Member Article

GENERAL

1. How can the government’s attitude and approach to internet issues best be described?
The attitude of the Belgian government can be described as positive and their approach is proactive. In 2003, the Belgian authorities announced the introduction of ‘e-government’. The most important initiatives were the introduction of electronic identity cards (e-ID) for all Belgian citizens over 12, and the federal government’s information web-portal. The e-ID cards are smart cards that can be used by Belgian citizens to electronically identify themselves and authenticate their identities. The e-ID cards are also equipped with electronic-signature software, an attempt by the government to encourage e-commerce. Additional government initiatives aim to make citizens more familiar with the internet. For example, the ‘Internet for all’ programme provides government grants towards the cost of buying PCs and internet access, and the Electronic Communications Act of 13 June 2005 requires ISPs to provide schools, hospitals and public libraries with reduced-cost internet access.

LEGISLATION

2. What legislation governs business on the internet?

There is no legislation specifically addressing (business on) the internet. The following Acts lay down rules that can have an impact on business on the internet:
• the Trade Practices Act of 14 July 1991;
• the Personal Data Processing and Privacy Act of 8 December 1992 and the Royal Decree of 13 February 2001, which implemented this Act;
• the Copyright and Associated Rights Act of 30 June 1994;
• the Software Protection Act of 30 June 1994;
• the Brussels-Capital Region Electronic Communications and Broadcasting Act of 30 March 1995;
• the Telecommunications and Electronic Signatures in Judicial and Non-judicial Proceedings Act of 20 October 2000;
• the Computer Crime Prevention Act of 28 November 2000;
• the Electronic Signatures and Certification Services Act of 9 July 2001;
• the Collective Labour Agreement No. 81 on the protection of employees’ electronic communications of 26 April 2002;
• the Electronic Funds Transfer Transactions Act of 17 July 2002;
• the French Community Decree of 27 February 2003 on radiobroadcasting;
• the Information Society Acts of 11 March 2003 (two Acts);
• the Royal Decree regulating advertising by electronic communications of 4 April 2003;
• the Conditional Access Information Society Act of 12 May 2003;
• the Anti-Domain Name Piracy Act of 26 June 2003;
• the Electronic Communications Act of 13 June 2005;
• the Flemish Radio and Television Broadcasting Consolidated Decrees of 4 March 2005;
• the German-speaking Community’s Radio Broadcasting Decree of 27 June 2005;
• the Trusted Third Parties Act of 15 May 2007; and article 314bis of the Belgian Criminal Code on wiretapping.

REGULATORY BODIES

3. Which regulatory bodies are responsible for the regulation of ecommerce and internet access tariffs and charges
There is no specific regulatory body for e-commerce. The Ministry of the Economy (www.mineco.fgov.be) deals with fair trade practices on the internet (pricing, advertising, etc). Dataprotection issues related to the internet or e-commerce are handled by Belgian’s data protection authority (www.privacycommission.be). The regulation of internet access tariffs is done by the Belgian Institute for Post and Telecommunications (www.bipt.be).

JURISDICTION

4. What tests or rules are applied by the courts to determine the jurisdiction for internet-related transactions (or contentions) in cases where the defendant is resident or provides goods or services from outside the jurisdiction?
Different rules apply, depending on whether the defendant is resident in, or provides goods or services from, an EU or a non-EU country. EU (except Denmark) Where a defendant is resident in, or provides goods or services from an EU country, Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters applies. In a contractual business-to-business conflict, in the absence of a contractual choice of law, the defendant can be brought before the court of his domicile or registered office or before the court of the place of performance of the obligation.
In contractual business-to-consumer matters, in the absence of a valid contractual choice of law, the consumer can only be brought before the courts of his domicile; professionals can be brought either before the court of the consumer’s domicile, or before the court of their own domicile or registered office. In matters relating to tort, delict or quasi-delict, the courts of the place where the harmful event occurred (or may occur) have jurisdiction. This rule allows Belgian courts to easily confirm their jurisdiction, especially with respect to advertising.

