Belgium: New Bill Amending Various Rules On Data Protection And Electronic Communications

On 5 April 2012, a new bill amending various provisions concerning Electronic Communications (the "Bill") was submitted to the Belgian Parliament. The Bill amends various provisions of the Telecommunications Law (Wet van 17 januari 2003 betreffende de rechtsmiddelen en de geschillenbehandeling naar aanleiding van de wet van 17 januari 2003 met betrekking tot het statuut van de regulator van de Belgische post- en telecommunicatiesector / Loi du 17 janvier 2003 concernant les recours et le traitement des litiges à l'occasion de la loi du 17 janvier 2003 relative au statut du régulateur des secteurs des postes et télécommunications belges). It also modifies various provisions of the Electronic Communications Law (Wet van 13 juni 2005 betreffende electronische communicatie / Loi du 13 juin 2005 relative aux communications électroniques).

As regards data protection, the Bill implements EU Directive 2009/136/EC (amending among other things the ePrivacy Directive) and EU Directive 2009/140/EC of 25 November 2009 (amending several Directives on electronic communications networks and services) and establishes new rules on: (i) data breach notification for electronic communication services; (ii) the use of cookies; and (iii) users' protection against unsolicited phone calls ("Cold Calling").

Data Breach Notification

The Bill establishes an obligation for publicly available electronic communication services (i.e., a service normally provided for remuneration which consists mainly of transmitting signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting) to report security breaches (cfr. Article 4.3 of the amended ePrivacy Directive). This includes an obligation to report breaches affecting personal data. If such a breach occurs, the electronic communication service provider must inform the Belgian Institute for Postal Services and Telecommunications (Belgisch Instituut voor Postdiensten en Telecommunicatie / Institut belge des services postaux et des télécommunications – "BIPT"). In addition, if the breach is likely to affect the privacy of the data subject negatively, the electronic communication service provider must also inform the data subject, unless it can prove that it adopted adequate security measures which make the relevant data illegible to any third party. In other words, the electronic communication service provider may be exempt from the obligation to inform data subjects if it has encrypted the data.

The Bill furthermore details which information needs to be provided to the data subject (if applicable) and to BIPT which may adopt further guidelines on the notification of data breaches.

Finally, the electronic communication service provider is required to keep a record of the data breaches.

In its opinion on the Bill's provisions that concern data protection, the Belgian Privacy Commission (Commissie voor de bescherming van de persoonlijke levenssfeer / Commission de la protection de la vie privée) acknowledges the fact that data breaches must be notified to BIPT and not to the Privacy Commission. To avoid diverging interpretations of applicable data protection rules, it is of the opinion that the Bill should provide for cooperation between BIPT and the Privacy Commission.

In addition, the Privacy Commission is of the opinion that the rules contained in the Bill are insufficiently clear and requests that more detailed provisions be determined by Royal Decree.

Lastly, the Privacy Commission regrets the exemption from the obligation to inform data subjects in case the relevant data are encrypted. According to the Privacy Commission, this exemption defeats the purpose of the data breach notification obligation. However, it should be noted that the exemption for encrypted data is also contained in the amended ePrivacy Directive.

Cookies

The Bill furthermore implements the rules on cookies and spyware contained in the amended Article 5.3 of EU Directive 2002/58/EC. The Bill introduces an opt-in system (i.e., the user's consent is required to install cookies) to replace the existing opt-out system (i.e., users are deemed to consent unless they choose to opt out). However, for some cookies which have only a technical function or cookies necessary for the performance of a service, opt-in is not required.

The Privacy Commission states that the terms used in the Bill are not sufficiently clear for the average user to understand when consent is due. In addition, it is of the opinion that the rules fail to take account of the real situation, that is in particular the use of standard browser settings, the undesired effect of pop-ups requesting consent and the failure to inform the users.

To remedy these shortcomings in the Bill, the Privacy Commission calls for additional guidance.

Cold Calling

With regard to unsolicited communications, the Bill sets out the rules allowing to opt out of Cold Calling by registering on the opt-out list held by the Belgian Direct Marketing Association.

The Privacy Commission states that the Bill fails to implement the amended Article 13 of Directive 2002/58/EC. This Article provides that the Member States should take appropriate measures to ensure that Cold Calling and other unsolicited communications for the purpose of direct marketing are not allowed (i) either without the consent of the subscribers or (ii) if the users or subscribers objected to such use. The Directive therefore proposes two alternative options from which the Member States must choose one. According to the Privacy Commission, the Bill does not determine the chosen option.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions