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LEGISLATION

Law on Electronic Communications, January 01, 2008 [English version] [(1) According to the Law on Electronic Communications (LEC), Information Service Providers (ISPs) are obliged to guarantee the confidentiality of communications by undertaking all the necessary technical and organizational measures.  (2) The LEC provides for a data retention regime, which is only available to criminal enforcement authorities for serious crimes and computer crimes. Under Article 13(2) of LEC “the information shall not be stored for any period longer than the one that is reasonably necessary for the transmission." Public authorities may rely also on the disclosure provisions in the Code of Criminal Procedure.  (3) ISPs are not supposed to disclose any information unless it is requested by the court, in connection to a particular civil, criminal or administrative case. Law on Electronic Commerce (LEC) does not stipulate an obligation for the ISPs to cooperate and disclose information.]  Code of Civil Procedure, No. 59/2007, July 20, 2007 [English version] [In a civil or administrative case the court can base a request of information disclosure either on Article 190 of the Civil Procedure Code (CPC) if the ISP is participating to the trial or on Article 192 (2) of CPC if the ISP is not participating to the trial and is therefore a third party. (1) According Article 190 of CPC “each party may approach the court with a request to obligate the other party to present a document in the possession thereof, explaining the relevance of the said document to the dispute”. Article 191 (1) of CPC includes an exhaustive list of the circumstances in which the party could refuse to present the information requested  by the court under Article 190, including the case in which “this would lead to defamation or to criminal prosecution of the party or of any relatives”.  (2) Under Article 192 (2) of CPC, if the ISP is a third party and  does not participate to the  trial, one of the parties can ask the court to issue a court order addressed to any third party, requesting them to disclose information which could be relevant for the trial. There are no grounds on which the ISP can deny to present the information requested unless he does not possess it.  (3) If an ISP simply refuses to present the requested information to the  court, he faces only a fine, under Article 87 CPC, up to BGN 300 (approximately 166 USD). The fine for any breaches which impede the course of proceedings or which are re-committed shall be up to BGN 1,200 (approximately 666 USD), in a civil or administrative case (Article 91, CPC) or up to 1000 BGN (approximately 555 USD) in a criminal case (Article 133 (2), Criminal Procedure Code).] Law on Electronic Commerce (spec. Art.13-18), December 24, 2006 [English version] [(1) The liability of Internet Service Providers (ISPs) is regulated by the Law on Electronic Commerce. The law is implementing the Directive 2000/31/EC (E-Commerce Directive) on electronic commerce regarding ISP liability.  (2) The provisions of this act aim mainly to limit the liability of ISPs by explicitly determining the cases where an ISP might not be held liable, which differ depending on the type of services provided (i.e, hosting, linking, safekeeping in cache memory, etc). Further, the lack of a general monitoring obligation on ISPs is also stated as a principle, providing that the ISP is obliged neither to monitor the information which it stores, transmits or makes accessible in the process of provision of information society services, nor to look for facts or circumstances indicating illegal activity.  (3) The provisions of the EU E-Commerce Directive regarding ISP liability and the EU Enforcement Directive 2004/48/EC are not fully implemented in the Law on Electronic Commerce, for example the requirements for the ISPs to terminate or prevent infringements upon an order by a court or administrative body, under Art. 12.3 and Art.15.2 of the E-Commerce, are not implemented yet.] [See also a Comparison between Intermediary Liability Legislation in Europe and Bulgaria by ILAC team, Nikola Penchev and Bianka Bikova.] Personal Data Protection Act, January 01, 2002 [English version] [(1) According to this Act, personal data shall be considered any information related to a natural person that has been identified or can be identified directly or indirectly through an identification number or through one or more specific indications. The Personal Data Protection Act (PDPA) generally implements the provisions of EU Directive 95/46 (the Data Protection Directive). Special regulations are provided in the Law on Electronic Communications (see above).  (2) All the administrators or controllers of personal data are obliged to register as such with the Personal Data Protection Commission (PDPC). However, the administrator may commence processing once the application is filed (i.e., prior to the actual registration).  (3) The PDPA provides that the collected data may be processed only in certain cases and for certain purposes, exhaustively listed in the act. A general prohibition on the processing of sensitive data (data that disclose race or ethnic origin, political, religious or philosophical beliefs, as well as data related to health, sexual life or the human genome) is also provided, listing the cases where this prohibition shall not apply.]

