belgiquelex.be - Carrefour Bank of Legislation

15 DECEMBER 2013. - An Act to insert Book XII, "Right of the electronic economy" in the Economic Law Code, incorporating the definitions specific to Book XII and the provisions of the law specific to Book XII, in Books I and XV of the Economic Law Code (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - The Economic Law Code
Art. 2. In Book I^erTitle 2, of the Economic Law Code, reads as follows:
"Chapter 10. - Specific definitions in Book XII
Art. I.18. The following definitions are applicable to Book XII:
1° service of the information society: any service normally presumed against remuneration, remotely, electronically and at the individual request of a recipient of the service;
2° e-mail: any message in the form of text, voice, sound or image sent by a public communications network that can be stored in the network or in the terminal equipment of the recipient until the recipient receives it;
3° provider: any natural or legal person who provides a service of the information society;
4° established provider: an effective provider of economic activity through a permanent establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service is not such an establishment of the service provider;
5° recipient of the service: any natural or legal person who, for professional or non-occupational purposes, uses a service of the information society, in particular to seek information or make it accessible;
6° Advertising: any form of communication intended to promote, directly or indirectly, goods, services or the image of a business, organization or person with a commercial, industrial or artisanal activity or carrying on a regulated activity.
For the purposes of Book XII, do not constitute such advertising:
(a) information allowing direct access to the business, organization or person, including a domain name or e-mail address;
(b) communications developed in an independent manner, in particular when provided without financial counterpart;
7° Regulated occupation: any professional activity whose access or exercise or any of the terms and conditions of exercise is subordinated, directly or indirectly, by legislative, regulatory or administrative provisions, to the possession of a diploma, training title or a certificate of competence;
8° Protected service: one of the services of the information society, provided that it is provided by payment and on the basis of conditional access, or the provision of conditional access to the services referred to above, considered as a full service;
9° conditional access: any measure and any technical device that subordinates access to the protected service in an intelligible form to an individual prior authorization;
10° conditional access device: any equipment or software designed or adapted to allow access to a protected service in an intelligible form;
11° wrongful device: any equipment or software designed or adapted to allow access to a protected service in an intelligible form without the authorization of the service provider;
12° domain name: an alphanumeric representation of an IP digital address (Internet Protocol) that allows to identify a computer connected to the Internet; a domain name is registered under a corresponding top-level domain either as one of the generic domains (gTLD) defined by the Internet Corporation for Assigned Names and Numbers (ICANN) or as one of the country codes (ccTLD) under ISO-3166-1;
13° domain name registered under the domain BE: a domain name registered under the domain of first level corresponding to the country code ".be", which was assigned to the Kingdom of Belgium under ISO-3166-1. "
Art. 3. In the same Code, a Book XII is inserted, as follows:
"Book XII. - Law of the electronic economy
Part 1^er. - Some legal aspects of the information society
Section 1^er. - Preliminary provisions
Art. XII.1. § 1^er. Chapters 1^er 6 of this title transpose the provisions of Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 on certain legal aspects of the services of the information society, including electronic commerce, into the domestic market.
Chapter 4 also partially transposes the Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and user rights in relation to electronic communications networks and services, Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for ensuring the protection of consumers.
Chapter 7 transposes the provisions of Directive 98/84/EC of the European Parliament and the Council of 20 November 1998 on the legal protection of conditional access services and conditional access services.
§ 2. This title deals with some legal aspects of the information society's services.
It does not apply:
1° in the area of taxation;
2° to matters relating to the services of the information society covered by the legal or regulatory provisions concerning the protection of privacy and the processing of personal data;
3° to matters relating to agreements or practices governed by the law of agreements;
4° to the following activities of the information society services:
(a) notary activities to the extent that they involve direct and specific participation in the exercise of the public authority;
(b) the representation of a client and the defence of his interests before the courts;
(c) the activities of money games involving bets with monetary value in random games, including lotteries and bet transactions.
Section 2. - Fundamental principles
Section 1^re. - Principle of freedom of establishment
Art. XII.2. Access to the activity of a service provider of the information society and the exercise of the information society are not subject to any prior authorization or to any other requirement having an equivalent effect.
Paragraph 1^er is without prejudice to the authorization regimes that do not specifically and exclusively apply to the services of the information society or are governed by the authorization regimes provided for in Title III of the Act of 21 March 1991 on the reform of certain economic public enterprises.
Section 2. - Principle of free service delivery
Art. XII.3. The provision of information society services by a provider established in Belgian territory must be in accordance with the requirements applicable in Belgium.
The free movement, in Belgian territory, of the services of the information society provided by a provider established in another Member State is not restricted because of the requirements applicable in Belgium or in other countries.
Paragraphs 1^er and 2 address the specific or general requirements for the services of the information society and the service providers. They do not address the requirements for goods as such, their physical delivery or services that are not provided electronically.
