Posted the: 2014-01-14 Numac: 2013011667 SERVICE PUBLIC FÉDÉRAL ÉCONOMIE, P.M.E., CLASSES averages and energy 15 December 2013. -Law concerning integration of book XII, 'Right of the e-economy' in the Code of economic law, with insertion of the specific definitions in book XII and the provisions of the specific book XII, in books I and XV of the Code of law enforcement economic (1) PHILIPPE, King of the Belgians, to all, present and future, hi.
The Chambers have adopted and we endorse the following: chapter I:. -Available general Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
CHAPTER II. -The Code of economic law art. 2. in book I, Chapter 2, of the Code of economic law, there shall be inserted a chapter 10 as follows: "chapter 10. -Special book XII s. definitions I.18. the following definitions are applicable to book XII: 1 ° the information society service: any service normally provided for remuneration, at a distance by electronic means and at the individual request of a recipient of the service;
2 ° e-mail: any text, voice, sound or image message sent by a public communications network which can be stored in the network or in the recipient's terminal equipment until such time as the latter recovers;
3 ° provider: any natural or legal person providing an information society service;
4 ° established service provider: provider who effectively pursues an economic activity through a permanent establishment for an indefinite period. The presence and the use of technical means and technologies required to provide the service do not constitute as such an establishment of the provider;
5 ° recipient of the service: any natural or legal person who, for purposes or non-professional, uses an information society service, notably for seeking information or making it accessible;
6 ° advertising: any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, an organization or a person having a commercial, industrial or craft activity or exercising a regulated activity.
For the purposes of book XII, do not constitute as such advertising: a) information enabling direct access to the activity of the undertaking, organisation or person, such as a domain name or an electronic mail address;
b) communications developed in an independent manner, particularly when provided without financial compensation;
7 ° regulated profession: any professional activity the access or the exercise or one of its modes of pursuit is subject, directly or indirectly, by laws, regulations or administrative provisions, to the possession of a diploma, a title of training or an attestation of competence;
8 ° protected service: one of the services of the information society, provided that it be supplied against payment and on the basis of conditional access, or the provision of conditional to the aforesaid access, considered as a service in its own right;
9 ° conditional access: any action and any technical device whereby access to the protected service in an intelligible form of prior individual authorisation;
10 ° conditional access device: any equipment or software designed or adapted to give access to a protected service in an intelligible form;
11 ° illicit device: any equipment or software designed or adapted to give access to a protected service in an intelligible form without the authorisation of the service provider;
12 ° domain name: an alphanumeric representation of a digital IP (Internet Protocol) that identifies a computer connected to the Internet. a domain name is registered under a top-level domain corresponding to one of the generic domains (gTLDs) defined by the Internet Corporation for Assigned Names and Numbers (ICANN) either to a country (ccTLDs) under the standard ISO-3166-1 codes;
"13 ° domain name registered under the BE domain: a domain name registered under the top level domain country code".be", which was awarded to the Kingdom of Belgium under the ISO-3166-1 standard."
S. 3. in the same Code, it is inserted a book XII, as follows: "book XII. -Right of the e-economy 1 title. -Legal aspects of the chapter 1 information society. -Provisions preliminary art. XII.1. § 1. Sections 1 to 6 of this title transpose the provisions of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of the services of the society of information, in particular electronic commerce, in the internal market.
Chapter 4 also partially transposes 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 the rights of users with regard to networks and electronic communications services, Directive 2002/58/EC concerning 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 enforcement of consumer protection legislation.
Chapter 7 transpose the provisions of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of conditional access services and conditional access services.
§ 2. This title sets certain legal aspects of information society services.
It does not apply: 1 ° to the field of taxation;
2 ° to issues relating to information society services covered by statutory or regulatory provisions relating to the protection of privacy and the treatment of the personal data;
3 ° to the questions relating to agreements or practices governed by the law of agreements;
4 ° in the following activities of information society services: a) the activities of notary to the extent where they involve direct and specifically to the exercise of public authority;
(b) the representation of a client and defence of his interests before the courts;
(c) the activities of gambling involving bets with monetary value in games of chance, including lotteries and betting transactions).
