Belgium: Information And Communication Technologies Law Flash

1. U.S. And EU Websites

It appears from a comparative study of privacy protection on 751 Internet sites for consumers by Consumer International, the global federation of 263 consumer organizations, that many US and EU sites do not comply with international standards on data protection. Surprisingly, despite strict European legislation on protection of personal data, the study revealed that some of the best privacy policies were presented on US sites. European legislation in particular requires that transfers of personal data to non-EU countries should take place only to such countries which provide an "adequate" level of privacy protection. Given the sectoral approach in the US, relying on legislation, regulation and self-regulation, the EU was worried that US companies and organisations would not meet "adequate" protection standards. For that reason, the so-called "Safe Harbor" Principles were designed in order to govern the processing of data transfers between the EU and the US.

2. Belgian Privacy Commission

The Belgian Privacy Commission issued an advice (nr. 34/2000) on the protection of personal data in the framework of e-commerce on November 22, 2000. This advice is essentially directed at professionals and governmental authorities on the legal principles applicable to the use of personal data in electronic transactions. Important issues considered by the Commission include that privacy legislation applies to individual profiles constituted through the use of cookies or a permanent IP (Internet Protocol) address. The Commission also referred to legal doctrine concerning the situation where cookies are placed on the hard disk of a Belgian resident and those cookies stock personal data which are sent to a recipient in a foreign country. In that case, the Belgian resident may rely on Belgian privacy legislation. Finally we note that the long awaited Royal Decree, necessary for the law of December 11, 1998 to enter into force (implementing the European Directive on protection of personal data), is expected to be issued within several months, according to the Belgian Privacy Commission.

3. Jurisdiction

Internet by its nature is the centre-stage for cross-border disputes. Two questions must be addressed in order to solve such transnational conflicts: which jurisdiction is competent, and which law is applicable. The Brussels Convention of 1968 sets the rules applicable in the E.U. in relation to jurisdictional issues. This Convention was recently adapted to European standards through the EU Council Regulation nr. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The purpose of this Convention is to determine which jurisdiction should rule a conflict spread over different member states. A major issue concerns the competent jurisdiction for cross-border consumer transactions by electronic means. In this respect, the Regulation allows consumers to bring civil and commercial disputes against a merchant or service provider through a website before the courts of their home country under certain circumstances, e.g. when the business activity is 'directed to his country'. However for a consumer to be able to sue in his home country, it is apparently not sufficient that a website is simply accessible from his home country nor that the local language or currency of his home country is available. In fact, the offer on the website must invite the consumer to conclude a distance-selling contract and such contract must in effect have been concluded at a distance. To determine the courts' jurisdiction is only the first step of the process. Once a competent court is determined, the applicable law must be pinpointed. Between companies and/or physical persons located in the EU, this issue falls within the scope of the Rome Convention of 1980, which sets forth special rules aiming at consumer protection. In this context, similar criteria can be used to determine whether or not an activity is directed to a country through the website. The Rome Convention is soon to be adapted and implemented on a European level.

The adoption of the long awaited Directive on certain aspects of copyright and related rights in the information society is still in process. Following the Council common position reached on September 28, 2000 and the Commission assessment of October 20, 2000, the proposal is still awaiting second reading by the European Parliament. This Directive is necessary in order to adapt current copyright law to new forms of exploitation such as multimedia products. Two aspects of this Directive should particularly be noted. First of all, it defines the limitations to the rights of reproduction and of communication or making available to the public, thus certain acts of reproduction are permitted without remuneration (fair use exception), e.g. caching and browsing. Furthermore, the Directive seeks to harmonize on an European level, the legal protection of the integrity of technical identification and protection schemes. In that sense, the development of effective technological means for tagging and protecting copyright works is promoted. This issue remains the most difficult in political point of view, since rigid technical protection mechanisms could render obsolete the existing allowed copyrights of libraries and the allowed private copy.

Unbundling local loop comes into force

On 18 December 2000, the European Parliament and the Council issued the Regulation (EC) 2887/2000 on unbundled access to the local loop. According to the EU Regulation, Belgacom S.A., which until today is the sole Belgian operator which has been designated by the national telecommunications regulatory authority BIPT as having a significant market power in the provision of fixed public telephone networks and services, shall from 31 December 2000 onwards meet reasonable requests from other telecommunications operators for unbundled access to its local loop (twisted copper pair circuit only). This access should be granted under transparent, fair and non-discriminatory conditions.

Belgacom published a reference offer for unbundled access to its local loop and related facilities annually for that purpose. The pricing structure shall be set on the basis of cost-orientation. By introducing the unbundling of the local loop in the Belgian telecommunications law, the Belgian authorities only referred to the EU Regulation, which is directly applicable in Belgium and gave the supervision of the unbundling local loop implementation in Belgium to: (i) the Chamber for Interconnection, Special Access and Shared Use which will be competent for litigation in this matter and (ii) the BIPT, which will have to ensure non-discrimination, fair competition, economic efficiency and maximum benefit for end users. The BIPT may impose changes in the reference offer (including prices).

The BIPT is currently reviewing and negotiating the Belgacom proposed reference offer. The BIPT comments and approval of the reference offer is not to be expected before the second half of February 2001