On January 21 of this year, Decree No. 6 of the Ministry of Economy, Development and Tourism was issued, which contains the regulations on electronic commerce. It is a long-awaited rule in the consumer law sector, as well as by those who are dedicated to the study of computer law.

His dictation comes at a time when, due to the COVID-19 pandemic, a forced and necessary boost has been given to electronic commerce. We must observe, in any case, that, up to the moment of this article, said decree is subject to the procedure of Reasoning by the Comptroller General of the Republic.

It should also be made clear that this decree is the necessary complement to the rules of consumer law regarding consumer contracts that already had special provisions for many years.

In effect, the Law for the Protection of Consumer Rights, No. 19.496[1] it underwent important modifications that implied adding certain aspects in which technology intervened in consumer relations. Thus, Law No. 19.955[2] ordered the addition of articles 12 A and 28 B, and the incorporation of a subsection to article 32, which touched on the issue of transactions of this law carried out through remote means.

Consequently, the rules of the regulation come to complement a matter that needed urgent regulation and that dated from at least sixteen years. The analysis to be carried out will focus on the aspects most related to computing, without prejudice to commenting on what is related to the consumer standard.

The most relevant of the regulation is the appearance of two concepts: the operators and the electronic commerce platform (platform). The operator is the provider that makes an electronic commerce platform available to the seller, either its own or that of a third party, so that they can offer their products or services to Consumers (art. 3, No. 3 Regulation).

Regarding the trading platform, Article 3, No. 4 defines it as any internet site or platform accessible through electronic means, which allows sellers to offer products or services and consumers to purchase or contract them, as appropriate.

However, the same regulation establishes certain exceptions, namely:

a) .- Internet sites or online payment service platforms.

b) .- those in which consumers cannot purchase products or contract services, regardless of whether or not the payment is made through the internet sites or platform.

c) .- those in which only advertising is displayed.

d) .- those in which the consumer is only redirected to internet sites or vendor platforms.

The important thing is that the regulation establishes the distinction between the operator of the platform and the seller who offers goods and services, delimiting the responsibilities of each.

So, for example, we find:

1) .- The second paragraph of Article 6, in the case of the delivery of information online, indicates that in the event that the platform is operated by a person other than the seller, the latter must provide the operator with all the information necessary to adopt the decision regarding consumption. For its part, the operator must deliver it to the consumer.

2) .- Article 7 details the delivery of the information from the seller to the operator, when the latter does not operate the platform, which must be sent to the consumer.

3) .- Article 8 also indicates the information that must be provided by the operator when he performs his work offering goods and services from a seller.

The remaining articles that follow this logic refer to the essential characteristics and benefits of the products and services (art. 9); information on hiring (art. 10); information on total cost (art. 11); information on stock and availability (art. 12); information on delivery, dispatch and withdrawal (article 13); information on the right of withdrawal (art. 14); information on contact support (art. 15); information on terms and conditions (art. 16); successive tract adhesion contracts (art. 17), all those making the necessary distinction between the case that the seller operates the platform, or the operator of the platform other than the seller.

As can be seen, the regulation clearly regulates the roles between the seller and the operator of the electronic platform where it offers its goods and services when it is not the same seller who operates it.

Another important aspect, and one that may cause interest, are the rules on consent formation. In a first approximation, we must be clear that the rules on the formation of consent in Chile are contained in both the Civil Code and the Commercial Code. Those standards have not been touched so far. The regulation, due to its position in the normative hierarchy, cannot alter these rules.

Article 4 of the regulation repeats the rule of article 12 A of the law, stating that consent will not be understood if the consumer has not previously had clear, understandable and unequivocal access to the general conditions of the contract and the possibility of storing them. or print them. It is a specification of the idea of ​​free will and without vice, adapted to the reality of computing.

What it does innovate is in expressly declaring that silence does not constitute acceptance of acts of consumption. And he ends by repeating the formula of 12 A in that the single visit to an Electronic Commerce platform - not an internet site as the law says - does not impose any obligation on the consumer unless he has unequivocally accepted the terms and conditions offered by the seller or operator of the platform.    

This regulation at no time touches the rules of consent established in the aforementioned codes.

For its part, article 18 of the regulation deals with the perfection of the contract, and the duty of the sellers who operate through the platforms to inform the price of the product or service, as well as the individualization and characteristics of these, the total cost to be paid and other pertinent information. In the second paragraph, it establishes that, once improved the contract, the seller is obliged to send the consumer a written copy of it, having to previously inform the means of communication that will be used for it, guaranteeing due and timely knowledge of the consumer. The same is established in the third and fourth paragraphs of article 12 A of the law. Therefore, there is no alteration in the rules on consent, only an adaptation to the reality of computing

To close this topic, we will make three complementary comments:

1) .- The regulation does not provide a definition of what is understood by internet site. This does not mean that the national legislation does not have any notion. Indeed, Article 1 in its 6th number of Law No. 20.285 on access to public information, defines the electronic site as follows: "Electronic sites: Also called 'websites.' Technological devices that allow the transmission of information through computers, telephone lines or through the use of digital publications ". It is not understood what is the distinction between electronic site and platform, since they operate through websites.

2) .- There is no alteration to the consent rules: In Chile, the theory of the declaration continues to be the rule regarding the formation of consent. Other figures such as the theory of the reception of communication or of the opening of communication have not been applied, let alone that of communication.

3) .- This is one of several attempts to regulate this matter, since years ago a rule was passed. Indeed, in 2013 DS No. 153 was issued[3] regulation on express manifestation of consumer acceptance in contracts for adhesion of financial products and services. There was severe criticism against the regulation, especially regarding the modifications to the contracts, which determined its repeal by Supreme Decree No. 79 of 2014.[4]

[1] Published in the Official Gazette on March 7, 1997.

[2] Published in the Official Gazette on July 14, 2004.

[3] Official Gazette, December 19, 2013.

[4] Official Gazette March 26, 2014.

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Manuel Vergara Rojas
Lawyer. Degree in Legal Sciences from the University of Valparaíso, Chile (State). He currently works as a Professor in the Law Degree, Viña del Mar Headquarters of the University of Las Americas and assistant in the Law Degree at Andrés Bello University, Viña del Mar Headquarters, in the area of ​​Public Law and Law History. He has published three books and scientific articles on public, computer law and history of law education.


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