Chapter 2. -Principles fundamental Section 1st. -Principle of freedom of establishment art. XII.2. access to the activity of a provider of services of the information society and the exercise thereof are subjected to no prior authorisation or any other requirement having equivalent effect.
Paragraph 1 is without prejudice to authorisation schemes which are not specifically and exclusively the information society services, or which are governed by the authorization schemes provided for in title III of the Act of 21 March 1991 on reform of some economic public companies.
Section 2. -The principle of freedom to provide services article XII.3. the provision of services of the information society by a provider established on Belgian territory shall conform to the requirements applicable in Belgium.
Freedom of movement, on the Belgian territory, of the information society services provided by a provider established in another Member State is not restricted because the requirements applicable in Belgium or in other countries.
Paragraphs 1 and 2 are specific or general requirements relating to the information society services and providers of these services. They are not intended as such, their physical delivery goods or services that are not provided by electronic means requirements.
Section 3. -Derogations from the principle of free provision of services art.
XII.4. by way of derogation from article XII.3, chapters III bis, IIIter, Vbis and Vter's Act of 9 July 1975 on the control of insurance undertakings shall continue to apply.
By way of derogation from article XII.3, advertising for the marketing of the units of undertakings for collective investment in transferable securities referred to in article 105 of the law of 4 December 1990 on financial transactions and the financial markets is subject to the legislation of the country of marketing.
Article XII.3 does not apply: 1 ° to the freedom of parties to choose the law applicable to their contract;
2 ° for contractual obligations in contracts concluded with consumers;
3 ° in copyright and neighbouring rights, of rights to topographies of semiconductor products, sui generis database rights, industrial property rights;
4 ° in relation to the formal validity of contracts creating or transferring rights in real estate, when such contracts are subject to mandatory formal requirements in the Member State where the property is located concerned;
5 ° in relation to the authorisation of unsolicited advertisements sent by e-mail.
Chapter 3. -Information and transparency art. XII.6. § 1. Without prejudice to other legal and regulatory information requirements, any provider of a service of the information society provides an easy, seamless, and permanent access.
for the recipients of the service and for the competent authorities, at least, the following information: 1 ° his name or its name;
2 ° the geographic address where the provider is established;
3 ° its contact information, including email address, to get in touch quickly and to communicate directly and efficiently with him;
4 ° where appropriate, the business number;
5 ° in the case where the activity is subject to a licensing scheme, the contact details of the competent supervisory authority;
6 ° in relation to regulated professions: a) the professional association or professional organization with which the provider is registered, b) the professional title and the State in which it was awarded, c) a reference to the professional rules applicable and the means to access them;
7 ° in the case where the provider exercises an activity subject to the tax on added value, the identification number referred to in article 50 of the Code of value added tax;
8 ° codes of conduct to which he is possibly subject as well as information on how those codes can be consulted electronically.
§ 2. Without prejudice to other legal and regulatory requirements in the indication of prices, when the information society services refer to prices, these are indicated clearly and unambiguously and indicate notably if taxes and shipping costs are included.
S. XII.7. § 1. Without prejudice to other legal and regulatory information requirements, until the recipient of the service places an order electronically, service provider shall, at least, the following information in a clear, comprehensible and unambiguous manner: 1 ° the languages offered for the conclusion of the contract;
2 ° the different technical steps to follow to conclude the contract;
3 ° the technical means for identifying and correcting errors in the data entry until the order is placed;
4 ° If the contract once is checked or not by the service provider and whether or not it is accessible.
§ 2. Contract terms and general conditions provided to the recipient must be in a way that allows us to store and reproduce them.
S. XII.8. before placing the order, the provider shall make available to the recipient of the service the appropriate technical means to identify errors in data entry and correct.
