One of the most frequently asked questions we receive are questions revolving around what legal and tax related issues are involved in setting up a blog or website in general. Things like what kind of legal notice a website needs, or if earning a small amount of money from AdSense advertising involves tax obligations.
We have given some specific touches to the subject, but we have long wanted to address it as it deserves because indeed, there is a legal framework that you have to take into account when creating a website that has its substance and that affects even people who create it as a simple personal entertainment, without professional or profit.
And to do it well, we have counted on the lawyer Nando Olcina, a connoisseur of these issues and author of a blog that focuses precisely on them.
This post is the first of a series of posts that we will be publishing over the coming months where we will solve all the important legal doubts about the so-called “digital law” that most concern you, along with the tax issues that also arise at the time when your website starts to generate revenue.
Today we will focus on the subject of the legal notice.
What is the legal notice?
We refer to the well-known “Legal Notice”, as the compendium of texts or mentions of a legal nature that a website must contain, which will be accessed through a link or link, located in a visible place that redirects to that content, permanently and obviously free of charge.
It is not necessary that such link be called “Legal Notice”; expressions such as “Legal information of interest to the user”, “Legal issues of interest” or any other equivalent can be included, as long as it is clear that the web user will find in that link all the legal information corresponding to the page.
In fact, there will be legal mentions that do not necessarily have to be included in the text of the legal notice, but requirements such as the basic description of the products or services offered on a website, or the price of the same can be included elsewhere on the website, such as in the product sheet.
When am I obliged to have a legal notice on my website?
We will be obliged to have a legal notice containing the mentions of the Law of Services of the Information Society (LSSI), which would be like the framework standard for service providers through the Internet, as long as:
It is a company website.
It is a corporate blog (associated with a company or business).
Through the web we obtain income, either directly through e-commerce activities by offering goods and/or services, or if that income is received indirectly, for example, through advertising contracts and, attention, regardless of the volume of income generated.
What should the legal notice contain?
The content of the legal notice of a website, as it may seem obvious, will depend on the type of website to which we refer.
Thus, if we are referring to a blog in which only articles are posted, no personal data is collected through any type of form, nor are cookies installed on the user’s device, then, logically, no legal notice would be necessary. But of course, it is very rare, or perhaps impossible, to find a blog that does not meet any of the above premises.
If, on the other hand, it is a website that collects personal data but through which no income is obtained, and in which cookies are not installed, then the legal notice will consist only of a privacy policy.
And so we can go making the combinations that we consider.
Therefore, if through a website, income is obtained directly or indirectly, data is collected, cookies are installed, and products or services can be contracted, this page must have a legal notice that, from my point of view, should be composed of four large blocks:
Terms of use.
Privacy policy.
Cookies policy (as part of the privacy policy).
Contracting conditions.
I often come across the circumstance that these terms are confused. Therefore, let’s try to explain what each of these blocks should contain:
- Terms of use (or conditions of use).
This is the clause dedicated to the use of the web by any Internet user who has access to it, by the fact of typing the domain or clicking on a link that redirects you to it. You may not contract any service, but we have the obligation to inform the user-internauta of a series of extremes:
The mentions of Article 10 of the Law of Services of the Information Society and Electronic Commerce (hereinafter, LSSI), in a mandatory, permanent, easy, direct and free way:
Name or company name of the owner of the website, as well as the address or registered office and/or any other data that allows to establish a direct and effective communication.
The tax identification number (N.I.F or C.I.F).
If it is a commercial company (a Limited Company, for example), the registration data in the Commercial Registry of the province in question must be stated.
If the activity is subject to a system of prior administrative authorization, the data relating to such authorization, as well as the administrative body in charge of its supervision, must be stated.
If a regulated profession is exercised (architect, lawyer, doctor…), the data of the Professional Association to which he/she belongs and the number of member, the official or professional title he/she holds and the State of the European Union and of the European Economic Area in which said title was issued and, if applicable, the corresponding homologation of said title must be indicated. The professional rules or codes of conduct applicable to the exercise of their profession and the means by which they can be known (a link to the page where they are collected from the Professional Association in question would be useful) must also be stated.
The prices of the product or service offered must be clearly and accurately stated, indicating whether or not they include the applicable taxes and, if applicable, the shipping costs or, if applicable, the provisions of the rules of the Autonomous Communities with competence in the matter.
We can also include different types of clauses, whose purpose is none other than to inform the user how we want our website to be used:
Clauses on intellectual property
It is at least convenient to state in the terms of use who is the owner (owner or licensee) of the contents of a website, as well as issues such as what is the regime to which we want to submit the contents of our website: with an absolute reservation of rights or if we opt for the figures of the “copyleft”, giving or licensing our content, setting or not limits to the license or authorization of use. Obviously it will depend on the product or service we offer through our website. If, for example, we offer free software through our website, we will have to establish how we allow the use of that software.
Clauses related to the linking policy of our web site
Basically, in these clauses we will regulate what happens with the links published in our web, exonerating us of responsibility with respect to the content of those pages that belong to third parties and of which we do not have any control.
We can also establish conditions related to how we want or how we do not want other pages to link to us, such as, for example, prohibiting deep-links, IMG or image links, frames, which may make the user understand that they are on another website that is not ours. In the end, if they want to link to us in this way, they will do it, but at least they will not be able to argue that we did not warn them.
Clauses relating to the right of exclusion of access to the site
Intended to inform that those who do not comply with the conditions established in the terms of use will not be able to access the website.
Reservation of the right to modify the terms of use
We may include a reservation of the right to modify the terms of use, but making it clear that the modification will have effect with respect to those who use the site after such modification.
And any other clauses that we deem necessary to regulate the use of the website by those who visit it.
- Privacy policy
The privacy policy is nothing more than the mentions that our legal notice must contain in relation to the personal data that, where appropriate, we collect through the different forms that we have provided throughout our website.
It does not matter what the form is for: contact, to comment on the web blog, to request information, to contract a service, etc. In all these forms we collect personal data, understanding personal data as “any information concerning identified or identifiable natural persons” (article 3. a) of the Organic Law on Data Protection (LOPD).
As for what my blog’s privacy policy should contain, we will discuss this topic in depth in a later post.
- The legal notice and cookies
Although we are treating it as a separate issue from the privacy policy, make no mistake, the cookies policy is an indissoluble part of it, since cookies are information files that the server of a website sends to the device (computer, smartphone, tablet, etc.) of the person accessing the page to store and retrieve information about the navigation that is made from that computer.
In 2012, Article 22.2 of the LSSI was amended and this was called the “Cookies Law”, when in fact it was the amendment of a single article regulating this issue.
Cookies do not collect personal data, but they can provide a lot of information about the user’s browsing habits, and even the IP, and since this information could in some cases be used to identify the interested party, we must inform users of the use of cookies in accordance with the provisions of the Organic Law on Data Protection (LOPD).
Nobody took it very seriously at first, but when the Spanish Data Protection Agency (AEPD) sanctioned a company for the first time in 2014 with a fine of 3,500 € for not warning of the use of cookies, everyone “got the batteries” in terms of information on the use of cookies.
In short, for our website to use cookies, we must obtain the user’s consent to their use, prior to their installation. Yes, prior to their installation, so it is more than advisable not to install all cookies as soon as you enter the web, but after the user’s acceptance of the installation of the same.
