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12 MAI 2003. - Legal Protection of Conditional Access Services and Conditional Access Services for Information Society Services (1)

ALBERT II, 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. - Definitions
Art. 2. For the purposes of this Act, it shall be understood by:
1° service of the information society: any service normally presumed against remuneration, distance by electronic means and at the individual request of a service recipient. For the purposes of this definition:
(a) remotely: a service provided without simultaneous presence of the parties;
(b) by electronic means: a service originally sent and received to the destination by means of electronic processing equipment (including digital compression) and data storage, which is fully transmitted, delivered and received by wire, radio, optical means or other electronic means;
(c) at the individual request of a service recipient: a service provided by data transmission on individual request.
An indicative list of services not covered by this definition is contained in the annex;
2° 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;
3° conditional access: any measure and/or any technical device that subordinates access to the protected service in an intelligible form to an individual prior authorization;
4° conditional access device: any equipment or software designed or adapted to allow access to a protected service in an intelligible form;
5° Advertising: any form of communication intended to promote, directly or indirectly, conditional access devices;
6° 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.
CHAPTER III. - Illicit activities
Art. 3. 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 illicit devices.
CHAPTER IV. - Sanctions
Section 1^re. - End action
Art. 4. The President of the Commercial Court notes the existence and orders the cessation of an act, even criminally repressed, which constitutes an offence under this Act.
It may order the prohibition of advertising referred to in Article 3, 3°, where it has not yet been made known to the public, but that its publication is imminent.
Art. 5. The action based on Article 4 is formed upon request:
1° of interested persons;
2° of the Minister who has the Economic Affairs in his office;
3° of a professional or interprofessional group with civil personality;
4° of an association whose purpose is to defend the interests of consumers and to enjoy civil personality as long as it meets the conditions laid down in article 98, § 1^er4, of the Law of 14 July 1991 on Trade Practices and on Consumer Information and Protection.
By derogation from the provisions of articles 17 and 18 of the Judicial Code, associations referred to in paragraph 1^er, 3 and 4, may act in court for the defence of their statutoryly defined collective interests.
Sections 99 and 100 of the Act of 14 July 1991 on trade practices and information and consumer protection are applicable to cessation action referred to in paragraph 1^er of this article.
Section 2. - Criminal sanctions
Art. 6. § 1^er. A person who commits an offence under section 3 of this Act shall be liable to imprisonment for eight days to five years and a fine of 25 to 25,000 euros or one of these penalties only.
§ 2. When the facts submitted to the court are the subject of a restraining action, it can only be decided on the criminal action after a decision that has been made in force in respect of the termination action.
§ 3. Without prejudice to the application of the usual recidivism rules, the penalties provided for in § 1^er are doubled in the event of a breach of the provisions of section 3 of this Act, acting within five years of the date of a conviction cast in force of a sentence pronounced by the head of an offence under the provisions of the aforementioned article.
§ 4. The court may order the posting of the judgment or summary that it prepares during the period that it determines both outside and inside the offender's institutions and at the expense of the offender, as well as the publication of the judgment or summary at the offender's expense through the newspapers or in any other manner; it may also order the confiscation of the illicit profits realized in favour of the offence.
§ 5. Corporations and associations with civil personality are civilly liable for convictions of damages, fines, fees, confiscations, restitution and monetary penalties imposed for breaches of the provisions of this Act against their organs or agents.
The same is true of members of all trade associations without civil personality, when the offence was committed by a partner, manager or manager, on the occasion of an operation entering into the activity of the association. However, the civilly responsible partner is personally held only to the amounts or values they have withdrawn from the transaction.
These societies, associations and members may be quoted directly before the criminal court by the public prosecutor or the civil party.
§ 6. The provisions of Book I^er the Criminal Code, without exception of Chapter VII and Article 85, shall apply to offences covered by this Act.
By derogation from section 43 of the Criminal Code, the court shall, when making a conviction for any of the offences referred to in this Act, determine whether special confiscation is warranted. This provision is not applicable in the case of recidivism referred to in § 3.
Upon the expiration of a period of ten days from the date of delivery, the Registrar of the Court or the Court is required to bring to the attention of the Minister with economic affairs, by ordinary letter, any judgment or judgment relating to an offence referred to in this Act.
The Clerk is also required to promptly notify the Minister of any appeal against such a decision.
Section 3. - From the warning procedure
Art. 7. If an offence is found in section 3, the Minister who has the Economic Affairs in his or her powers, or the officer commissioned under section 8, may send a warning to the offender to put an end to that act.
The notice shall be notified to the offender within three weeks of the date of the finding of the facts, by registered letter with acknowledgement of receipt or by a copy of the notice of the facts.
The warning mentions:
1° the facts charged and the legal provisions infringed;
2° the period in which it must be terminated;
3° that in the event that the warning is not followed, the agents commissioned under section 8 may notify the Crown Prosecutor or propose a transactional settlement as provided for in section 9.
Section 4. - Research and recognition of offences
Art. 8. § 1^er. Without prejudice to the powers of judicial police officers, officials commissioned by the Minister with the Economic Affairs in his or her powers are competent to investigate and determine the offences referred to in Article 6. The minutes issued by these officers are held to prove the contrary. A copy is sent to the offender, by registered letter to the position with acknowledgement of receipt, within 30 days of the date of the findings.