S. XII.9. where the recipient of the service places an order by electronic means, the following principles shall apply: 1 ° the claimant acknowledges receipt of the order to the recipient without undue delay and by electronic means;
2 ° the acknowledgement contains, inter alia, a summary of the order;
3 ° the order and the acknowledgement of receipt are considered as being received when the parties to which they are addressed can have access.
S. XII.10. parties who are not consumers may conventionally derogate from the provisions of article XII.6, § 1, 8 °, as well as articles XII.7, § 1, XII.8 and XII.9.
The provisions of article XII.6, § 1, 8º, of article XII.7, § 1, article XII.8 and article XII.9, 1 ° and 2 ° shall not apply to contracts concluded exclusively through an exchange of e-mails.
S. XII.11. in respect of consumers, evidence of compliance with the requirements laid down in articles XII.6 to XII.9 rests with the claimant.
Chapter 4. -Advertising art. XII.12. without prejudice to other legal and regulatory information requirements, advertisements that are part of the information society service or which constitute such a service comply with the following principles: 1 ° upon receipt, advertising, given its overall effect and including its presentation, is clearly identifiable as such. Otherwise, it contains the term "advertising"in a legible, apparent and unambiguous;
(2) the person or entity on behalf of which advertising is made is clearly identifiable;
3 ° promotional offers, such as the announcement of reduction, price and combined offers are clearly identifiable as such and the conditions to benefit from it are easily accessible and be presented accurately and unequivocally;
4 ° contests or promotional games are clearly identifiable as such and their terms of participation are easily accessible and be presented accurately and unequivocally.
S. XII.13. § 1.
The use of e-mail for advertising purposes is prohibited without the prior, free, specific and informed consent of the recipient of messages.
On the joint proposal of the Minister and the Minister having Justice in his or her attributions, the King may provide for exceptions to the prohibition provided for in the first paragraph.
§ 2. When sending any advertising by electronic mail, the claimant: 1 ° provides clear and understandable information concerning the right to oppose, for the future, to receive the advertisements;
2 ° indicates and provides an appropriate means to effectively exercise this right by electronic means.
On the joint proposal of the Minister and the Minister having Justice in his or her attributions, the King determines the modalities according to which service providers respect the will of the recipient no longer receive advertisements by e-mail.
§ 3. When sending advertisements by e-mail, it is prohibited: 1 ° to use the e-mail address or the identity of a third party;
2 ° falsify or hide any information identifying the origin of the email message or its transmission path.
3 ° encourage the recipient of messages to visit websites infringing article XII.12.
§ 4. Proof of the nature sought advertising by e-mail is the responsibility of the claimant.
S. XII.14. advertisements that are part of the information society service provided by a member of a regulated profession, or who provide such a service, are permitted, subject to compliance with the professional rules aiming, in particular, the independence, dignity and honour of the profession and professional secrecy and loyalty to clients and other members of the profession.
Chapter 5. -Contracts concluded by electronic arts. XII.15. § 1. Any statutory or regulatory requirement concerning the contractual process form is deemed to be met with respect to a contract electronically when the functional qualities of this requirement are preserved.
§ 2. For the purposes of § 1, it is necessary to consider:-that the writing requirement is satisfied by a sequence of signs intelligible and accessible to be viewed later, regardless of their support and their procedures for transmission;
-that the requirement, express or implied, a signature is satisfied under the conditions laid down either in article 1322, paragraph 2, of the civil Code, namely article XII.25, § 4;
-that the requirement of a written reference from the hand of he who undertakes can be satisfied by any process guaranteeing that mention emanates from the latter.
S. XII. 16. XII.15 section is not applicable to contracts that fall within one of the following categories: 1 ° contracts that create or transfer rights in real estate, except for rental rights;
2 ° contracts for which the law requires the intervention of courts, public authorities or professions exercising public authority;
3 ° the security contracts and guarantees provided by persons acting for purposes which are not in the context of their business or profession;
4 ° contracts governed by the law of the family or the law of succession.
