22 Jun E-Commerce Regulations in Venezuela
In 2001, Venezuela enacted a law regulating electronic messages and signatures (Ley sobre Mensajes de Datos y Firmas Electrónicas – hereinafter the «LMDF»).The LMDF resembles, in part, the Model Law on Electronic Commerce and the proposed Model Law for Electronic Signatures (2001) prepared by the United Nations Committee on International Law (UNCITRAL), though the Venezuelan law is broader than the model laws. The LMDF also has similarities with Colombian Decree 527 of 1999. The LMDF covers, in addition to electronic messages, electronic signatures, and sets forth the rules for certification of signatures and the qualification of signature certification agencies, as well as creating de Superintendent of Electronic Certification Services (Superintendencia de Servicios de Certificación Electrónica, «Suscerte»).
The Partial Regulations of the LMDF were issued in 2004 and cover the accreditation process of the providers of certification services before Suscerte, the creation of a registry of auditors and the security standards, procedures and plans.
Validity of data messages.
The LMDF recognizes the validity of messages sent by electronic means (principle of functional equivalency). In effect, under LMDF, electronic messages have the same legal effects as a written document, and printed messages received through electronic means, the same effects as a photocopy. This means that two parties in Venezuela can complete and enter into a contract by exchanging messages on a computer. This does not mean, as some people had misinterpreted, that all messages sent and received over the Internet can give rise to a contract. A contract will only rise when, in fact, the parties are in agreement and there is sufficient consideration. However, companies operating in Venezuela should be aware that the exchange of electronic messages can give rise to a contract. For companies that work with distributors and exchange frequently information electronically, it is recommendable to have contracted a prior set of rules regarding when and how electronic orders are made and their effects.
Special rules affecting offer and acceptance.
According to the Venezuelan Civil Code, there is a contract when the offeror has knowledge of the acceptance; acceptance is presumed to be known at the time the acceptance is received at the address of the offeror (Civil Code, Article 1137). The LMDF assumes a message is sent when the sender’s system transmits the message (Article 10); and the LMDF presumes a message is received when sent to an address given to the sender by the recipient or, if no (electronic) address is given, then when received at the address regularly used by the addressee (LMDF, Article 11).
An electronic signature, under the LMDF, is any information created by the user that is associated with the data message and allows others to attribute the authorship of the message to a particular person. Though it is not clear under the law, an electronic signature would seem to include both a signature properly certified by a certification company, as well as any other message that allows you to connect the person with the electronic message. The LMDF does not require that the signature carry with it the intent to be bound by an agreement. This seems to mean that any identification of a person could, at some point, be considered a signature and could give rise to a binding agreement.
A certified signature is a signature certified by a properly authorized certifying company. A provider of certification services, or certifying company, must be qualified by Suscerte. Foreign companies can be qualified as certification companies. To accredit a company as a certifying company, an application must be made to Suscerte. Suscerte keeps a registry of companies that are qualified to act as signature certifiers.
The LMDF, not unlike most laws, does not resolve the issue of taxation in relation to e commerce, that is, what sales tax system (e.g. VAT) is applicable to a sale which, for example, might be coming out of the United States into Venezuela. It also does not solve the problem of what law is applicable to the agreement in case of a dispute, though it would seem that Venezuelan law is applicable to an agreement where the buyer is located in Venezuela unless, of course, the parties agree otherwise.
May 7, 2020