On Friday 31st
of March, with the Royal Decree 13/2012, the Spanish Government transposed
common regulatory framework for networks and
electronic communications services, access to
networks and associated facilities,
on the authorisation of networks
and electronic communications services
(the transposition period
expired on May 25, 2011).
The transposition of these
the incorporation into Spanish
law of the new European
regulatory framework on
electronic communications. According to the words of the Spanish
Government, “the amendments
seek to create a framework for
making investments in the
deployment of next generation networks,
enabling to offer
innovative and more technologically
services appropriate for the needs
of citizens. It introduces
important innovations with regard
to the rights of operators
and in the field of data
a decisive bid
to achieve higher levels of
This decree is a significant
modification of the current General Telecommunications Law 32/2003, dated
November 3, and Law 34/2002 of 11 July on the services of information
society and electronic commerce, as regard to electronic business
Regarding changes in the Law 32/2003,
the most important issues, among several new theoretical objectives and
- The obligation
for operators to properly manage the security risks that could affect
their networks, attributing to the Ministry of Industry, Energy and
Tourism supervisory powers on the information obligations, incident
reporting and auditing.
- With regards to
the users’ rights, it has introduced the right to change the operator
with the number portability within one working day also with the
improved obligation to provide them complete information.
- Regarding data
protection, modifications have been directed to grant greater levels of
security to guarantee fair processing of personal data by the operators.
- Operators with
significant market power will be also obliged to maintain a functional
separation of network assets and wholesale provision of access products.
As regards the amendments to the third
title of the Law 34/2002, we highlight changes occurring in the legislation
on e-mail marketing and in particular:
- The inability to
hide the identity of the sender of commercial communication. Campaigns
concealing the identity of the real sender are prohibited.
- The prohibition
of email marketing campaigns that encourage consumers to visit web
sites, and are made without complying with the requirements of consent
or identification, being classed as "advertising."
- The obligation to
include a valid email address in the campaigns. Email marketing
campaigns from email accounts that do not allow a direct response are
prohibited, such as those that contain the "no-reply" formula (unless
they provide a valid e-mail address within the campaign).
- The power granted
to providers of electronic communications services to bring actions for
injunctions to protect its legitimate business interests, or the
interests of their clients, each time they detect behaviour which does
not comply with the prohibition of commercial communications or
infringes the rights of the addresses of those services.
Moreover, the new wording of Article
22.2 now contains the obligation to require user consent before the start of
files or programs (“cookies”) that store information. Introducing conformity
in the use of devices that facilitate navigation through the network but
whose use might breach the privacy of users, ensuring users are properly
informed and have mechanisms that allow them to preserve their privacy.
Having said this, we should
mention that, as stated in the last paragraph of the Article 22, the above
will not hinder the possible technical storage or access with the sole
purpose of carrying out the transmission of a communication through an
electronic communications network, or if it is strictly necessary to provide
an information society service that was expressly requested by the
Unfortunately still no mention is made
about any obligation regarding advertising on social networks, an area in
which the expansion of this type of communication is growing and which would
require further regularisation, especially due to the fact that the
potential audience is getting younger.