1. Implementation of the e- commerce directive in Belgium TAIEX– 26 October 2010 Geert Somers

2. Some facts Implementation in Belgium by law of 11 March 2003 Mostly literal implementation of the European Directive (some concepts not defined, some new definitions) Virtually no case-law, except on liability of intermediaries (two cases pending before the ECJ) Case law on information duties and spam in neighbouring countries A lot of websites do not fully comply with the information and transparency requireme nts 2

3. Discussion at time of implementation Discussion on the need to introduce separate rules for the online environment –no intend to discriminate between the online and analogue environment –nevertheless lack of coherence (form and content) –sometimes stricter requirements for online transactions need to send an acknowledgement upon receipt of an order analogue contracts are form-free…

4. 1. Transposition in Belgium Definitions: Some concepts of the Directive are not defined in the Belgian act (e.g. “coordinated field”) Some definitions have been adapted to existing concepts of Belgian law (e.g. “consumer”, “commercial communication”, “regulated profession”) Scope: identical Measures to promote language diversity or pluralism (art. 1.6 e-commerce Directive) not mentioned in the Belgian act Freedom of establishment: no prior authorisation (art. 4.2 e-commerce Directive): idem: exemption for conditions not specifically related to the information society service itself (e.g. security services) Rule of origin: exemptions in the law (insurance companies) or in other laws (pharmaceuticals)

5. 2.Information/transparency Information society service providers must –clearly and easily identify themselves –provide data allowing for quick contact and direct communication in any case mention of e-mail address required need to mention phone when services are only offered online? ECJ 16 October 2008, C-298/07: action by German consumer organisation; court concludes mention of phone number is not strictly required as long as an alternative to e-mail is offered (e.g. contact form, but response must be quick and customer may choose not to be contacted by e-mail only, such as by phone)

6. 3. E-mail marketing (1/2) Identifiability of commercial communication (art. 7.1 of the Directive) : original Belgian provision has been amended for more flexibility (no longer necessary to mention: “advertisement” in the subject field, unless where not immediately clear for recipient that messages is publicity) Opt-out versus opt-in (art. 7.2 of the Directive): replaced by transposition of art. 13 of Directive 2002/58/EC (prohibition to use e-mail marketing without prior consent – clear opt-in requirement) complex discussions with regard to implementation (e.g. can I ask prior consent by e- mail? – clarification by ministerial administration) Royal Decree of 4 april 2003 (art. 13 of Directive 2002/58/EC) exceptions to prior opt-in rule in case of contact data obtained in the context of selling a product or service and rules on data protection respected data exclusively used for giving information on similar products or services provided by the sender of the commercial message uncertainty with regard to exemption for “existing customers” (“context of a sale”, “similar products”)

7. E-mail marketing (2/2) time.lex study for the EC on threats of spam and spyware (2009) http://ec.europa.eu/information_society/policy/ecomm/doc/library/ext_st udies/privacy_trust_policies/spam_spyware_legal_study2009final.pdfhttp://ec.europa.eu/information_society/policy/ecomm/doc/library/ext_st udies/privacy_trust_policies/spam_spyware_legal_study2009final.pdf. Conclusions: –Belgian government aware of the dangers of spam, spyware and malicious software (defined tasks for FCCU, DPA, …; however, lack of budget …) –Belgium actively participates in the international campaigns and actions (LAP, CNSA, OECD) dealing with the topic –regretfully, unlike most countries no administrative body (ministry of economics, DPA) can actually sanction offences need to pass on file to public prosecutor not possible to act fast and efficient –competent authorities cooperate with foreign authorities (operation spam zombies, CNSA, London Action Plan, OECD anti-spam working group)

8. 4. Electronic contracts Belgian transposition restricted to mere confirmation of the principle of “functional equivalence” (UNCITRAL) supported by explicit definitions of “writing” and “signature” possibility to remove existing legal obstacles by government order Practice: many obstacles persist (e.g. problem of archiving) Role of e-government: use of electronic identity card for electronic commerce promotion of electronic procurement, electronic invoicing transposition of article 8 Services Directive (electronic point of single contact for foreign service providers – e.g. LIMOSA)

9. 5. Liability of intermediaries (1/2) Belgium literally implemented the provisions of the Directive (mere conduit, caching, hosting, no general obligation to monitor) Consequence: discussions about liability of other categories of intermediaries (e.g. search engine providers, content aggregators) Cooperation duty with competent authorities (art. 15,2 of the Directive) –requirement for hosting providers to provide the authorities with client identification information upon their request –Belgium: scope of application made larger in 2005 requirement for all intermediaries not only identification data, but all information useful for investigation of crimes Self-regulation: ISPA Belgium Code of conduct and Protocol between Ministry of Justice and ISPA Belgium

10. Liability of intermediaries (2/2) Case law on liability of ISPs: –discussion on duty of internet access provider to install filtering software to monitor traffic on P2P networks (Sabam vs. Scarlet – ECJ C-70/10) ECJ to decide whether court may impose preventive filtering of all electronic communication (entering and outgoing) without limitation in time at the ISP’s sole expense and whether court must apply proportionality principle when asked to rule on efficiency of measure –discussion on duty of internet hosting provider (social networking site) to install filtering software (Sabam vs. Netlog – ECJ C-360/10) ECJ to decide on same question as in Sabam vs. Scarlet but with focus on hosting provider which directive prevails: e-commerce or e-copyright?

11. 6. Supervision – Enforcement (1/2) Supervision by public authorities participation in http://www.econsumer.gov (international consumer protection and enforcement network)http://www.econsumer.gov creation of two specialised inspection teams (ministry of economics) publication of statistical results of inquiries by consumer associations Enforcement civil court action (“injunction order”) criminal sanctions breach of publicity rules sanctioned with a fine up to 50.000€; non-cooperation by ISPs with competent authorities in case of illegal information sanctioned with a fine up to 20.000€ administrative procedures electronic warning by minister of economic affairs or the competent civil servant to stop illegal practice within a set time settlement (payment of a fine stops criminal charges)

12. Supervision – Enforcement (2/2) e-Cops (www.ecops.be) –example of good practice –online reporting service to which the Internet user can report on the online report form crimes committed on or through the Internet. –report may trigger further action by the ministry of economics or by police and justice.

13. Ecops website

15. Questions 15

16. Contact information Geert Somers Attorney-at-law – Partner Tel +32 474 89 04 20 geert.somers@timelex.eu Affiliated Researcher ICRI (Interdisciplinary Centre for Law and ICT – www.icri.be)www.icri.be geert.somers@law.kuleuven.be Chairman legal Working Group ISPA Belgium (www.ispa.be)www.ispa.be 16