LAWON ELECTRONIC COMMERCE("Off. Herald of the RS", Nos. 41/2009, 95/2013 and 52/2019) |
Article 1
This Law shall regulate the conditions and manner of providing information society services, obligations to inform a recipient of the service, a commercial message, rules pertaining to the conclusion of contracts in electronic form, liability of the information society service provider, supervision and misdemeanours.
Fields to Which the Law Does Not Apply
Article 2
The provisions of this Law shall not apply to: the personal data protection, the activities of notaries public and other equivalent professions with regards to application of entrusted public authorities, the restrictive agreements in terms of the regulations on protection of competition, the taxation, the representation of clients and protection of their interests before the courts, as well as to the games of chance which involve wagering a stake with monetary value, including lotteries, casino games, betting games and games of chance on slot machines, unless otherwise provided by a special law.
Meaning of Certain Expressions
Article 3
Certain expressions, for the purpose of this Law shall bear the following meaning:
1) Information society serviceshall mean a service provided at a distance, as a rule, for remuneration, by means of electronic equipment for the processing and storage of data, and at the personal request of the service recipient, and in particular, online commerce, offering online information and online advertising, electronic search engines, as well as allowing for search of data and services transmitted via an electronic network, providing access to the network or storage of the data of the service recipients;
2) Information society service provider shall mean a legal or natural person. The provision of services of an information society, for commercial purposes, may be rendered by a legal or natural person, registered for the performance of a certain activity, in line with the law;
3) Recipient of the serviceshall be a natural person, natural person registered for the performance of a certain activity in line with the law or a legal person which, for professional ends or otherwise, uses information society services;
4) Consumershall mean a natural person purchasing goods, i.e. services for the purpose of satisfying personal needs or the needs of the household;
5) Contract in electronic form shall mean a contract concluded by the provider of the information society service and the recipient of the service electronically by electronic means;
6) Commercial messageshall mean any form of communication for the purpose of promoting goods, services or business reputation of a legal or natural person performing a registered activity, with an exception of:
(1) Providing information that enable direct access to this person’s activity, such as information about its electronic address or the electronic mail address;
(2) Giving, without remuneration, information collected through research or in other similar manner, about the goods, services or business reputation of this person;
7) Electronic communication operatorshall mean a person defined in line with the law governing electronic communications.
Article 4
The service provider with the registered office in the Republic of Serbia shall act and provide services in accordance with the laws and regulations passed on the basis of the laws of the Republic of Serbia.
Electronic commerce in goods and services shall be a form of the distance commerce within the meaning of the law regulating trade.
The provisions of this Law shall also apply to the matters of consumer protection, provided that they are more favourable for the consumer.
Authorised vocational associations and organisations of services providers can regulate the operations of their members by means of their bylaws - statutes.
The regulations governing contracts and torts shall apply to the legal relations arising out of or in connection to the contracts concluded by electronic means, i.e. in electronic form, unless otherwise provided by this Law.
Article 5
The provision of information society services shall enjoy freedom.
No special permit or approval shall be required for the provision of information society services.
Freedom of Cross-Border Provision of Information Society Services
Article 5a
Cross-border provision of services shall mean the provision of services in the Republic of Serbia or in the European Union, when the service provider has no registered office, i.e. has no business residence in the territory of the state where the service is provided.
Cross-border provision of services shall enjoy freedom.
The Ministry competent for electronic communication and information society (hereinafter referred to as: the ministry), through the inspection may, proportionally to the objective it wishes to achieve, undertake measures limiting freedom of provision of information society services, referred to in Article 21, paragraph 3 of this Law, to the service providers having a registered office in European Union member countries, only if that is necessary for protection (against real and serious threat) of the:
1) Public order, and in particular, prevention, research, detection and pursue of the criminal offence perpetrators, protection of minors and combat against instigating hatred based on race, sex, religion or nationality and violation of the individual’s human dignity;
2) Public safety, including protection of national security and defense;
3) Public health;
4) Protection of consumers, including the investors as well.
In case of occurrence of circumstances from paragraph 3 of this Article, the Ministry shall:
1) Inform the European Commission and the competent authority of the European Union member state in which the service provider has its registered office of the intention to impose the measure set forth in paragraph 3 of this Article;
2) Demand from the competent authority of the state where the registered office of the provider is located to take measures of restricting the freedom of provision of the information society service.