Chapter 6. -Liability of intermediary providers Section 1. -Simple transport art activity
XII.17. in case of a supply of a service of the information society consists of the transmission on a communication network, information provided by the recipient of the service, or to provide access to the communications network, the service provider is not responsible for the information transmitted, met with each of the following conditions: 1 ° it is not at the origin of the transmission;
2 ° it does not select the addressee of the transmission;
3 ° it does not select or modify, the information contained in the transmission.
Activities transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient transmitted information storage, provided that this storage used exclusively for execution of transmission in the communication network and that its duration does not exceed the time reasonably necessary for the transmission.
Section 2. -Activity of storage in the form of temporary copy of data art.
XII.18. in case of supply of a service of the society of information transmission in a communication network, information provided by a recipient of the service, the service provider is not liable in respect of the storage automatic, intermediate and temporary of this information is for the sole purpose of making more effective the subsequent transmission of information at the request of other recipients of the service , provided that each of the following conditions is fulfilled: 1 ° the claimant does not modify the information;
2 ° the claimant complies with the conditions for access to information;
3 ° the provider complies with rules regarding the update of the information, specified in a manner widely recognised and used by businesses;
4 ° the claimant does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information;
5 ° the claimant is promptly to remove the information that it has stored or to make access to it impossible once he actually knows that the information originally from the transmission has been removed from the network or the access to information has been made it impossible, or that an administrative or judicial authority ordered to remove information or make impossible access to the latter and for as much whether in accordance with the procedure laid down in article XII.19, § 3.
Section 3. -Hosting Arts Business XII.19. § 1.
In the case of provision of a service of the information society store 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 to condition: 1 ° that there be no actual knowledge of the activity or unlawful information, or, in relation to a civil action for compensation It does not have knowledge of facts or circumstances revealing the illegality of the activity or information; or 2 ° whether it promptly, the moment where there's such knowledge, to remove the information or make access to them impossible and provided that it acts in accordance with the procedure laid down in paragraph 3.
§ 2. Paragraph 1 does not apply when the recipient of the service is acting under the authority or the control of the claimant.
§ 3. When the claimant has actual knowledge of an activity or illegal information, it shall communicate on the field to the Prosecutor of the King who shall take appropriate measures in accordance with article 39bis of the Code of criminal procedure.
As long as the Prosecutor took no decision on copying, inaccessibility and the withdrawal of documents stored in a computer system, the claimant can only take measures to prevent access to information.
Section 4. -Obligations regarding statutory auditors art.
XII. 20. § 1. 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 which they transmit or store, nor no general obligation to actively seek facts or circumstances indicating illegal activity.
The principle in paragraph 1 applies only to obligations of general character. It does not prevent the competent judicial authorities to impose a temporary duty of monitoring in a specific case, when this possibility is foreseen by legislation.
§ 2. Service providers referred to in paragraph 1 have the obligation to inform without delay the judicial or administrative authorities competent to alleged illegal activities that exercise the recipients of their services, or unlawful information alleged that the latter would provide.
Without prejudice to other legal or regulatory provisions, the same claimants are required to communicate to the judicial or administrative authorities competent, at their request, all the information they have available and useful for searching and finding of offences committed through them.
Chapter 7. -Legal protection of conditional access services and the conditional access services related to the article information society services
XII.21. it is prohibited: 1 ° to manufacture, import, distribute, sell, rent or hold for commercial purposes of illicit devices;
2 ° install, maintenance or replacement for commercial purposes of illicit devices;
3 ° to use advertising to promote illicit conditional access systems.
Chapter 8. -Registration of domain s. XII.22. it is prohibited to register, by an instance approved officially for this purpose, through or not an intermediary, without neither right nor interest legitimate respect and order to harm a third party or unfair advantage, a domain name that is identical or looks at the point of creating a likelihood of confusion in particular, to a trade mark, a geographical indication or a designation of origin, to a trade name, an original work, in a corporate name or name of an association, to a surname or a geographical entity name belonging to another.
