On 1 September 2016, the Belgian legislator adopted the Act amending Article 127 of the Act of 13 June 2005 regarding electronic communications and Article 16/2 of the Act of 30 November 1998 regarding the intelligence and security services (the “Act”). Afterwards on 27 November 2016, the Belgian government also adopted the Royal Decree setting forth the conditions for the identification of users of prepaid calling cards (the “Royal Decree”).
Both the Act and the Royal Decree set forth the modalities whereby telecom operators are required to identify their telecommunications service subscribers.
The identification obligations imposed by the Act and Royal Decree are adopted to accommodate law enforcement agencies’ need to facilitate the identification of telecommunication subscribers in investigations regarding terrorism and human trafficking.
Although “postpaid” subscribers of telecom services were already identified for, i.a., billing purposes, the Act and the Royal Decree broaden the scope and the modalities of such identification obligation. By (i) amending Article 127 of the Act of 13 June 2005 regarding electronic communications (the “BECA”) and (ii) adopting the Royal Decree, the Belgian legislator has extended the scope of the identification obligation to “prepaid” subscribers also.
In essence, the Royal Decree provides that, upon request of the telecom operator, a user of a prepaid card should identify himself or herself by using one of the means set forth in the Royal Decree. Such identification should be carried out by ways of (i) verifying the identification documents of the prepaid subscriber in this person’s presence, (ii) an online verification of the prepaid subscriber via his or her electronic identity card, (iii) verifying the identity of the prepaid subscriber through a provider of identification (verification) services, (iv) verifying an online payment transaction regarding the prepaid telecom card and provided that such payment transaction is performed by using the services of a payment service provider, (v) linking the prepaid card to existing telecommunication service subscriptions of the prepaid user, or (vi) verifying the prepaid subscriber’s identity by using electronic communication means provided that the use of such means previously approved by the Ministry of Justice.
Meanwhile, on 19 December 2016, the own methods of verification of Telenet and Scarlet, two Belgian telecom operators, have been approved by the Ministry of Justice and the Ministry of Telecommunications. However, such authorization can be revoked at any time when the reliability of the identification can no longer be guaranteed, taking into account the accuracy, completeness, coherency, security and integrity of the identification data.
Regarding the enforcement of the identification obligation, the Act provides that if telecom operators fail to identify their subscribers, they (i) are prevented from providing telecommunications services to unidentified subscribers and (ii) are obliged to terminate the subscription of such subscriber. However, given (i) the significant number of users of prepaid calling cards in Belgium and (ii) the practical encumbrances for telecom operators, the legislator allowed a grace period of 6 months from the date of entry into force of the Royal Decree.