Denmark
Defendants residing in, or providing goods or services from, Denmark are subject to the Brussels Convention of 27 November 1968. The rules of this Convention are quite similar to the ones in Council Regulation No. 44/2001. Non-EU If the defendant is resident in a non-EU country, the Lugano Convention will apply for the EFTA member states.
For other countries, bilateral conventions or the Act of 16 July 2004 will apply. As a general rule, and subject to a number of exceptions, the courts of the defendant’s domicile have jurisdiction.

CONTRACTING ON THE INTERNET

5. Is it possible to form and conclude contracts electronically? If so, how are contracts formed on the internet? Explain whether ‘click wrap’ contracts are enforceable, and if so, what requirements need to be met?
As a rule, a contract is concluded by the mere agreement of the contracting parties without any formalities (principle of consensualism). In the absence of mandatory formalities, contracts concluded electronically are, in principle, valid. If, in exceptional circumstances, an electronic agreement is made subject to formalities, the Information Society Act of 11 March 2003 (implementing the EU E-commerce Directive 2000/31), provides that any legal or regulatory formality necessary to validly conclude electronic agreements, is complied with at the moment the functional characteristics of such a formality are respected. Although the conclusion of an agreement by electronic means does not affect its validity, such agreements do often have a lesser evidentiary value, without however
being of no evidentiary value at all. The evidentiary value of an electronic agreement can be increased by using (advanced) electronic signatures, but the use of this technique is far from widespread, especially in business-to-consumer relationships.
‘Click wrap’ agreements are valid as such, but in order to be enforceable against the customer, the latter must have had the possibility to consult the terms and conditions before entering into the agreement. Also, click wrap agreements do not have the same evidentiary value as agreements signed by hand, but from a practical point of view, the courts will not object to this kind of agreement unless its validity or contents is disputed.

6. Are there any particular laws that govern contracting on the internet? Do these distinguish between business-to-consumer and business-to-business contracts?
The Information Society Act of 11 March 2003 governs the conclusion of agreements via electronic means, for example via the internet. This act contains a number of obligations with respect to the provision of information when entering into an electronic agreement, safeguards to detect input errors, the confirmation and storage of the electronic agreement,
etc. The Act distinguishes between business-to-consumer and business-to-business contracts, to the extent that, in business-to-business contracts, the parties are free to contractually deviate from some of the aforementioned obligations. Business-to-consumer contracts on the Internet are also subject to the rules on distant sales (Trade Practices Act of 14 July 1991). This Act specifies a comprehensive duty on the seller to provide information to the consumer and enshrines the consumer’s right to withdraw from the sale within seven days.

7. How does the law recognise or define digital or e-signatures?
There are two main categories of e-signatures under Belgian law:
• electronic signatures that are always assimilated to a handwritten signature and e-signatures that might (but will not always be) assimilated
• to a handwritten signature.

The first categoryare ‘qualified electronic signatures’. These are admissible as evidence in legal proceedings and shall always receive the same legal consequences as a handwritten signature in similar circumstances. A ‘qualified electronic signature’ is ‘an advanced electronic signature accompanied by a qualified certificate and created by a secure-signature-creation device’ (Act of 9 July 2001). A signature is called ‘advanced’ when it:
• is linked to the signatory in a unique way;
• is capable of identifying the signatory;
• is created through means that the signatory can keep under his exclusive control; and
• is linked to the data on which it is based in such a way that any subsequent change to the data can be detected.
With the currently available technology, only digital signatures can be categorised as ‘qualified electronic signatures’.

The second category of e-signatures is not always assimilated to a handwritten signature. Their admissibility in court and legal value will depend on the court’s assessment of whether the technique used fulfils the following conditions (Act of 20 October 2000), or not:
• it must permit the identification of the signatory (identification);
• it must permit the attribution of the electronic data that constitute the signature to a particular person (non-repudiation);
and
• the electronic data that constitute the signature must not have been changed (integrity).
In practice, when the courts are asked to rule on an agreement, they will only apply this test if one of the parties challenges the validity of the agreement.

