Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.

Digital content and IP issues

Required notices

Are websites and any other digital content required to display certain legal notices or other information in your jurisdiction?

The legal notices relating to digital business that should be given are listed in Article XII.6 of the Code of Economic Law. These notices supplement the notices that should be given in all circumstances (digital or otherwise) and include:

  • name;
  • address;
  • e-mail;
  • codes of conduct;
  • languages in which an agreement can be concluded;
  • different steps that must be completed to conclude a contract; and
  • price (clear and unambiguous, including reference to whether or not taxes and delivery costs are included).  

Liability for content

What rules govern liability for online or other digital content that is defamatory or infringes another party’s IP rights?

In general, it is the person who posted the defamatory or infringing content who is held liable in the first place. Depending on the circumstances, liability will be based on the relevant law (eg, commercial law or trademark law).

The EU E-commerce Directive (2000/31/EC) created a safe harbour for internet intermediaries and has been implemented in Belgian law (Articles XII.17-XII.19 of the Code of Economic Law). As a result, internet intermediaries performing mere conduit, caching and hosting activities can in principle not be held liable, however, this is subject to a number of exceptions.

How can liability be excluded or limited?

The EU E-commerce Directive (2000/31/EC) created a safe harbour for internet intermediaries and has been implemented in Belgian law (Articles XII.17-XII.19 of the Code of Economic Law). As a result, internet intermediaries performing mere conduit, caching and hosting activities can in principle not be held liable; however, this is subject to a number of exceptions.

Which parties can be held liable for defamatory or infringing content? Can contingent liability be extended to internet service providers (ISPs)?

In general, it is the person who posted the defamatory or infringing content who is responsible. Depending on the circumstances, liability will be based on the relevant law (eg, civil law (tort), commercial law or trademark law).

The EU E-commerce Directive (2000/31/EC) created a safe harbour for internet intermediaries and has been implemented in Belgian law (Articles XII.17-XII.19 of the Belgian Code of Economic Law). As a result, internet intermediaries performing mere conduit, caching and hosting activities cannot be held liable, subject to a number of exceptions. Internet service providers generally fall under one of these exemptions.

Content takedowns

What rules and procedures govern content takedowns? Can ISPs remove defamatory or infringing content without permission?

Regarding caching, internet intermediaries must act expeditiously to remove or disable access to information upon obtaining actual knowledge of the fact that the information has been removed at the initial source or that a court or administrative body has ordered its removal (Article XII.18 of the Code of Economic Law).

Regarding hosting, the internet intermediary must report immediately to the public prosecutor if it notices illegal activity or receives information about an illegal activity. The public prosecutor takes the necessary measures in accordance with the Code of Criminal Procedure. Provided the public prosecutor has not taken a decision with regard to copying, making inaccessible and removing the data stored in an IT system, the service provider can only take measures to prevent access to the information (XII.19 of the Code on Economic Law).

In general, hosting, caching and mere conduit practicing intermediaries must immediately report to the judicial or administrative authorities if they notice illegal activity or information (Article XII.20 Section 2 of the Code on Economic Law).

Domain names

What rules, restrictions and procedures govern the licensing of domain names?

Articles XII.22 and XII.23 of the Code on Economic Law contain specific rules regarding domain names. Registering a domain name with the aim of harming a third party or enjoying an unfair advantage if that domain name is identical or similar to the rights of a third party so that it creates a risk of confusion is prohibited. This rule must be supplemented by all other relevant legal provisions regarding the protection of:

  • trademarks;
  • geographical indications and designations of origin;
  • trade names;
  • copyrights and all other IP rights;
  • legal provision on unfair competition; and
  • market practices.

How are domain name disputes resolved in your jurisdiction?

Disputes are resolved by alternative dispute resolution proceedings. In Belgium, disputes regarding the ‘.be’ domain name are generally handled through alternative dispute resolution before the arbitration institute CEPANI/CEPINA. 

IP protection measures

What special measures and safeguards should rights holders consider in protecting their online/digital content?

To the extent that it is original and expressed in a certain form, digital or online content is automatically protected by copyright without the need for registration. However, in order to establish priority, rights holders may consider an e-deposit of their website. Further, trademarks used online will need to be registered in order to be protected.

Click here to view full article.