S. XII.23. article XII.22 applies without prejudice to other legal provisions and including any legal provisions protecting trademarks, geographical indications and appellations of origin, trade names, the original works and all other objects of intellectual property, the names and designations of associations, the surnames, names of geographical entities and any statutory unfair competition provisions, practices of market and information and consumer protection.
Disputes arising from the right to freedom of expression are outside the scope of this chapter."
S. 4. in book XV, title 3, Chapter 2, of the same Code, there shall be inserted a section 9, worded as follows: "Section 9. -The penalties relating to infringements of the art book XII.
XV.118. are punished a sanction of the 3: 1 ° level providers who do not comply with reasoned orders referred to in article XII.5, § 6, paragraph 1;
2 ° those who do not conform to what has a judgment or a ruling under article XVII.1 following an action for injunction.
3 ° the providers who refuse to provide the cooperation required on the basis of article XII.20, § 1, paragraph 2, or article XII.20, § 2.
S. XV.119. are punished by a sanction of level 2, those who commit an offence under the provisions of articles XII.6 XII.9 and XII.12.
S. XV.120. are punished by a penalty at level 3, those who send advertisements by electronic mail in contravention to the provisions of article XII.13.
S. XV.121. are punished by a sanction of level 4, those who, in bad faith, commit an offence under the provisions of articles XII.6 XII.9, XII.12-XII.13.
XV.122. are punished by a sanction of level 6, those who commit an offence under the provisions of article XII.21. "."
CHAPTER III. -Provision repealing art. 5 are repealed: – the Act of 11 March 2003 on certain legal aspects of services of the information society, as amended by the programme act of 9 July 2004 and of 20 July 2005 laws specifying various provisions and 10 July 2012 on the various provisions on electronic communications;
– the law of 12 May 2003 on the legal protection of conditional access services and access services conditional on services of the information society – Act of 26 June 2003 on the abusive registration of domain names.
CHAPTER IV. -Allocation of competencies art.
6. any laws or existing decrees which make reference to the laws referred to in article 5 are presumed to refer to the equivalent provisions of the Code of economic law, as inserted by the Act.
S. 7. the King may replace such references in the laws or existing orders to the laws referred to in article 5 with references to the equivalent provisions of the Code of economic law, inserted by this Act.
S. 8. the King can coordinate the provisions of the Code of economic law, as that inserted by this law, with provisions that would have expressly or implicitly modified at the time where the coordination will be established.
To this end, it may: 1 ° modify the order, numbering and, in general, the presentation of the provisions to coordinate;
2 ° amend the references contained in the provisions to coordinate to put them in line with the new numbering;
3 ° amend the drafting of the provisions to coordinate to ensure consistency and to unify the terminology without that it can be infringed the principles embodied in these provisions.
Chapter V. - Entry into force art. 9. the King fixed the date of the entry into force of each of the provisions of this Act and each of the provisions inserted by this law in economic law.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given in Brussels, December 15, 2013.
PHILIPPE by the King: the Minister for the economy and consumers, J. VANDE LANOTTE the Minister of Justice, Ms. A. TURTELBOOM sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Note (1) see: records of the House of representatives: 53-2963-2012/2013: No. 1: Bill.
53 - 2963 - 2013/2014: No.2: text corrected by the commission.
No. 3: report.
No. 4: Text adopted in plenary meeting and transmitted to the Senate.
Full record: 14 November 2013.
See also: records of the House of representatives: 53-2964-2012/2013: No. 1: Bill.
53 - 2964 - 2013/2014: No.2: text corrected by the commission.
No. 3: report.
No. 4: Text adopted in plenary meeting and transmitted to the Senate.
Full record: 14 November 2013.
The Senate documents: 5-2342
-2013/2014: No. 1: project not referred by the Senate.