8. Are there any data retention or software legacy requirements in relation to the formation of electronic contracts?
There are a few rules that indirectly impose data retention requirements in relation to the formation of electronic contracts. The Information Society Act of 11 March 2003 requires that the information society service provider must keep evidence of having fulfilled its duty of information and having issued an order confirmation.
• The Royal Decree of 4 April 2003 regulating advertisements by electronic communications requires information society service providers to keep a list of persons who have indicated that they do not wish to receive advertisements.
• With regard to distant contracts, the seller must be able to prove that he has fulfilled all the requirements imposed by the distant sales rules.

Further, the Electronic Signatures and Certification Services Act of 9 July 2001 requires providers of qualified certificates to record all relevant information about each qualified certificate and to retain it for 30 years, in particular for the provision of evidence in legal proceedings.

SECURITY

9. What measures must be taken by companies or ISPs to guarantee the security of internet
transactions?
The Electronic Communications Act of 13 June 2005 requires providers of electronic communications services and providers of software for electronic communications to implement state-of-the-art technical and organisational measures to ensure the security of their networks. They also have to ensure that their customers have the appropriate
means to prevent unsolicited electronic communications. Should this security be breached, they must take all necessary measures to inform the competent authorities and their customers as soon as possible. The Belgian data protection authority has outlined several ‘reference measures’ designed to guide data controllers in their adoption of appropriate security measures when processing personal data.

10. As regards encrypted communications, can any authorities require private keys to be made available? Are certification authorities permitted? Are they regulated and are there any laws as to their liability?
The use of cryptographic technology is allowed. Examining magistrates are entitled to request the release of encryption keys only as part of a current criminal investigation. Electronic certification services are governed by the Act of 9 July 2001. Under this Act, the offer of certification services is free and cannot be subject to a licence, authorisation or notification. However, if a certification service provider wishes to issue qualified certificates, he has to fulfil more qualitative requirements and to notify the Ministry of the Economy. In claims for damages from parties who have reasonably relied on an digital certificate issued by a certification service provider, the provider can be held liable in the following circumstances (Act of 9 July 2001): the data on the certificate is not accurate, the identity of the signatory was not properly checked, or the data needed for making and verifying an electronic signature generated by the certification service provider cannot be used in a complimentary way. The certification service provider can exonerate itself from any liability if it proves it did not act negligently.

DOMAIN NAMES

11. What procedures are in place to regulate the licensing of domain names? Is it possible to register a country-specific domain name without being a resident in the country?
Applications for Belgian domain (.be) names have to be made via one of the registered agents of DNS Belgium, the Belgian domain-name authority. Domain names are allocated on a ‘first come, first served’ basis. There is no requirement for the applicant of a Belgian domain name to be resident in Belgium.

12. Do domain names confer any additional rights (for instance in relation to trademarks or passing off) beyond the rights that naturally vest in the domain name?
The registration of a domain names does not in itself confer any additional rights, but the use of a domain name can constitute rights as a sign or as a tradename.

13. Will ownership of a trademark assist in challenging a ‘pirate’ registration of a similar
domain name?
Ownership of a trademark can assist in challenging a ‘pirate’ registration of a similar domain name. In the event of abusive domain name registrations, the Anti-Domain Name Piracy Act of 26 June 2003 empowers the courts to order the transfer of ‘.be’ domain names or of other domain names held by a person with a domicile or registered office in Belgium. Relief against abusive domain name registrations in other circumstances can be sought through the Trade Practices Act of 14 July 1991.

ADVERTISING

14. What rules govern advertising on the internet?

• Trade Practices Act of 14 July 1991.

• Information Society Act of 11 March 2003

• Sector-specific ‘soft law’