On 1 December 2015, the Supreme Court confirmed a judgment of the Court of Appeal of Antwerp (the "Court of Appeal") which had imposed a substantial fine on Yahoo! for failing to comply with the obligation to cooperate with Belgian law enforcement officials in an investigation of fraud committed on the basis of Yahoo! e-mail accounts.
The case brought before the Supreme Court concerned a fraudulent purchase of, and subsequent failure to pay for, electronic equipment from a shop in Dendermonde, Belgium (See, VBB on Business Law, Volume 2009, No 4, p. 9, available at www.vbb.com for the decision at first instance and VBB on Business Law, Volume 2011, No 1, p. 11, available at www.vbb.com for the judgment on appeal).
Yahoo! Inc, a company registered in California, US, had been requested to hand over the IP addresses associated with e-mail accounts of alleged criminals registered to Yahoo!'s e-mail service but refused to comply. Yahoo! claimed that Belgium was imposing its criminal laws extraterritorially. However, the Court of Appeal held that the accusations of extraterritoriality could only be accepted had there been a request for the handover of data or objects which are located in the USA and present no territorial link with Belgium, and if the holder of these objects or data is not accessible in Belgium.
The Court of Appeal held that Yahoo! is territorially present in Belgium through its active participation in the Belgian economy and is thus voluntarily submitting itself to the jurisdiction of the Belgian authorities. In particular, the Court of Appeal maintained that Yahoo! participated in the Belgian economy through the use by Yahoo! of the domain name "www.yahoo.be", the use of the local language(s) on that website, pop-up advertisements linked to the location of the users and accessibility in Belgium of Belgium-focused customer services. The Court of Appeal thus concluded that Yahoo!'s refusal to provide IP addresses of the alleged criminals violated Belgian criminal procedure law.
For its part, the Supreme Court confirmed all of the Court of Appeal's considerations, essentially linking them to the objective territoriality principle.
The Supreme Court started by recalling that, as a general rule, a state can only take coercive measures to enforce its laws in its own territory. A State is considered as taking a coercive measure in its own territory when there is a sufficient connecting factor between its territory and the measure in question. What qualifies as a sufficient territorial connecting factor is determined by, inter alia, the nature and scope of the coercive measure. The Supreme Court went on by noting that the criminal sanction provided for in Article 46bis § 2 of the Belgian Code of Criminal Procedure is only intended to force operators of an electronic communications network or providers of an electronic communications service active on the Belgian territory to cooperate by issuing identification information following a crime whose investigation falls within the competence of the Belgian criminal law bodies. The above provision contains compulsory measures of limited scope, the implementation of which does not require an intervention outside the Belgian territory. The Supreme Court further noted that Article 3 of the Belgian Criminal Code explicitly stipulates that its provisions apply not only to offences committed by Belgians, but also to offences attributable to foreigners present on the Belgian territory. The offence defined in Article 46bis § 2, section 4 of the Code of Criminal Procedure is considered as being committed in the place where the requested data are to be received. Consequently, the operator or provider, which refuses to share this data, is punishable in Belgium irrespective of its place of establishment.
The Supreme Court concluded that (i) the measure consisting in the obligation to provide the data at issue is taken on the Belgian territory with regard to any operator or provider whose economic activity actively targets consumers in Belgium; and (ii) the Belgian judge, who condemns an operator or provider established abroad which refuses to comply with a measure taken in Belgium, does not exercise extraterritorial jurisdiction.
The Supreme Court dismissed Yahoo!'s appeal and thus confirmed the company's fine of EUR 44,000 for infringing Article 46bis § 2 of the Belgian Code of Criminal Procedure.
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