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11 MARCH 2003. - Law on Certain Legal Aspects of 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. - Preliminary provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It transposes 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.
Art. 2. For the purposes of this Act and its enforcement orders, the following means:
1° "Service of the Information Society": any service normally taken 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 network of communications 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": a provider who effectively operates an 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° "service recipient": 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° "consumer": any natural person who acquires or uses goods or services for purposes excluding any professional character;
7° "advertising": any form of communication intended to promote, directly or indirectly, goods, services or the image of a business, organization or person having a commercial, industrial or artisanal activity or exercising a regulated activity.
For the purposes of this Act, 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;
8° "regulated profession": 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;
9° "liberal profession": any independent professional activity of service delivery or supply of goods, which does not constitute an act of trade or an artisanal activity referred to in the Act of March 18, 1965 on the register of crafts and which is not covered by the Act of July 14, 1991 on trade practices and information and consumer protection, excluding agricultural and livestock activities.
Art. 3. This Act regulates certain legal aspects of the services of the information society.
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.
CHAPTER II. - Fundamental principles
Section 1^re. - Principle of freedom of establishment
Art. 4. 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. 5. 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 EU Member State is not restricted because of the requirements applicable in Belgium or 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. 6. By derogation from section 5, 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 5, advertising for the commercialization 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 5 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 respect to the formal validity of contracts creating or transferring rights on real property, when these contracts are subject to mandatory form requirements in the Member State of the European Union where the property is located;
5° with respect to the authorization of unsolicited advertisements transmitted by e-mail.
CHAPTER III. - Information and transparency
Art. 7. § 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 trade register in which it is registered and its registration 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. 8. § 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. 9. 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. 10. 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. 11. Parties that are not consumers may conventionally waive the provisions of Article 7, § 1^er8°, as well as articles 8, § 1^er9 and 10.
The provisions of Article 7, § 1^er8° of Article 8 § 1^er, Article 9 and Article 10, 1 and 2° are not applicable to contracts concluded exclusively by means of an electronic mail exchange.
Art. 12. In respect of consumers, proof of compliance with the requirements set out in sections 7 to 10 is the responsibility of the provider.
CHAPTER IV. - Advertising
Art. 13. 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; it includes the words "advertising" 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. 14. § 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 who has the Justice in his or her powers and the Minister who has the Economic Affairs in his or her powers, 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 who has the Justice in his office and the Minister who has the Economic Affairs in his office, the King determines the modalities according to which the 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.
§ 4. Proof of the solicited nature of e-mail advertisements rests with the provider.
Art. 15. 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.
CHAPTER V. - Electronic contracts
Art. 16. § 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 4, § 4, of the Law of 9 July 2001 establishing certain rules relating to the legal framework for electronic signatures and certification services;
- 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.
§ 3. In addition, the King may, within eighteen months of the coming into force of this Act, adapt any legislative or regulatory provision that would constitute an obstacle to the conclusion of contracts electronically and would not be covered by §§ 1^er and 2.
Royal orders under paragraph 1^er are repealed when they have not been confirmed by law within fifteen months of their publication in the Belgian Monitor.
Art. 17. Section 16 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.
CHAPTER VI. -Responsibility of intermediaries
Section 1^re. - Simple transport activity
Art. 18. 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. 19. 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 that the information at the origin of the transmission has been removed from the network or that access to the information has been made impossible, or that an administrative or judicial authority has ordered to withdraw the information or to render the access to the information in accordance with that procedure impossible and §
Section 3. - Hosting activity
Art. 20. § 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° that it shall act promptly, as soon as it has such knowledge, to withdraw the information or to render access to it impossible and as long as it acts in accordance with the procedure provided for in § 3.
§ 2. § 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. 21. § 1^er. For the provision of the services referred to in sections 18, 19 and 20, 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 § 1^er have the obligation to promptly inform the competent judicial or administrative authorities of the alleged unlawful activities of the recipients of their services, or of the alleged unlawful information that the recipients would provide. For this purpose, they comply with the terms set out in the procedures referred to in Article 20, § 3.
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, information to identify the recipients of their services with which they have entered into an accommodation agreement.
CHAPTER VII. - Control measures and sanctions
Section 1^re. - Warning procedure
Art. 22. Where it is found that an act constitutes an offence to this Act or to any of its enforcement orders, the Minister who has the Economic Affairs in his or her powers or the agent that he or she designates under section 23, may send a warning to the offender to terminate 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 may also be communicated by fax or e-mail.
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 absence of any follow-up to the warning, either the Minister who has the Economic Affairs in his or her powers may bring an action on termination, or the agents referred to in section 23, may notify the Crown Prosecutor or apply the settlement by way of transaction referred to in section 24.
Section 2. - Research and observation
of acts prohibited by this Law
Art. 23. Without prejudice to the powers of judicial police officers, officials designated by the Minister who has the Economic Affairs in his or her powers are competent to investigate and determine the offences referred to in section 26 of this Act.