Where the competent authority of the state in which the service provider has its registered office fails to take measures within 15 days from the date of submission of the demand referred to in paragraph 4 of this Article, or where the taken measures are insufficient, the Ministry may take measures to restrict the freedom of provision of information society services, with prior notification of the competent authority of the state where the service provider has its registered office and of the European Commission.
Notwithstanding paras. 4 and 5 of this Article, the Ministry may undertake measures of restricting freedom of provision of information society services against the service provider whose registered office is in a member state of the European Union, without prior notification of the European Union member state in which the service provider has its registered office and of the European Commission, where there is reasonable threat of damage occurrence because of delay to undertake measures.
In case referred to in paragraph 6 of this Article, the ministry shall, without delay, and within 15 days from the date of undertaking the measures, inform the competent authority of the state where the service provider has its registered office and the European Commission of the imposed measure and the reasons based on which it deemed that it was a case of emergency.
The Ministry shall act in line with this Article, based on a reasoned proposal of the body of public authority, competent for issues referred to in paragraph 3, items 1) to 4) of this Article.
Initiation of court proceedings due to occurrence of circumstances from paragraph 3 of this Article, shall not exclude the obligation of the ministry to act in line with this Article.
The measures whereby the freedom of provision of information society services has been restricted need to be cancelled or revoked immediately upon cessation of existence of reasons for which they have been set, at the request of the provider of information society services imposed with the measure, other interested party or the European Commission.
The measure from paragraph 10 of this Article, may be revoked or cancelled by the competent ministry, ex officio, upon cessation of reasons for which the measure has been set.
The government shall regulate the implementation of administrative cooperation and electronic exchange of data with the EU member states in relation to overseeing the provision of information society services and undertaking of measures of warning.
II OBLIGATION OF INFORMING AND COMMERCIAL MESSAGE
Article 6
The service provider shall provide, in a form and manner that is directly and permanently accessible, the recipients of the service and competent state administration authorities with the following information:
1) Name and surname or title of the service provider;
2) Registered office of the service provider;
3) Other data on the service provider, including the electronic address, on the basis of which a recipient of the service can communicate with the provider rapidly and smoothly;
4) Data on entry in the Register of Business Entities, i.e. other public register;
5) Particulars of the competent authority where the activity of the service provider is subject to official supervision;
6) Concerning the specially regulated activities, i.e. professions:
- Professional or similar vocational association with which the service provider is registered;
- Professional title and the state that approved it;
- Instructions on professional rules of the state where the activity is conducted and the place where they are available;
7) Tax Identification Number (TIN), as well as the Value Added Tax payer number, from the certificate on completed registration for Value Added Tax issued by the relevant tax authority, if the service provider is a Value Added Tax payer.
Where the service provider refers to prices, these are to be indicated clearly and unambiguously and, in particular, the service provider must indicate whether these prices are inclusive of delivery costs, other handling charges, tax and other costs that affect them.
Article 7
A commercial message which is partly or fully an information society service, must comply with the following conditions:
1) That the commercial message can be clearly identified as such at the moment when a recipient of the service receives it;
2) That the person on whose behalf the commercial message is made can be clearly identified;
3) That any promotional call for placing an offer referred to in the commercial message (including discounts and gifts) must be clearly identified as such;
4) That the conditions which must be met for placing an offer referred to in the commercial message must be easily accessible, and be presented in a clear and unambiguous manner.
Article 8
Sending the commercial message electronically shall be permitted only with prior consent of the person to whom such message is intended.
The service provider shall regularly check and accept the revocation of consent, forwarded by the person not wishing to receive such commercial messages.
III CONTRACTS IN ELECTRONIC FORM
Article 9
A contract may be concluded by electronic means, i.e. in electronic form.
An offer and acceptance of the offer may be provided by electronic means, i.e. in electronic form.
Where the electronic message, i.e. electronic form is used to conclude a contract, the legal validity of such a contract cannot be disputed solely on account of having been made in electronic form.
Contracts to which the Law Does Not Apply
Article 10
Provisions of Article 9, paras. 1 and 3 of this Law shall not apply to contracts for which a special law prescribes that they cannot be concluded in electronic form.
