Electronic Communications in Belgium – A move forward
On 16 December 2021, the Parliament adopted the law (the “2021 Law”) transposing Directive (EU) 2018/1972 of 11 December 2018 establishing the European Electronic Communications Code (“EECC”). This new law amends, among other legislative texts, the old law of 21 March 1991, the Electronic Communications Act of 13 June 2005 (“ECA”) and the Data Protection Act of 30 July 2018 (“DPA”). This transposition took place with almost one year of delay as the Directive was due to be transposed into Belgian law by 21 December 2020.
EECC’s key innovations incorporated in Belgian law
The EECC aims at promoting innovation and investment in high-capacity networks (such as 5G) across the EU. Key innovations foreseen by the new legislation include:
- the extension of the legislative scope of electronic communications to internet-based services such as messaging services (e.g. WhatsApp, Messenger), webmail services (e.g. Gmail, Hotmail) and video calls (e.g. Skype, Zoom);
- the harmonisation of radio spectrum policies with coordination between the Member States and the EU Commission, including provisions facilitating market entry for new players and shared use of radio spectrum;
- strengthening consumer rights with more transparency and restrictions on contract duration and termination;
- the extension of the universal service obligations to include the access to high-speed internet at an affordable price;
- encouraging investments in very high-capacity networks by relieving the service providers with significant market power (“SMPs”) of some of their regulatory burdens; and
- reinforcing the power of the Belgian Institute for Postal Services and Telecommunications (“BIPT”) to facilitate access, interconnection and interoperability of services.
ECA and DPA’s relevant updates
The 2021 Law also updates the Belgian legal framework, including the ECA and DPA, to ensure consistency at national level.
Importantly, the so-called “cookie rule” that requires consent for the use of non-essential cookies and certain rules in relation to call recording to evidence commercial transactions and monitor call centre quality will be moved from the ECA to the DPA as a result of the 2021 Law.
This will formally establish the competence of the Belgian Data Protection Authority (the “Authority”) in relation to cookies and such call recordings, although in practice the Authority has already intervened in these areas on the basis of its pre-existing competences under both the DPA and the GDPR.