In January 2011, several Belgian members of the Parliament introduced the Proposition de loi favorisant la protection de la creation culturelle sur internet -- or “A Proposal to Foster the Protection of Cultural Creations on the Internet” (the Proposal). Mimicking the French HADOPI legislation, the Proposal would create a four-strikes policy for Internet users accused of copyright infringement. The Proposal, which has thus far not been adopted, includes troubling provisions for tasking ISPs to block sites that allegedly facilitate the sharing of copyrighted works, disclosing the personal data of alleged infringers, and shutting off the Internet access of repeat infringers.
In the first instance of infringement, users receive a warning (Article 17.1). The second time a user infringes on copyright results in a fine if the new violation takes place within six months of the initial warning (Article 17.2). On the third violation, a public prosecutor is notified, who then decides whether to bring the case to court or offer a financial settlement (Article 18). Once brought to court, a judge can impose a fine and/or restrict the user’s access to a public online communication service. At this point, only broadband Internet can be blocked, which renders downloading extremely difficult. Finally, in any case of repeated infringement (four or more times), access to the Internet can be completely severed and the fine can be doubled (Article 18.8).
Like the French Hadopi law, the Belgian Proposal plans to introduce a graduated response plan to copyright violations. The Belgian Proposal is slightly less severe than the French Hadopi law in that only broadband Internet is cut off at the third stage. Access to the Internet is entirely disconnected upon additional instances of infringement.read more...
Two Belgian laws seem to suggest ways for filtering websites that host infringing content: the Intellectual Property Act (30th June 1994), and the Act Regarding Certain Judicial Aspects within the Information Society (11th March 2003).
The 1994 Act provides that, when an infringer uses the services of an intermediary to perpetrate copyright infringement, the rightsholder can petition the court to issue an order against that intermediary (Article 86ter). The main principle of the 2003 Act is that of “mere conduit”, exonerating ISP’s – under certain conditions – from liability for transmitting information (Articles 18-20). Whenever an ISP becomes aware of illegal activity (i.e. illegal file-sharing), it must immediately inform the Public Prosecutor and can block access as long as the prosecutor has not made a decision (Articles 20 §3, 21 §2).
Apart from the ISPs being obliged to notify the prosecutor of any infringement, Ministry officials can investigate possible infringements as well. Ministry officials can send a warning and/or propose a settlement fine to the user and, at a later state, notify the public prosecutor (Articles 22-24).
Recent case law developments, both in Belgium and in other Member States, indicate that ISPs may indeed be asked to render specific websites inaccessible to their subscribers when copyright infringements have taken place on these websites. The court will then rule upon the blocking procedure. In a recent case, the Court opted for DNS-blocking instead of IP-blocking, believing IP blocking would burden ISPs too heavily. The recent ECJ decision in the Scarlet v Sabam Case, however, will most likely put Belgian case law back on the right track. In this landmark case, a Brussels Court of Appeals had asked the European Court of Justice whether an ISP can be ordered to preventively filter and block electronic communications for copyrighted material. The ECJ ruled such filtering and blocking would be contrary to EU law and would violate fundamental civil liberties such as people’s privacy, freedom of information and free speech. For more information, see our page on EU law.read more...
After having been notified about a copyright infringement, the public prosecutor could demand the ISP to collaborate by turning over all files in its possession or by allowing access to its customer database. Under the current proposal, the ISP would subsequently have to designate an internal “Judicial Coordination Cell” which would collaborate with the judicial authorities.
In some circumstances, the “Judicial Coordination Cell” would directly allow the NTSU-CTIF, an interception service of Belgian police, to consult the ISP’s databases.
The referrals would contain much personal data of the user, including timestamp, payment details, IP address and data to identify the computers of all parties involved. Originally a time limit of 24 months was proposed, but the Privacy Commission rightly advised a shorter period. Thus, if the proposal were to pass, the referrals would be stored for 12 months. Files would be automatically erased after this time. ISPs would receive compensation for additional costs associated with the storage of the files.read more...