Section 3. - Derogations to the principle of free service delivery
Art. XII.4. By derogation from Article XII.3, chapters IIIbis, IIIter, Vbis and Vter of the Act of 9 July 1975 relating to the control of insurance companies remain applicable.
By derogation from section XII.3, advertising for the marketing of shares of securities collective investment organizations referred to in section 105 of the Act of 4 December 1990 on financial transactions and financial markets is subject to the law of the marketing country.
Section XII.3 does not apply:
1° the freedom of the parties to choose the law applicable to their contract;
2° in respect of contractual obligations in contracts with consumers;
3° in respect of copyright and neighbouring rights, rights on topography of semiconductor products, sui generis rights on databases, industrial property rights;
4° with regard to the formal validity of contracts creating or transferring rights on real property, where such contracts are subject to mandatory form requirements in the Member State where the property is located;
5° with respect to the authorization of unsolicited advertisements transmitted by e-mail.
Section 3. - Information and transparency
Art. XII.6. § 1^er. Without prejudice to other legal and regulatory requirements for information, any provider of an information society service shall ensure easy, direct and permanent access for the recipients of the service and for the competent authorities at least the following information:
1° its name or its name;
2° the geographical address where the provider is established;
3° its contact information, including its e-mail address, allowing quick contact and direct and effective contact with it;
4° where applicable, the company number;
5° where the activity is subject to an authorization regime, the coordinates of the competent supervisory authority;
6° with respect to regulated professions:
a) the professional association or professional organization to which the provider is registered,
(b) the professional title and status in which it was granted,
(c) a reference to applicable professional rules and access;
7° in the case of an activity subject to the value added tax, the identification number referred to in section 50 of the Value Added Tax Code;
8° the codes of conduct to which it may be submitted as well as information on how these codes can be accessed electronically.
§ 2. Without prejudice to other legal and regulatory requirements for price indication, where the services of the information society mention prices, they are clearly and unambiguously indicated and specify, in particular, whether taxes and shipping costs are included.
Art. XII.7. § 1^er. Without prejudice to other legal and regulatory requirements for information, before the recipient of the service passes an electronic order, the service provider shall, at least, communicate the information referred to below, made in a clear, understandable and unambiguous manner:
1° the languages proposed for the conclusion of the contract;
2° the various technical steps to be taken to conclude the contract;
3° the technical means to identify and correct errors in data entry prior to the order being placed;
4° if the contract is archived or not by the service provider and whether it is accessible or not.
§ 2. Contractual clauses and general terms and conditions communicated to the recipient must be in a manner that allows the recipient to retain and reproduce them.
Art. XII.8. Before placing the order, the provider shall make available to the recipient of the service the appropriate technical means to identify and correct errors in the data entry.
Art. XII.9. When the recipient of the service passes an electronic order, the following principles apply:
1° the provider acknowledges receipt of the order of the recipient without undue delay and electronically;
2° the acknowledgement of receipt contains, inter alia, a summary of the order;
3° the order and the acknowledgement of receipt are considered to be received when the parties to which they are addressed may have access to it.
Art. XII.10. Parties that are not consumers may conventionally derogate from the provisions of Article XII.6, § 1^er8°, as well as articles XII.7, § 1^erXII.8 and XII.9.
The provisions of Article XII.6, § 1^er8°, of Article XII.7, § 1^er, Article XII.8 and Article XII.9, 1° and 2° are not applicable to contracts concluded exclusively by means of an electronic mail exchange.
Art. XII.11. In respect of consumers, proof of compliance with the requirements set out in sections XII.6 to XII.9 rests with the provider.
Section 4. - Advertising
Art. XII.12. Without prejudice to other legal and regulatory requirements for information, advertisements that are part of a service of the information society or that constitute such a service meet the following principles:
1° upon receipt, advertising, given its overall effect and including its presentation, is clearly identifiable as such. If not, it includes the reference "publicity" in a legible, apparent and unambiguous manner;
(2) the natural or legal person on whose behalf the advertisement is made is clearly identifiable;
3° Promotional offers, such as price reduction ads and joint offers, are clearly identifiable as such and the conditions to benefit from them are easily accessible and presented in a precise and unequivocal manner;
4° Contests or promotional games are clearly identifiable as such and their participation conditions are easily accessible and presented in a precise and unequivocal manner.
Art. XII.13. § 1^er. The use of e-mail for advertising purposes is prohibited, without the prior, free, specific and informed consent of the recipient of the messages.
On a joint proposal by the Minister and the Minister who has the Justice in his office, the King may provide for exceptions to the prohibition provided for in paragraph 1.
§ 2. When sending any advertisement by e-mail, the provider:
1° provides clear and understandable information regarding the right to object to advertising for the future;
2° indicates and makes available an appropriate means to effectively exercise this right electronically.