Provisions of Article 9, paras. 1 and 3 of this Law shall not apply to contracts and other legal transactions for which a special law prescribes that they are to be prepared in the form of a publicly certified (solemnized) document or in the form of a notarial deed or that for their legal validity the signatures of the contracting parties need to be certified, unless otherwise prescribed by a special law or regulations governing the certification of signatures, confirmation and preparation of documents.
Provisions of Article 9, paras.1 and 3 of this Law shall not apply to surety bonds and guarantor’s statements of will, in case the guarantor is a person acting outside the limits of a trade, business or professional activity.
Article 11
(Deleted)
Obligatory Data and Notifications prior to Contract Conclusion
Article 12
Prior to concluding the contract on service provision, the service provider shall clearly, comprehensibly and unambiguously present a potential recipient of the service with the data and notifications on:
1) The procedure that is to be followed when concluding the contract;
2) The contractual provisions;
3) The terms of business, if they are an integral part of the contract;
4) The languages in which the contract may be concluded;
5) The codes of conduct according to which the service providers operate and information on how those codes can be consulted electronically.
Prior to concluding the contract, the service provider shall provide a potential recipient of the service with the technical means for identifying and correcting data input errors in the message before it is submitted or sent.
The contracting parties, who are not consumers, can explicitly agree on derogation from the provisions of paras. 1 and 2 of this Article in their mutual contractual relations.
The provisions of paras. 1, 2 and 3 of this Article shall not apply to the contracts concluded by electronic mail, i.e. other means of personal communication conducted electronically.
Article 13
The service provider shall ensure that the text of the contract and provisions of terms of business which are an integral part of the contracts concluded in electronic form, are available to the service recipients in a manner that enables their storage, reuse, and reproduction.
Article 14
The service provider shall confirm the receipt of an electronic message containing an offer or acceptance of the offer for contract conclusion, without any delay, by electronic means, in a separate electronic message.
The contracting parties, who are not consumers, can explicitly agree on derogation from the provisions of paragraph 1 of this Article in their mutual contractual relations.
The provisions of paras. 1 and 2 of this Article shall not apply to contracts concluded by electronic mail, i.e. other means of personal communication conducted electronically.
Article 15
A contract in electronic form shall be deemed concluded at the moment when the offeror receives the electronic message, which contains a statement of acceptance, by the offeree.
An offer and acceptance of the offer, as well as any other statement of will dispatched by electronic means, shall be considered received once the party to whom they have been addressed is able to access them.
IV LIABILITY OF SERVICE PROVIDER
Article 16
The service provider who transmits electronic messages handed over by the recipient of the services, shall not be liable for the content of the sent message sent and for its forwarding, if the provider:
1) Did not initiate the transmission;
2) Did not make a selection of data or documents being transmitted;
3) Did not exclude or modify the data contained in the message or documents;
4) Did not select the receiver of the transmission.
The transmission of messages and provision of access to the messages referred to in paragraph 1 of this Article must be conducted in a manner that enables the automatic, intermediate and transient storage of the messages transmitted and the data contained therein, and they must be transiently stored solely for the period of time necessary for the transmission of messages.
The provider of the information society services who is transmitting the electronic messages handed over by the recipient, shall, in the course of provision of the information society service and for a minimum of 30 days upon cessation of service provision, keep the data on the recipient of the information society services, and in particular, the IP address data from which the recipient accesses the information society services of that subject provider.
Article 17
A service provider who transmits the data entered by a recipient of the service via a communication network, shall not be liable for the automatic, intermediate and temporary storage that serves solely for the more efficient forming of the transmission of the data required by other recipients of the service, if the provider:
1) Does not modify the data;
2) Complies with the conditions for access to data;
3) Acts in compliance with the rules regarding the updating of the data;
4) Acts in compliance with the allowed use of technologies for data collection;
5) Removes or disables access to the data he/she has stored immediately upon obtaining actual knowledge of the fact that the data have been removed from transmission via network, or access to them has been disabled, as well as where a court, i.e. another competent authority, has ordered their removal or disabling the access.
