After final approval in Congress of Sustainable Economy Act, which incorporates what is known as Sinde Act, there are a series of questions about its possible effects.
- "When you start to apply the law? Is there a calendar of deadlines?
terms of timing for full functionality and applicability, we must take into account is missing its publication in the Official Gazette, the passage of the "vacatio legis" is established (usually 20 days), the adoption of the amendment Organic Law of Judicial Power that empowers judges and still in the Senate, and the adoption of the Rules of Section II, the appointment of its members and the provision of staff and budget.
is, in total I estimate that no less than 3 months to start having some practical effect of law. Therefore there is something today for tomorrow.
- How important is the profit of the web? Are there websites that can not be brought to the SS?
Web pages that are non-profits in their business, not an economic activity can not be regarded as providers of information society to the effects of L 34/2002 on y Services Information Society (LSSI), therefore fall outside the scope of the Act Sinde, and can only providers.
Article 158.4 of the IPA indicate that:
"The second section may adopt the means to interrupt a s ervice of the information society that violates intellectual property rights or to remove content that violates the these rights if the provider , directly or indirectly, acting profit or has caused or is likely to cause property damage. "
If a blog or website is advertising a service provider and therefore may be required, acting as profit "O" (and the conjunction this is essential) the potential to cause material injury.
So any site that receives some funding resulting from their activity is subject to this amendment.
So the only sites that would remain outside blogs and websites are free and without advertising.
- How will it affect the web of links?
reference links to the websites of , as has been stated repeatedly, we can distinguish between two types of sites.
1 - Those sites that have been tried at some point and have been acquitted by the courts and those that are in the midst of legal proceedings:
The first will be absolutely protected, except that the officials responsible for Section II want to commit a crime of trespass, since the judges have already determined that their conduct does not violate the intellectual property, one aspect that can be analyzed by the SS.
The latter shall enjoy the prejudicialidad against the administrative procedure, so neither will be brought to the SS.
2 - Those webs of links that have not undergone any judicial process .
In principle these are the affected, according to public statements by politicians, by the application of the rule. Effectively run the risk that the SS to initiate a case against them and order the closure or removal of content.
While
be seen whether the judge is limited to considering only those aspects that the standard allows (the allocation of fundamental rights of Article 20 EC) to approve the measure and also addresses the merits of the question which is a real possibility, but it depends on the judge.
These sites, if any, may be at the administrative closing and having to resort to the High Court for a review of the administrative act. After that process, probably, the court decides that the act is void and ordered the lifting of the measures taken.
- Does it matter that the web server is in Spain or abroad?
The scope of the LSSI provides that the same shall apply:
2 - to those established in a state European Union and European Economic Area where they concern intellectual property (Article 3 LSSICE )
3 - and those in third countries where their services are directed specifically to the English market and also without prejudice that may interrupt the service providers of intermediation services (ISPs such as Telefonica) ( Articles 4 and 11.2 LSSICE )
Therefore, wherever you are the server if SS decides to withdraw the content or stop a service, you can .
In my opinion it is better to be in Spain and to appear in the proceedings to challenge it and obtain a favorable resolution services carried out. If the provider does not appear at the procedure that will also see limited their possibilities for defense.
- Can be brought before the Constitutional Court the law?
Yes, but the procedure is quite limited.
There are two mechanisms in the Constitution that a law be declared unconstitutional, on one hand the question of unconstitutionality and second, the constitutional complaint.
Appeal of unconstitutionality ( Article 162.1 of the Constitution ):
"To bring the constitutional challenge, the Prime Minister, the Ombudsman, fifty Deputies, fifty Senators, the Executive body of the Autonomous Communities and, where appropriate, the Assemblies of the same. "
incontitucionalidad Question ( Article 163 of the Constitution ):
When a court considers, in a process that a rule with the force of law applicable to the case, whose validity depends on the fault can be contrary the constitution, bring the matter before the Constitutional Court in the cases, as with the effects established by law, in no event shall suspension.
Therefore only such persons and in such cases may arise. Initiatives are not valid or private citizens led by associations.
Although in this case the most viable is that in the first procedure that comes raises the question of unconstitutionality before the judge to resolve.
0 comments:
Post a Comment