On a joint proposal by the Minister and the Minister who has the Justice in his office, the King determines the modalities according to which providers respect the will of the recipient to no longer receive advertisements by e-mail.
§ 3. When sending ads by email, it is forbidden:
1° to use the e-mail address or identity of a third party;
2° to falsify or hide any information to identify the origin of the e-mail message or its transmission path.
3° to encourage the recipient of messages to visit websites violating Article XII.12.
§ 4. Proof of the solicited nature of e-mail advertisements rests with the provider.
Art. XII.14. Advertising that form part of a service of the information society provided by a member of a regulated profession, or that constitute such a service, is authorized, subject to compliance with professional rules, including the independence, dignity and honour of the profession, as well as professional secrecy and loyalty to customers and other members of the profession.
Section 5. - Electronic contracts
Art. XII.15. § 1^er. Any formal legal or regulatory requirement relating to the contracting process is deemed to be met with respect to an electronic contract where the functional qualities of this requirement are preserved.
§ 2. For the application of § 1^er, it is necessary to consider:
- that the requirement of a writing is met by a series of intelligible and accessible signs to be consulted at a later date, regardless of their support and transmission modalities;
- whether the express or tacit requirement of a signature is met under the conditions provided for in Article 1322, paragraph 2, of the Civil Code or Article XII.25, § 4;
- that the requirement of a written mention of the hand of the obligee may be satisfied by any process ensuring that the mention emanates from the latter.
Art. XII. 16. Section XII.15 is not applicable to contracts that fall within one of the following categories:
1° contracts that create or transfer rights to real property, with the exception of rental rights;
2° contracts for which the law requires the intervention of courts, public authorities or professions exercising public authority;
3° contracts of security rights and guarantees provided by persons acting for purposes that do not fall within the scope of their professional or commercial activity;
4° contracts under family law or estate law.
Section 6. - Responsibility of intermediaries
Section 1^re. - Simple transport activity
Art. XII.17. In the event of the provision of a service of the information society to transmit, on a communication network, information provided by the recipient of the service or to provide access to the communication network, the service provider is not responsible for the information transmitted, if satisfied with each of the following conditions:
1° it is not at the origin of the transmission;
2° it does not select the recipient of the transmission;
3° it does not select or modify the information being transmitted.
Transmission and provision of access activities referred to in paragraph 1^er include the automatic, intermediate and transitional storage of the information transmitted, provided that this storage is used exclusively for the execution of the transmission on the communication network and that its duration does not exceed the reasonably necessary time for transmission.
Section 2. - Storage activity as a temporary copy of data
Art. XII.18. In the event of the provision of a service of the information society to transmit, on a communication network, information provided by a recipient of the service, the provider is not responsible for the automatic, intermediate and temporary storage of that information solely for the purpose of making the subsequent transmission of the information more effective at the request of other recipients of the service, provided that each of the following conditions is met:
1° the provider does not alter the information;
2° the provider complies with the access to information conditions;
3° the provider complies with the rules for updating information, widely recognized and used by companies;
4° the provider does not interfere with the legal use of the technology, widely recognized and used by the industry, in order to obtain data on the use of information;
5° the provider shall act promptly to remove the information it has stored or to render access to it impossible as soon as it is aware of the fact that the information at the origin of the transmission has been removed from the network or of the fact that access to the information has been made impossible, or of the fact that an administrative or judicial authority has ordered to withdraw the information or to render the access to that article XII impossible and §
Section 3. - Hosting activity
Art. XII.19. § 1^er. In the event of the provision of an information company service consisting of the storage of information provided by a recipient of the service, the provider is not responsible for the information stored at the request of a recipient of the service provided that:
1° that it does not have an effective knowledge of the illicit activity or information, or, in respect of civil action in reparation, that it does not have knowledge of facts or circumstances that reveal the illicit nature of the activity or information; or
2° act promptly, as soon as it has such knowledge, to remove the information or to make access to it impossible and as long as it acts in accordance with the procedure provided for in paragraph 3.
§ 2. Paragraph 1^er does not apply where the recipient of the service acts under the authority or control of the service provider.
§ 3. When the supplier has an effective knowledge of an illegal activity or information, he shall communicate it to the Crown Prosecutor who takes the necessary measures in accordance with section 39bis of the Code of Criminal Investigation.
As long as the King's prosecutor has not made any decisions regarding the copying, inaccessibility and removal of documents stored in a computer system, the provider can only take steps to prevent access to information.
Section 4. - Monitoring obligations
Art. XII. 20. § 1^er. For the provision of the services referred to in articles XII.17, XII.18 and XII.19, providers have no general obligation to monitor the information they transmit or store, nor any general obligation to actively seek facts or circumstances that reveal illicit activities.