§ 2. In the exercise of their function, the agents referred to in § 1^er may:
1° enter, during the usual hours of opening or working, in the premises and rooms whose access is necessary for the fulfilment of their mission;
2to make all useful findings, to be produced, on first requisition and without displacement, the documents, documents or books required for their research and findings and to take a copy thereof;
3° seize, against receipt, the documents, documents or books that are necessary to prove an offence or to search for co-authors or accomplices of offenders; the seizure is waived in full right without confirmation by the Public Prosecutor ' s Office within fifteen days;
4° if they have reason to believe that an offence exists, enter the inhabited premises, with the prior authorization of the judge of the police court. Visits to manned premises must be conducted between eight and eighteen hours and be made jointly by at least two officers.
§ 3. In the exercise of their function, the agents referred to in § 1^er may require police assistance.
§ 4. Without prejudice to their subordination to their superiors in the administration, the commissioned officers shall exercise the powers granted to them by this section under the supervision of the Attorney General with regard to the tasks of investigating and apprehending the offences referred to in this Act.
§ 5. In case of application of Article 7, the minutes referred to in § 1^er is transmitted to the King's Prosecutor only when it has not been given following the warning.
In the event of application of section 9, the minutes shall be transmitted to the King's Prosecutor only when the offender has not accepted the proposed transaction.
Art. 9. Agents commissioned for this purpose by the Minister with the Economic Affairs in his or her powers may, in the light of the minutes that find an offence to the provisions referred to in section 6, and made by the agents referred to in section 8, propose to the offenders the payment of an amount that extinguishes public action.
The rates as well as the payment and collection modalities are fixed by the King.
The amount set out in paragraph 1^er shall not exceed the maximum of the fine provided for in section 6 of this Act, plus any additional decimals.
The payment made within the specified time limit extinguishes the public action unless previously, a complaint has been sent to the King's Prosecutor, the investigating judge has been required to instruct or the court has been seized of the fact. In these cases, the amounts paid are returned to the offender.
CHAPTER V. - Final provisions
Art. 10. Section 589 of the Judicial Code, replaced by the Act of 11 April 1999 and amended by the Acts of 11 April 1999, 26 May 2002, 17 July 2002, 2 August 2002 and 20 December 2002 is supplemented by the following provision:
"13° to Article 4 of the Law of 12 May 2003 concerning the legal protection of conditional access services and conditional access services relating to the services of the information society; "
Art. 11. Article 1^er, 14, of the Act of 30 March 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital, as amended by the Act of 8 July 2001, is replaced by the following:
« 14. Protected service: one of the audio or television broadcasting services, 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; "
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 12 May 2003.
ALBERT
By the King:
Minister of Economy,
Ch. PICQUE
Minister of Justice,
Mr. VERWILGHEN
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
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Notes
(1) Regular session 2002/2003.
House of Representatives:
Parliamentary documents. - No. 50-2153/1: Bill. - No. 50-2153/2: Erratum. - No. 50-2153/3: Annex. - No. 50-2153/4: Amendments. - No. 50-2153/5: Report. - No. 50-2153/6: Text adopted by the Commission. - No. 50-2153/7: Text adopted in plenary and transmitted to the Senate.
Annales of the House of Representatives. - Full report: 27 March 2003.
Senate:
Parliamentary documents. - No. 2-1565/1: Project referred to by the Senate. - No. 2-1565/2: Report.
Annex
Indicative list of services not covered by the definition "services of the information society" referred to in section 2, 1°.
1. Services not provided "in distance": services taken in the physical presence of the provider and the recipient, even if they involve the use of electronic devices:
(a) examination or treatment in a doctor's office by means of electronic equipment, but in the physical presence of the patient;
(b) consulting an electronic catalogue in a store in the presence of the client;
(c) booking a flight ticket via a network of computers in a travel agency in the physical presence of the client;
d) Provision of electronic games in a gallery in the physical presence of the user.
2. Services not provided electronically:
a) services whose content is material, even if they involve the use of electronic devices:
- automatic distribution of tickets (banknotes, train tickets);
- access to road networks, car parks, etc. paid even if at the entrance and/or exit of electronic devices intervene to control access and/or ensure correct payment.
b) off-line services: distribution of CD-ROM or disk software.
(c) Services not provided through electronic data storage and processing systems:
- Voice telephone services;
- fax/telex services;
- services prested by voice or fax;
- consultation with a doctor by telephone/fax;
- consultation with a lawyer by telephone/fax;
- direct marketing by telephone/fax.
3. Services not provided "at the individual request of a service recipient": services provided by sending data without an individual call and intended for the simultaneous receipt of an unlimited number of recipients (transmission "point to multi-point"):
(a) television broadcasting services (including quasi-video-on-demand): the primary, wireless, terrestrial or satellite programming, coded or not, of television programs intended for the public. Is the communication of programs between companies for rebroadcasting to the public. Communications services providing, on an individual basis, information or other benefits, such as fax services, electronic data banks and other similar services, are not covered;
(b) sound broadcasting services;
(c) Teletext (televisuel).
See to be appended to Our Act of 12 May 2003 on the legal protection of conditional access services and conditional access services related to the services of the information society.
ALBERT
By the King:
Minister of Economy,
Ch. PICQUE
Minister of Justice,
Mr. VERWILGHEN