• Ordinance No. 1 on the minimum level of the technical and organisational measures and the permissible type of personal data protection [Recently, on the basis of the Personal Data Protection Act, the Personal Data Protection Commission adopted Ordinance No. 1, which imposes to set up a minimum level of technical and organizational measures in order to collect, store and process data.] Law on Copyright and Neighboring Rights,  August 01, 1993 [English version] [There is a contradiction between the applicable Rules of CIvil Procedure and the Law on Copyright and Neighboring Rights (LCNR), which requires a pending civil proceeding to be initiated before identification of infringers may be requested.  In contrast, rules of civil procedure do not allow a court to open the civil case without the identification of the defendant at least by name. This means that while Bulgarian law implements the right of information provided by Article 8(1) of the EU Enforcement Directive, its exercise is hindered by civil procedure rules.] Criminal code (spec.  Art.172a-174, Article 159(1) and 159(3)), May 01, 1968 [English version] [(1) Under the LCNR and the Criminal Code (CC), it is illegal to “upload (reproduction), distribute and make available (broadcast), transmits infringing content” on the Internet. Article 172а (1) of the Criminal Code states that “[e]very person who uploads (reproduces), distributes and makes available infringing content or transmits, or makes any other use of the object of a copyright or neighboring right without the consent of the rightholder as required by law, shall be punished by up to five years imprisonment and a fine up to BGN 5,000”. The LCNR in  § 2 (3-5)  defines the terms “upload (reproduction)”, “distribute” and “make available (broadcasting)”. Both the Internet providers hosting the infringing materials and the end users who upload (reproduce) may be held liable under this provision because the law does not make any difference on how the infringement is made and “every person” may be held liable under this provision.  (2) Legal provisions for blocking access to child pornography exist. Whoever produces, exhibits, broadcasts, offers, sells, lends or in any other way circulates works of pornographic content involving a minor, underage person, or a person with such an appearance shall be imprisoned for up to five years.] Law of Obligations and Contracts (spec. Art.45(1) ), January 1, 1951 [English version] [Providing a general principle of civil liability according to which any person is liable for the damages it causes. Every person must redress the damage he has guiltily caused to another person. In all cases of tort, guilt is presumed until proven otherwise.]

BILLS AND PENDING PROPOSALS

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

DECISIONS

Superior Courts

Constitutional Court of Bulgaria, Case No 8/2014 г, March 12, 2015 [Bulgaria’s Constitutional Court ruled on March 12 to declare provisions in the Electronic Communications Act Art.250а-251а mandating the bulk collection of telecommunications data as unconstitutional. The unconstitutional provisions required telecommunication service providers to save all traffic data for a period of one year, which can be extended by a further six months at the request of law enforcement. Additionally, the provisions also breached the constitutional rights of privacy and the freedom and confidentiality of correspondence and all other communications. ] Sofia Administrative Court, Decision № 5920/2012 (administrative trial case № 6859/2012), acting in Cassation, November 7, 2012 [(1) The Consumer Protection Commission (CPC) was claiming that an ISP hosting a website with false and misleading real estate advertisements was engaging in unfair commercial practice contrary to Article 68d of Consumer Protection Act (CPA). (2) The court found that the investigation made by the administrative authority, the CPC, imposing penalties, was not sufficient to identify who committed the offence. It was not proven that the defendant should be regarded as an ISP at all. Some evidences may have led to the conclusion that the ISP was a hosting provider but it was never proved in the course of the investigation that he was acting in this capacity. (3) The simple listing of company names with references to websites with the same names, was considered as insufficient by the court to prove in a definitive way the relation between the defendant and the offence of posting false advertisements under Article 68c and 68d (4) of the CPA. (4) The Sofia City Administrative Court, before which the appeal was held, confirmed the first instance decision of the Sofia Regional Court, canceling the CPC's penalty and stating that the offence was not proven. (Please note that the Administrative Court in Bulgaria acts as an appellate court of last resort reviewing the administrative cases held before the Regional Courts in first instance.)]