The minutes issued by these officers are held to prove the contrary. A copy is sent to the offender by registered letter with acknowledgement of receipt within 30 days of the date of the findings.
In addition to the provisions provided for in Article 113, § 2, of the Law of 14 July 1991 on Trade Practices and on Consumer Information and Protection, the King shall, by order deliberately in the Council of Ministers, establish the powers to seek and determine the offences of which the agents referred to in paragraph 1^er have in the performance of their duties.
Without prejudice to their subordination to their superiors in the administration, the officers referred to in paragraph 1^er exercise the powers conferred upon them under paragraph 2 under the supervision of the Attorney General and the Federal Prosecutor with respect to the tasks of investigating and detecting offences referred to in this Act.
In the event of application of section 22, the minutes referred to in paragraph 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 24, the minutes shall be transmitted to the King's Prosecutor only when the offender has not accepted the proposed transaction.
Section 3. - Transactional Regulations
Art. 24. The officers referred to in section 23 may, in the light of the minutes that find an offence to the provisions of section 26, 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 26 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 this case, the amounts paid are returned to the offender.
Art. 25. Sections 22, 23 and 24 are not applicable to a liberal profession.
Section 4. - Penal sanctions
Art. 26. § 1^er. A fine of between 1,000 and 20,000 euros shall be punished by providers who do not comply with the motivated orders referred to in Article 2, § 6, paragraph 1^erthe Act of 11 March 2003 on certain legal aspects of the services of the information society referred to in Article 77 of the Constitution.
§ 2. A fine of 250 to 10,000 euros shall be punished, those who commit an offence under articles 7 to 10 and 13.
§ 3. A fine of between 250 and 25,000 euros is imposed, those who send advertisements by email in violation of the provisions of Article 14.
§ 4. A fine of 500 to 50,000 euros is punishable, those who in bad faith commit an offence to the provisions of articles 7 to 10, 13 and 14.
§ 5. Are punished with a fine of 1,000 to 20,000 euros:
1° those who do not comply with any judgment or judgment made under section 3 of the Act of 11 March 2003 on certain legal aspects of the services of the information society referred to in article 77 of the Constitution following an action on termination;
(2) those who voluntarily prevent or hinder the execution by the persons referred to in Article 23 of their mission to seek and determine the offences or breaches of the provisions of this Act;
3° providers who refuse to provide the required collaboration on the basis of Article 21, § 1^er, paragraph 2, or article 21, § 2.
When the facts submitted to the court are the subject of an action on termination, it can only be decided on criminal action after a decision in force of judgment has been made with respect to the action on termination.
§ 6. 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.
§ 7. The provisions of Book 1^er the Criminal Code, including Chapter VII and Article 85, shall apply to offences under this section.
Without prejudice to the application of the usual rules on recidivism, the penalties set out in § 4 are doubled in the event of an offence occurring within five years of a conviction cast in force of a sentence pronounced by the head of the same offence.
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 section, determine whether special confiscation is warranted. This provision is not applicable in the case of recidivism referred to in paragraph 2 of this paragraph.
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 who has the Economic Affairs in his or her powers, by ordinary letter, any judgment or judgment relating to an offence referred to in this section.
The Registrar is also required to promptly notify the above-mentioned Minister of any appeal against such a decision.
Art. 27. The court may order the posting of the judgment or summary that it prepares, during the time it determines, both inside and outside 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.
CHAPTER VIII. - Final provisions
Art. 28. Section 1317 of the Civil Code is supplemented by the following paragraph:
"It may be erected on any basis if it is established and kept under conditions fixed by the King, by order deliberately in Council of Ministers. »
Art. 29. Section 23, 5°, paragraph 2, of the Act of 14 July 1991 on trade practices and information and consumer protection, inserted by the Act of 25 May 1999, is repealed.
Art. 30. In the Schedule to the Act of 26 May 2002 on intra-community cessation shares in consumer interests, a point 10° is inserted, which reads as follows:
« 10° The Act of 11 March 2003 on certain legal aspects of the services of the information society, as well as its enforcement orders. »
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 11 March 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
____
Note
(1) Session 2002-2003.
House of Representatives.
Documents. - Bill, 50-2100, No. 1. - Amendments, 50-2100, No. 2. - Report, 50-2100, No. 3. - Text adopted by the Committee (Article 78 of the Constitution), 50-2100, No. 4. - Text adopted by the Committee (Article 77 of the Constitution), 50-2100, No. 5. - Text adopted in plenary and transmitted to the Senate (Article 78 of the Constitution), 50-2100, No. 6 - Text adopted in plenary and transmitted to the Senate (Article 77 of the Constitution), 50-2297, No. 1.
Full report. - 13 February 2003.
Senate.
Documents. - Project transmitted by the House of Representatives, 2-1480, No. 1. - Report, 2-1480, No. 2. - Text adopted in plenary and subject to Royal Assent, 2-1480, No. 3.
Annales. - 27 February 2003.