First Belgian case law on spam?
A Belgian commercial court has recently been called to interpret the new opt-in regime for commercial email introduced by the E-commerce Directive 2000/31/EC of 8 June 2000 and the Privacy and Electronic Communications Directive 2002/58/EC of 12 July 2002, as implemented in Belgium by the E-commerce Law of 11 March 2003 (hereafter “the E-commerce Law”) and the Royal Decree on Spam of 4 April 2003. It is the first published case law of this kind in Belgium.
Facts of the case
Litigation (between two competing web-advertising companies) was mainly based on a violation of the Belgian Trade Practices Law (Law of 14 July 1991), but also involved an alleged infringement of Article 14 of the E-commerce Law regarding the use of unsolicited commercial email.
The claimant alleged that the defendant had been sending unsolicited commercial emails to recipients that were listed in the claimant’s prospects database alleging that a former employee had copied the claimant’s prospects list and disclosed it to the defendant after being hired by the latter. The claimant sought an injunction to prohibit the defendant from using the information disclosed to it; in particular from using information to send unsolicited commercial emails. The defendant stated that it had selected all recipients from its own prospects database and that the opt-in regime under the E-commerce Law did not, as such, prohibit the sending of commercial email to existing email contacts.
The court decision: “the opt-in consent of the recipient can be implied”
The commercial court dismissed the claim. Its decision however contains an interesting interpretation of the opt-in regime laid down in Article 14 of the E-commerce Law.
Article 14 §1 of the E-commerce Law stipulates that the use of email for direct marketing purposes is prohibited without the “prior, freely given, specific and informed consent of the recipient”. The article further prescribes that the sender of the email must include, with each email, a clear and understandable message informing the recipient about his right to object to any further sending of commercial email to his email address. Equally, the sender of the email must include appropriate (technical) means allowing each recipient to exercise his right to object.
In its decision, the court points out that Article 14 of the E-commerce Law does not define under which form the recipient of the email should give his consent. According to the court, such consent can, consequently, be implied. In the same way, the court observes that the E-commerce Law does not contain any specific procedure for the sender of the email to obtain the prior consent of existing recipients wishing to continue to receive commercial email after the coming into force of the E-commerce Law.
The interpretation given by the court to Article 14 (“opt-in consent can be implied”) does not appear to be in line with the provisions of the Privacy and Electronic Communications Directive 2002/58/EC. Article 17 of this Directive states that “consent may be given by any appropriate method enabling a freely given specific and informed indication of the user’s wishes (…)”. A specific indication (such as ticking a box) is therefore required. For the meaning of the word “consent”, the Privacy and Electronic Communications Directive is also referring to the Directive 95/46/EC on the processing of personal data, that requires an unambiguously given consent of the data subject (Article 7.a).
According to the court, the anti-spam provisions of the E-commerce Law are not meant to oblige senders of emails to destroy all their existing prospects lists. On the contrary, Article 14 of the E-commerce Law would explicitly authorise senders of emails to continue to use the existing prospects lists for the sending of commercial email after the coming into force of the opt-in regime of the E-commerce Law.
Consequently, even under the new opt-in regime, senders of emails would be allowed to continue to send commercial email to their existing email contacts since all recipients should be considered to have accepted commercial email prior to the coming into force of the opt-in regime. In other words, the fact that the recipients were on the mailing list of the sender of the email at the time of the coming into force of the opt-in regime means that these recipients have not used their right to opt-out under the old regime.
Of course, when sending email under the new regime, senders of emails should give their existing recipients the opportunity to opt-out for the future (and remove recipients from their mailing list in case of opt-out).
It will be interesting to see whether the observations of this commercial court regarding the spam provisions of the E-commerce Law will be of any further guidance for the development of Belgian anti-spam case law.
In October 2003, the Belgian Data Protection Commission issued a (non-binding) statement in order to specifically highlight the omission of the Belgian legislator to regulate the issue of contact data collected before the coming into force of the E-commerce Law. The Privacy Commission proposed a pragmatic solution to the problem by suggesting that senders of emails who had collected their data in a lawful and fair way prior to the coming into force of the E-commerce Law should be allowed to use their existing contact lists one more time in order to offer their contacts the possibility to opt-in for future direct marketing email. In its statement, the Data Protection Commission suggested a deadline of two months following the coming into force of the E-commerce Law (31 October 2003). This solution should allow senders of emails to maintain their existing databases (that are often the result of a considerable investment). The Data Protection Commission also issued standard wording for senders of emails wishing to send such a final email to their contacts before 31 December 2003.
The present court order does not seem to conflict with the Data Protection Commission’s suggestion as such. It does not, however, define any specific time period for the senders of emails to send an email to their existing contacts, as the Data Protection Commission did previously. (The court order does not refer to the Data Protection Commission’s statement of October 2003).
First published in the March 2004 issue of World Internet Law Report.
 Commercial Court of Nivelles, 26 November 2003, http://www.droit-technologie.org
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. The law may have changed since first publication and the reader is cautioned accordingly.