WILMAP: Belgium

LEGISLATION

 
[Book XII contains the Belgian implementation of the European e-commerce Directive, which includes in its “Section 4: Liability of intermediary service providers” specific provisions related to safe harbours for information service providers providing mere conduit, catching and/or hosting activities]
 
 
[Articles 122 to 125 of this Law prohibit to collect electronic information and to identify users involved in an electronic transmission except in specific circumstances]
 
 
[including Article 87 implementing Article 8.2 of the Infosoc Directive of 2001 which states that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”] [Note that this Law has been now codfied and inserted in the Book XI of the Belgian Commercial Law codification, which will enter into force on January, 1 2015]
 
 
[Article 314bis protects the content of private electronic communications]
 

Self-Regulation

 
[This is the Code of conduct set up by ISPA, the Belgian Association of Internet service providers. This Code of conduct is a example of self-regulation. It is mandatory for all the members of ISPA. It binds the members to a set of obligations, including the obligation for all the Belgian ISPs to collaborate adequately with the judicial authorities in their fight against online crimes, including copyright infringments, also through the Central Judicial Contact Point or eCops (see below).]
 
 
[This April 1999 Protocol of cooperation between ISPA (the Belgian ISP Association), the police and judicial authorities was agreed upon to improve the cooperation between Belgian ISPs and judicial authorities. The Protocol put in place a Central Judicial Contact Point, which is now eCops, available at www.ecops.be). eCops is an online complaint department to which Internet users, as well as the ISPs, can report crimes (including copyright infringments) committed through the Internet.]

BILLS AND PENDING PROPOSALS

[There are currently no known new legislative proposals on the issue of intermediary liability.] 

DECISIONS

Superior Courts

Supreme Court, Criminal, Belgacom SA/NV & Scarlet SA/NV (The Pirate Bay case II), P.13.0551.N/1, October 22, 2013
[Belgium, copyright, access providers, file sharing, torrent, The Pirate Bay, blocking order]
 
[(1) Reversing the decision of the Anvers Court of Appeal of February, 14 2013, ordering the blockage of all the websites redirecting to "thepiratebay.org," and sending the case back to the Brussels Court of Appeal.
 
(2) The Belgian Supreme Court confirmed that the public prosecutor did not violate the law by ordering the ISPs to block all websites redirecting to thepiratebay.org. The Court confirmed that far-reaching blocking orders against all national Internet service providers are lawful. According to the Supreme Court, a magistrate is entitled to order, (i) in a single injunction, (ii) all national Internet service providers to (iii) block access to IP rights-infringing content (iv) which is hosted by a server, linked to a specific main domain name, (v) by employing all possible technical means at their disposal or at least by blocking all domain names that refer to a specified main domain name. 
 
(3) This injunction, the Court noted, did not impose on the ISPs an unlawful obligation to monitor the web, which would be contrary to Art. 15 of the e-commerce Directive. According to the Supreme Court, this order does not trequire the ISPs to (i) monitor the information they transmit or store or (ii) actively seek facts or circumstances evidencing illegal activities.
 
(4) In dismissing the grivances of the plaintiffs, three ISPs (Telenet, Tecteo and Brutele) in this case, the Supreme court refused to refer a number of questions to the European Court of Justice (ECJ) for a preliminary ruling. Specifically, the plaintiffs requested to refer to the ECJ whether the Court of Appeal violated Eu law in failing (i) to specify the particular means they had to employ to comply with the injunction order and (ii) to exhaustively list the domain names to be blocked. However, the first question was later decided by the ECJ in the Telekabel case.]
 
Supreme Court, Civil, H.L. v. Test-Achats SCRL, C.10.0153.F/1, June, 16 2011
[copyright, privacy, personal information, infringment, hosting provider]
 
[The Belgian Supreme Court upheld an appelate decision holding that it is not possible for rightsholders or any other interested party to obtain from an hosting provider certain information to identify alleged copyright infringers on the basis of Article 21, § 2 of the Law of March 11, 2003 on certain services of the information society. This provision only allows judicial or administrative authorities to obtain these information (name of the client, his geographical situation, etc.) from a hosting provider in order to look for possible violation of the Law.] 
 
