This Wednesday, Facebook, Instagram and WhatsApp have had problems all over the world, which have prevented users from uploading images and videos. Concrete problems, more than falls of the service, of those who did not inform until hours later, through an official communiqué, in which they were limited to saying that they were aware of the problems and that they felt the inconveniences.
These problems come to join the two falls what they had in March Y April, and they have asked more than one if Facebook could be required some kind of responsibility (sanctions or compensations) for interruptions or poor quality of service and the damage caused to users, although such services (Facebook, Instagram, Whatsapp) be, in principle, free.
But it is not true that they are free services. Users do not pay money for using them, but pay with its data and its contents, allowing the exploitation of them. So it is clear that they are services of the Information Society, in the sense of definition of the LSSI, because they constitute an economic activity, although they are not remunerated by their recipients.
The 'Terms of Service' and the 'Adhesion Agreements'
Within the Conditions of service, in section 4.3 – on the "limits of responsibility" – Facebook says: "We will make every reasonable effort to provide you with our Products and maintain a safe and error-free environment. However, we can not guarantee that our products will always work without interruptions, delays or imperfections. "
However, this 'liability exemption' clause needs to be studied in the light of the General Law for the Defense of Consumers and Users, as it is an 'individually negotiated clause', within an 'adhesion contract', which must meet the requirements of good faith and fair balance between the rights and obligations of the parties and, therefore, not be "abusive" . (art. 80)
The law says that, if a judge so declares, "the abusive clauses will be null and void and will be considered as not" (art. 83) and that "in any case, the clauses that limit or deprive the consumer and user of the rights recognized by dispositive or mandatory rules will be abusive" (art. 86), in this case, the rights of users of electronic communications services.
The General Telecommunications Law
The General Telecommunications Law regulates both the operation of networks and the provision of electronic communications services (art. 1.1), but define these as 'signal transport services', excluding the 'services that provide content', so it would not be applicable to social networks. However, it could apply to services such as Skype or Whatsapp.
Among the specific rights that the Law recognizes to the end users of electronic communications services, are: f) the right to continuity of service and to obtain automatic compensation for its interruption; as well as: h) the right to receive complete, comparable, pertinent, reliable, up-to-date and easy-to-consult information about the quality of the services. (art. 47.1)
It is clear that they are services of the Information Society, in the sense of definition of the LSSI, because they constitute an economic activity, although they are not remunerated by their recipients
The LGT obliges operators to have a "customer service", free for users, which aims to provide information and address and resolve their complaints and claims. Adding that customer service by telephone should guarantee direct (human) "personal" attention, beyond using other "technical" means in addition. (art. 47.2)
It is considered: serious infraction (art. 77.37): the serious infringement of the rights of consumers and end users; and mild (art. 78.12): Failure to comply with the obligations regarding quality of service; that they can carry sanctions: of up to two million euros, the serious infraction, and of up to 50,000 euros the slight infringement. (art. 79.1)
The traditional telecommunications operators have been defending for a long time that the same rules apply to them as to Internet companies that provide their services 'over' those networks ("Over The Top"). Although, for now, in Spain, the CNMC has not forced them to register in the Registry of Operators of electronic communications, this could change.
Duty of information on security incidents
On the other hand, Internet companies that provide social network services or messaging services, depending on the General Regulation of Data Protection, have the obligation to report any breach of the security of personal data, notifying the Spanish Agency for Data Protection (Article 33) and communicating it to affected users (Article 34).
The recent Royal Decree-law on security of networks and information systems (of September 7, 2018), which incorporates into the Spanish legal system the European Directive on measures to ensure a high common level of security of networks and information systems in the Union (of July 6, 2016). imposes notification obligations (art. 16.1)
"The providers of digital services must adopt technical and organizational measures, adequate and proportionate, to manage the risks that arise for the security of the networks and information systems used in the provision of services, and to prevent and minimize the impact of the incidents that affect them, without prejudice to their duty to notify incidents. "
Borja Adsuara is Expert in Digital Law
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