The principle set out in paragraph 1^er only applies to general obligations. It does not prevent the competent judicial authorities from imposing a temporary duty of supervision in a specific case, where this possibility is provided by a law.
§ 2. Providers referred to in paragraph 1^er have the obligation to promptly inform the competent judicial or administrative authorities of the alleged unlawful activities of the consignees of their services, or of the alleged unlawful information that they would provide.
Without prejudice to other legal or regulatory provisions, the same providers are required to communicate to the competent judicial or administrative authorities, at their request, all the information they have and useful to the research and recognition of the offences committed by them.
Section 7. - Legal protection of conditional access services and conditional access services related to information society services
Art. XII.21. It is forbidden:
1° to manufacture, import, distribute, sell, lease or hold illegal devices for commercial purposes;
2° to install, maintain or replace for commercial purposes illicit devices;
3° to use advertising to promote illegal conditional access devices.
Section 8. - Registration of domain names
Art. XII.22. It is forbidden to register, by an official registered body to this effect, through or without an intermediary, without having any right or legitimate interest in it and with the aim of harming a third party or to draw unduly profit from it, a domain name that is identical, or resembles the point of creating a risk of confusion, in particular, to a mark, a geographical indication or a name of origin
Art. XII.23. Article XII.22 applies without prejudice to other legal provisions, including any legal provision protecting trademarks, geographical indications and labels of origin, trade names, original works and all other intellectual property objects, the social names and names of associations, the names of employers, the names of geographical entities as well as any legal provision in respect of unfair competition, market practices and information.
Disputes arising from the right to freedom of expression are not within the scope of this chapter. "
Art. 4. In Book XV, Title 3, Chapter 2, of the same Code, it is inserted a section 9, as follows:
"Section 9. - Penalties for offences under Book XII
Art. XV.118. Are punished by a level 3 sanction:
1° providers who do not comply with the reasoned orders referred to in Article XII.5, § 6, paragraph 1^er;
(2) those who do not comply with any judgment or judgment rendered under section XVII.1 following an action on termination;
3° providers who refuse to provide the required collaboration on the basis of Article XII.20, § 1^er, paragraph 2, or Article XII.20, § 2.
Art. XV.119. A penalty of level 2 shall be imposed on those who commit an offence under articles XII.6 to XII.9 and XII.12.
Art. XV.120. A level 3 penalty shall be imposed on those who send advertisements by e-mail in contravention of the provisions of Article XII.13.
Art. XV.121. A penalty of level 4 is imposed on those who, in bad faith, commit an offence to the provisions of articles XII.6 to XII.9, XII.12 and XII.13.
Art. XV.122. A level 6 penalty shall be imposed, those who commit an offence to the provisions of Article XII.21. ".
CHAPTER III. - Abrogatory provision
Art. 5. Are repealed:
- the Act of 11 March 2003 on certain legal aspects of the services of the information society, as amended by the Programme Act of 9 July 2004 and the Acts of 20 July 2005 on various provisions and 10 July 2012 on various electronic communications provisions;
- the Law of 12 May 2003 on the Legal Protection of Conditional Access Services and Conditional Access Services relating to the Services of the Information Society,
- the Act of 26 June 2003 on the improper registration of domain names.
CHAPTER IV. Attribution of skills
Art. 6. Existing royal laws or decrees referring to the laws referred to in Article 5 are presumed to refer to the equivalent provisions of the Economic Law Code, as inserted in this Act.
Art. 7. The King may replace references in existing laws or decrees to the laws referred to in Article 5 with references to the equivalent provisions of the Economic Law Code, as inserted in this Act.
Art. 8. The King may coordinate the provisions of the Economic Law Code, as set out in this Act, with the provisions that would have expressly or implicitly amended them at the time of coordination.
To this end, He may:
1° amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology without prejudice to the principles set out in these provisions.
CHAPTER V. - Entry into force
Art. 9. The King shall determine the date of entry into force of each of the provisions of this Act and of each of the provisions set out in this Act in the Economic Law Code.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 15 December 2013.
PHILIPPE
By the King:
Minister of Economy and Consumers,
J. VANDE LANOTTE
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) See:
Documents of the House of Representatives:
53-2963 - 2012/2013:
Number 1: Bill.
53-2963 - 2013/2014:
Number 2: text corrected by the commission.
Number three: Report.
No. 4: Text adopted in plenary and transmitted to the Senate.
Full report: 14 November 2013.
See also:
Documents of the House of Representatives:
53-2964 - 2012/2013:
Number 1: Bill.
53-2964 - 2013/2014:
Number 2: text corrected by the commission.
Number three: Report.
No. 4: Text adopted in plenary and transmitted to the Senate.
Full report: 14 November 2013.
Documents of the Senate:
5-2342 - 2013/2014:
No. 1: Project not referred to by the Senate.