Supreme Court, Criminal, R.V., P.03.1427.N/1, February 3, 2004
[copyright, hosting providers, hyperlinks, ecommerce directive, exemptions, safe harbours]
 
[The Supreme Court reviewed the application of the exemptions from liability established in the e-commerce Directive, as implemented by Article 20 of Law of March, 11 2003 related to certain aspects of services of the information society. The exemptions would cover over only cases where the activity of the information society service provider is (i) limited to the technical process of operating and giving access to a communication network (ii) over which information made available by third parties is transmitted or temporarily stored, (iii) for the sole purpose of making the transmission more efficient. (iv) This activity must be of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. In the case at hand, the operator managed a website where third parties with his assistance could post unlawful hyperlinks. The Court stated that no safe harbour exemptions applied to this case.] 
 

Lower Courts

Brussels Court of Appeal, Belgian State v. SABAM, No. 2015/AR/810, June 3, 2016
[copyright, ISP, CMO, fee for online transmission, rejected]
 
[confirming the March 13, 2015 judgment of the Brussels Court of First Instance (see below) and restating that there is no legal basis for SABAM to seek the collection of royalties from ISPs for alleged (unauthorized) communication to the  public of works in SABAM's repertoire.]
 
Brussels Court of First Instance, Belgian Privacy Authority v. Facebook, No. 15/57/C, November 9, 2015
[privacy, data protection, hosting provider, tracking, non-users, social plugins]
 
[TheCourt found that Facebook’s practice of tracking non-users of Facebook’s surfing history through social plugins, even when the user was not accessing Facebook, violated the Belgian Data Protection Law. The proceeding follows a formal recommendation from the Belgian Privacy Commission requesting Facebook to cease the tracking of non-users. The court imposed a penalty of EUR 250,000 per day for non-compliance.] [See also Columbia GFE and  here]
 
Brussels Court of First Instance, Civil, Belgian State v. SABAM, No. 13/12839/A, March 13, 2015
[copyright, ISP, CMO, fee for online transmission, rejected]
 
[(1) SABAM, the largest Belgian collective management organisation (CMO), sought to obtain the payment of a copyright levy from Belgian Internet Service Providers (ISPs) for communicating to the public its repertoire. SABAM claimed that ISPs communicate to the public its repertoire without authorisation. SABAM demanded 3.4 percent of the ISPs' annual user subscription fees as a compensation for piracy  committed by the ISPs' users. 
 
(2) As requested by law, SABAM informed the Economic Federal Public Service (SPF Economie), the administrative authority in charge of overseeing CMOs' activities, about its request to the ISPs. The SPF Economie issued a negative opinion regarding SABAM's proposed levy. After some inconclusive negotiations and an initial action started by SABAM against the ISPs but rejected on procedural grounds, the Belgian Administration brought an action against SABAM before the Court of Brussels for obtaining a judgment declaring the new levy illegal.
 
(3) The Brussels Court of First Instance ruled that the demand of SABAM was contrary to the present legislation. The Court noted that ISPs are neutral internet intermediaries with a passive and technical role and do not communicate to the public SABAM's repertoire. According to the EU e-Commerce Directive, ISPs are classified as mere conduits that are not liable for the information they transmit. SABAM is considering whether to appeal this decision.] [See also CIS Blog]
 
Anvers Court of Appeal, Criminal, Belgacom SA/NV, Scarlet Belgium SA/NV, Edpnet SA/NV & Mobistar SA/NV (The Pirate Bay case II), No. K.379/13 / 2013/697, February, 14 2013
[copyright, access providers, file sharing, torrent, The Pirate Bay, blocking order]
 
[Upholding the request of issuing a permanent blocking order for the primary domain name “thepiratebay.org” and other domain names redirecting to this primary domain name. This criminal proceeding was initiated by a public prosecutor after additional domain names directing to ThePirateBay website, other than those blocked under the civil ruling of September 26, 2011, were registered and put back online. The Court of Appeal upheld the decision issued by the court of first instance. The district court decision upheld a preliminary injunction ordering that all the Belgian Internet operators and distributors must block access to the content hosted by servers linked to the primary domain name "thepiratebay.org" and their IP address 194.71.107.50 and 194.71.107.15, in particular "by employing all possible technical means at their disposal or at least by blocking all domain names that refer to the server linked to thepiratebay.org.“ The order did not contain any exhaustive list of domain names to be blocked or a time restriction.]
 
