives, as virtual shops
can be visited easily and faster from anywhere in Romania where computer
access exists. While e-commerce comes with a series of risks for
customers stemming from their inability to view and test the products
they are purchasing and from the very numerous schemes developed for the
purposes of obtaining personal information and bank account information,
the benefits for the Romanian consumers have been improved by effective
legislation adopted by Romania. |
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Editors Note: It is our policy not to mention our clients by name in
The Romanian Digest™ or discuss their business unless it is a matter of
public record and our clients approve. The information herein is correct
to the best of our knowledge and belief at press time. Specific advice
should be sought from us, however, before investment or other decisions
are made.
Copyright 2009 Rubin Meyer Doru & Trandafir, societate civila de avocati.
All rights reserved. No part of The Romanian Digest™ may be reproduced,
reused or redistributed in any form without prior written permission
from the publisher.
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