Lower CourtsSofia Regional Court, Decision № -/2013 (administrative trial case № 8308/2012), June 10, 2013[spam, ISP, notion] [(1) Plaintiff sent internet users unsolicited bulk e-mail, commonly known as "spam," to promote its internet business and  website. The recipients of these unsollicited communications filled complaints with the Consumer Protection Commission (CPC) under Art.6 (3) Law on Electronic Commerce (LEC) against the website, without knowing the identity of the website owner.The CPC found that the domain eroticnetwork.bg is registered by a physical person who is also enlisted as an administrative and technical contact person. (2) The plaintiff claimed that he is not to be considered as an ISP, because he is a physical person and is not registered as a commercial entity under the Commercial Act. (3) The court considered Article 13 (1) of LEC stating that: “Upon providing access to or transmission trough electronic communication network the service provider shall not be liable for the content of the information transmitted and for the activities of the recipient of the service, if the provider: 1. does not initiate the transmission of the information; 2. does not select the receiver of the information transmitted, and 3. does not select or modify the transmitted information.” The court also considered Article 3(1) of LEC under which “Internet Service provider shall be any natural or legal person that provides services for the information society." The act of registering a domain and giving access to it to users by providing them with username and password for the website, the Court stated, represented such a service. The court also found that the plaintiff is the registrant and administrator (the one providing passwords and access to users) to the domain in question - eroticnetwork.bg. (4) Based upon this the court has found that the plaintiff should be considered  as an ISP, which violated the Art.6 (4) of LEC and Art.6 (3) of LEC for sending unsollicited communications.]

Administrative EnforcementCompetition Protection Commission, Net Info and others vs. Google Irland and Google Inc., No. 395 (May 12, 2015) (1) The Bulgarian online media companies Net Info and V Box—Bulgaria's largest video sharing portal—filed a complaint with the Competition Protection Commission (CPC) against Google and its video portal YouTube. The plaintiff claimed that Google violated Articles 29 and 36, para.1 of the Law on Protection of Competition. Article 29 states that “Any action or omission when carrying out economic activity, which is contrary to good faith commercial practices and damages or may damage the interests of competitors shall be prohibited.” Article 36 (1) provides that “Carrying out unfair competition, aimed at soliciting clients, as a result of which existing agreements are terminated or breached, or entry into such agreements with competitors is prevented, shall be prohibited.”) (2) The complaint was prompted by the fact that during the election campaign in Bulgaria in 2014, YouTube was showing ads for various Bulgarian political parties and candidates without complying with the provisions of Art. 138a of the Election Code, which obliges the providers of media services to announce on their web sites information about the contracts concluded with the parties, coalitions and nomination committees that have registered candidates and/or with another contracting authority in connection with the election campaign, if the contract has been concluded with an intermediary. They are also required to present to the Audit Office and the Central Electoral Commission clear advertising tariffs for the political parties during the campaigns. Google did not do so and thus the aims of the Election Code were diluted which led to alleged breach of the Art. 29 and art.36, para.1 of the Law on Protection of Competition. (3) The plaintiff claims that “although the Election Code does not apply to the social networks, YouTube is not to be considered a social network.” Under § 20 of the Supplementary Provisions of the Election Code “Media service provider” shall be “a sole-trader natural person or a legal person who or which has editorial responsibility for the choice of the content of the media service and determines the manner in which the said service is organized.” (4) The main argument of the plaintiff is that both the respondent and themselves are to be qualified as Media service providers ergo they should be both subject to the abovementioned obligations. The CPC issued Decision No 395-12/05/2015 in favor of the defendant. This decision is now appealed before the Supreme Administrative Court (last instance).

OTHER RESOURCES

Comparison between Intermediary Liability Legislation in Europe and Bulgaria by ILAC team, Nikola Penchev and Bianka BikovaInternational Legal Advice Center, www.ilac.eu

CONTRIBUTORS

Ginka Hristova ILAC-International Legal Advice CenterEmail address: ilegcenter@gmail.com[personal page]

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