Anvers Court of Appeal, Civil, The Belgian Anti-piracy federation ASBL/VZW v. Telenet SA/NV & Belgacom SA/NV (“The Pirate Bay case I), No. 3399/Rep. 2011/9314, September, 26 2011
[Belgium, copyright, access providers, file sharing, torrent, The Pirate Bay, blocking order]
 
[Reversing the decision of the Anvers Court of First Instance of July, 8 2010 and ordering Belgian ISPs, Telenet and Belgacom, to block DNS extensions for 11 domain names related to ThePirateBay. The Court clarified that ISPs do not themselves infringe copyright and are not liable for the content transmitting though their services. However, the safe harbours included in the e-commerce Directive do not prevent the court to order them to block infringing webistes, if, according to Article 8.2 of the Infosoc Directive "their services are used by a third party to infringe a copyright or a related right." These blocking orders, the Court continued, do not impose on the ISPs a general obligation to monitor the information that they transmit because the injunction only concerns a number of exhaustively mentioned domain names. The Court specifically rejected the plaintiff's request to extend the injunction to any other ThePirateBay related website that the plaintiff may have reported to the ISPs.]
 
Brussels Court of Appeal, Civil, Scarlet Extended SA/NV v. SABAM (“The Tiscali/Scarlet case”), R.G. 2007/AR/2424, January 1, 2010
[copyright, infringment, access provider, file sharing, p2p, filtering, monitoring]
 
[The Court of Appeal of Brussels had to answer the question whether an internet service provider could be required to install a filtering system with a view to preventing the illegal downloading of files. The Court had to consider the extent to which Internet service providers should support the operational and financial burden of the fight against piracy. Given the complexity of the matter, the Brussels Court of Appeal decided to refer two questions to the ECJ before deciding: (1) Can ISPs be compelled to take preventive technical measures in order to prevent illegal downloading? (2) If yes, to what extent technical and financial burdens can be imposed on them? See also the ECJ's Scarlet Extended judgment.] 
 
Anvers Court of First Instance, Civil, The Belgian Anti-piracy federation ASBL/VZW v. Telenet SA/NV & Belgacom SA/NV (The Pirate Bay case I), No. A/10/5374, July 8, 2010 
[copyright, access providers, file sharing, torrent, The Pirate Bay, blocking order]
 
[The Court rejected the request of blocking eight "ThePirateBay" websites and other “ThePirateBay” websites extensions. The request was filed against two of the biggest Belgian Internet providers, Telenet and Belgacom. The Court rejected the request by arguing that ThePirateBay was online for a long time without a judicial reaction of the Belgian Anti-Piracy Federation (BAPF), and it was unclear which rights BAPF claimed to have been infringed.]
 
Brussels Court of First Instance, Civil, SABAM v. Scarlet SA/NV (“The Tiscali/Scarlet case”), 04/8975A, June 29, 2007
[copyright, infringment, access provider, file sharing, p2p, filtering, monitoring]
 
[In its report filed January, 3 2007, the expert witness presented 11 solutions that can be applied to block or filter file sharing, including 7 applicable to Scarlet/Tiscali. On the basis of this report and the submissions of the parties, the Court ruled that technical solutions do exist to stop copyright infringements of music files via P2P file sharing. Accordingly, the Court ordered Scarlet to implement such measures to prevent future damage, within a period of time of six months and under a penalty of a fine of 2,500 euros per day of violation. Scarlet was also ordered to provide SABAM a description of the measures taken.]
 
Brussels Court of First Instance, Civil, SABAM v. Tiscali SA/NV (“The Tiscali/Scarlet case”), 04/8975A, November, 26 2004]
[copyright, infringment, access provider, file sharing, p2p, filtering, monitoring]
 
[(1) The Court had to answer the question whether an internet service provider could be required to install a filtering system with a view to preventing the illegal downloading of files. (2) The Court confirmed the possibility of introducing an injunction based on copyright infringement against an access provider even if said provider can benefit from the liability exemption regime provided for in the eCommerce Directive. The injunction does not presuppose any prior finding of fault, and therefore liability, on the part of the intermediary. (3) However, if the theoretical possibility of a blocking order against ISPs was confirmed, it remained to be seen if the provider has, in fact, the material possibility to comply with such an order. The Court ordered an expert testimony on this subject and the reopening of the debate (see above).]

OTHER RESOURCES

KU Leuven Interdisciplinary Centre for Law and ICT, http://www.law.kuleuven.be/icri/en
University of Namur, Centre de Recherche Information, Droit et Société (CRIDS), http://www.crids.eu

CONTRIBUTORS

Axel Beelen
Email: axelbeelen at hotmail.com

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