Article 18
The service provider who stores the data provided by the service recipient, at the request of the service recipient, shall not be liable for the contents of the data stored, if the provider:
1) Neither knew nor could have known of prohibited activity of the service recipient or of the content of the data;
2) Immediately upon obtaining actual knowledge of prohibited activity or data, removes or disables access to such data.
The provisions of paragraph 1 of this Article shall not apply in cases where a recipient of the service is a person in any way dependent on the service provider (associated companies in terms of the law governing the status of companies).
Article 19
The service provider who, via electronic forwarding, enables access to the data of another service provider shall not liable for such information, if he/she:
1) Neither knew nor could have known of prohibited activity of a recipient of the service or of the data content in such information;
2) Immediately upon obtaining knowledge that it is a case of prohibited activity or data, removes or disables access to data.
Article 20
At the occasion providing the information society services, the service provider shall not be obliged to examine the data that he/she stored, transmitted or made available, i.e. examine the circumstances that would refer to prohibited activity of a recipient of the service.
The service provider must notify the competent state authority if he/she has reasonable doubt that:
1) By using his/her service, a recipient of the service is pursuing prohibited activities;
2) A recipient of his/her service has provided a prohibited piece of data.
The service provider shall, pursuant to the relevant judicial i.e. administrative act, disclose any data on the basis of which it would be possible to identify or prosecute criminal offenders, i.e. to protect the rights of third parties.
The notification of prohibited activity or piece of data based on which the service provider is acting within the meaning of Article 18, paragraph 1, item 2) and Article 19, paragraph 1, item 2) of this Law, must contain the data on the sender of the notification, precise description of the place on the website, i.e. other electronic presentation in which such prohibited piece of data appears, as well as an explanation why it is considered prohibited.
The provider of the information society service shall remove the prohibited content without delay, and within two business days at the latest, from the day of reception of the act rendered by the competent authority for application and action in line with the law whose provision was violated, ordering him/her to remove the prohibited content. The competent authority shall render the act ex officio or at the request of the party.
At the request of a third party, the information society service provider shall, without delay, and within two business days at the latest from the day of reception of the request by such person, remove the prohibited content, unless he/she deems that the published content is not in contradiction with the provisions of the law. In such case, the information society service provider may address the authority competent for application and action in line with the law, and request that the competent authority determines whether in the specific case, the provisions of the law have been violated, due to which the content needs to be removed.
The act of the competent authority, referred to in paras. 5 and 6 of this Article, whereby the information society service provider is ordered to remove the prohibited content, must contain a precise description of the location on the website, i.e. other electronic presentation where such prohibited content appears, as well as the explanation why it is deemed prohibited.
Supervising the Application of Law
Article 21
Supervising the application of this Law shall be carried out by the ministry in charge of trade and services, i.e. ministry in charge of electronic communications and information society.
The ministry in charge of trade and services shall carry out the inspection supervision of the application of this Law through market inspectors, whereas the ministry in charge of electronic communications and information society shall carry out such inspection supervision through the inspectors for the information society services, in line with this Law and the regulations governing the inspection supervision.
The inspector for the information society services shall inform the operator of electronic communications that the measure, referred to in Article 5a of this Law was imposed and shall issue the order to the operator, based on which the operator shall disable access to the services of the information society service provider whose registered office is in a European Union member state.
The electronic communications operator shall act upon the order of the inspector from paragraph 3 of this Article and disable access to the services of the service provider whose registered office is in a European Union member state, in line with its technical capacities.
For the purpose of supervision performance, the service providers shall, without delay, present or provide the required data and documentation related to the subject of supervision, to the authorized persons of the authorities referred to in paragraph 2 of this Article.
For the purpose of application of this Law, in the part referring to the removal of prohibited content, the authorities competent for the application and enforcement of the law, shall cooperate with the market inspection and be notified of the irregularities and violations of the law that they have identified. In the course of inspection supervision, the market inspector shall check whether the provider of the information society service is acting in line with the act of the authority competent for application and enforcement of the law whereby he/she was ordered to remove the prohibited content.
Measure of Limiting the Provision of Information Society Services
Article 21а
Upon the request of an entity whose rights have been infringed, the court may impose a measure to limit the provision of information society service, if the claimant makes probable the existence of infringement, i.e. onset of irreparable damage.
