On 20 November 2013, the Court of Appeal of Antwerp partially confirmed the Criminal Court of Dendermonde’s judgment dated 2 March 2009. The Criminal Court convicted Yahoo! and obliged it to disclose the identity of the persons who committed fraud via their Yahoo! e-mail accounts.
The public prosecutor of Dendermonde had requested US-based Yahoo! to disclose the identity of certain people who used their Yahoo! e-mail accounts to commit Internet fraud. The public prosecutor’s charge against Yahoo! was based on Article 46bis of the Criminal Procedure Code, which obliges electronic communication services providers to disclose identification data to law enforcement agencies when these agencies request them. Although Yahoo! is established in the US and has no branch or office in Belgium, the public prosecutor was of the opinion that Yahoo! is considered an electronic communications service provider and is consequently obliged to comply with law enforcement agencies’ request for such information.
Yahoo!, however, refused to disclose the identification data, arguing that it is not subject to Article 46bis of the Criminal Procedure Code because it was not an electronic communications service provider. According to Yahoo!, the term “electronic communications service provider” in Article 46bis of the Criminal Procedure Code had the same meaning as the term “electronic communications service provider” in Article 2 of the Electronic Communications Act of 13 June 2005. Since this Article 2 states that a provider of information society services, such as providers of free e-mail addresses, are not considered a provider of electronic communications services, Yahoo! asserted that it was not obliged to disclose identification data to the public prosecutor.
The Criminal Court of Dendermonde did not follow Yahoo!’s argument, but Yahoo! challenged the decision successfully before the Court of Appeal of Ghent. However, the public prosecutor appealed this decision before the Court of Cassation, and this Belgian supreme court on 18 January 2011 held that the term “electronic communications service provider” in Article 46bis of the Criminal Procedure Code has an autonomous meaning. Therefore, it does not have the same meaning as that in Article 2 of the Electronic Communications Act. In the Court of Cassation’s opinion, a provider of a service which allows its users to gather, disclose, or distribute information by using an electronic communications network is considered an electronic communications service provider within the meaning of Article 46bis of the Criminal Procedure Code.
The case was afterwards referred to the Court of Appeal of Brussels. This Court, on 12 October 2011, took the position that the Court of Cassation’s order had not been validly communicated to Yahoo!. In the Court of Appeal’s opinion, the mere fact that it is technically possible for the public prosecutor to contact Yahoo! from the Belgian territory by means of electronic or other means of communication is not sufficient. The public prosecutor lodged a second appeal before the Court of Cassation, and this Court found, on 4 September 2012, that the public prosecutor’s sending of his written request within the meaning of Article 46bis of the Criminal Procedure Code (whereby the cooperation is required from an operator established outside Belgium) from Belgium to a foreign address does not render the request invalid. The case was then referred to the Court of Appeal of Antwerp. This Court confirmed the applicability of Article 46bis of the Criminal Procedure Code and fined Yahoo! € 44 000 and € 22 000 of this sum is conditional over a three-year period.
This Court concurred with the Criminal Court of Dendermonde that Yahoo! was “virtually” located in Belgium by offering electronic communications services in Belgium and that the offence of refusing to provide the public prosecutor with the required identification data took place in Belgium. The Court added that if Yahoo! is not willing to comply with the requirements of Article 46bis of the Criminal Procedure Code, it may decide to exclude Yahoo!’s IP-range from Belgium. The Court, however, did not order the disclosure of identification data since the public prosecutor did not insist on it anymore.
The case can be found on http://www.ie-forum.be