By means of the measure referred to in paragraph 1 of this Article, the court may order the removal of the disputed content, prohibition of the activities that have led to the infringement of rights, i.e. other form of protection proportional to the aim sought to be achieved by such a measure.
All service providers who transmit, store or enable access to the data to which the measure refers, shall follow the order set by the measure referred to in paragraph 1 of this Article.
The rules on interim measures shall apply mutatis mutandis to the procedure, competence and conditions for imposition of the measure referred to in paragraph 1 of this Article, in accordance with the law regulating enforcement and security interest.
Article 22
A service provider - legal person shall be fined with RSD 100,000 to RSD 1,500,000 for a midemeanour:
1) If, prior to concluding a contract, he/she fails to provide a potential recipient of the services with the prescribed data and notifications in a comprehensible and unambiguous manner (Article 12, paragraph 1);
2) If he/she fails to enable access to the text of the contract and terms of business in a manner that allows a recipient of the service to store, reuse and reproduce them (Article 13);
3) If he/she fails to remove or to deny access to the data he/she stored, immediately upon gaining knowledge that the data were removed from transmission via network or that access to them was denied, as well as when the court, or other competent authority ordered for their removal and disabling access (Article 17, paragraph 1, item 5);
4) If he/she fails to remove or to deny access to the data, immediately upon gaining information that it is a case of inadmissible action or data (Article 18, paragraph 1, item 2);
5) if he/she fails to remove or to deny access to a piece of data, immediately upon gaining knowledge that it is a case of prohibited conduct or piece of data (Article 19, paragraph 1, item 2);
6) If he/she fails to inform the competent state authority of the prohibited activities or data of the recipient of its service or fails to present all data, in line with the appropriate court, i.e. administrative act (Article 20, paras.2 and 3);
7) If he/she fails to remove the prohibited content in line with the act of the authority competent for the application and enforcement of the law (Article 20, paras. 5 and 6);
8) If he/she, without delay, fails to present or provide the required data or documentation for the purpose of conducting supervision (Article 21, paragraph 5).
A responsible person of the legal person shall be fined with RSD 10,000 to RSD 150,000 for actions referred to in paragraph 1.
In case the misdemeanour referred to in paragraph 1 of this Article is committed by the service provider - sole trader, he/she shall be fined with RSD 10,000 to RSD 300,000.
In the event of particularly serious violations or repeated violations referred to in paragraph 1 of this Article, a ban on performing the activity may be imposed on the legal person for a period of three to six months.
A service provider - legal person shall be fined with RSD 100,000 for a misdemeanour if:
1) He/she fails to provide the recipients of the service and the competent authorities of state administration with prescribed information, in the form and manner that is directly or constantly available (Article 6);
2) He/she acts contrary to Article 8 of this Law.
A responsible person of a legal person shall be fined with RSD 10,000 for actions from paragraph 5 of this Article.
Where the misdemeanour from paragraph 5 of this Article has been committed by a service provider - sole trader, he/she shall be fined with RSD 20,000.
The electronic communications operator - legal person shall be fined with RSD 50,000 to 1,000,000 for a misdemeanour, if failing to act upon the order of the inspector for the information society services, referred to in Article 21, paragraph 3 of this Law.
A responsible person of the legal person shall be fined with RSD 10,000 to RSD 150,000 for the conduct referred to in paragraph 8 of this Article.
In case the misdemeanour from paragraph 8 of this Article is committed by the electronic communications operator - sole trader, he/she shall be fined with RSD 10,000 to RSD 300,000.
Article 23
This Law shall enter into force on the eighth day following the date of publication in the "Official Herald of the Republic of Serbia".
Independent Article of the Law on Amendments and Additions to the Law on Electronic Commerce
("Off. Herald of the RS", No. 52/2019)
Article 10
The piece of secondary legislation referred to in Article 2 of this Law shall be passed until the accession of the Republic of Serbia to the European Union.
This Law shall enter into force on the eighth day from the day of publication in the "Official Herald of the Republic of Serbia", except for the provisions of Article 2 of this Law (new Article 5a) and Article 8 of this Law (in the part of the amended Article 21, paras. 3 and 4), which shall become applicable from the date of accession of the Republic of Serbia to the European Union.