The Belgian regulatory authority BIPT has issued (at the request of the Minister) a consultation document requesting market participants to provide input and impact assessments on proposals being debated in the Federal Chamber of Representatives, putting forward significant modifications to the Law on Electronic Communications.

The purpose of the proposals (and proposed amendments thereto) is to facilitate the process for users switching from one Internet Service Provider (ISP) – and presumably also from one e-mail provider/web hosting provider – to another.

The bill (filed by representatives Roel Deseyn and Jef Van den Bergh on 26 May 2009), entitled 'modification of the Law with regard to the changing of operator', is very short (3 articles fitting on a single – bilingual – page), indicates that users are inhibited from switching from one ISP to another by the fear of losing their e-mail address and hosted web pages, and seeks to facilitate switching by requiring (if the user requests it) free of charge temporary e-mail forwarding and URL redirection for a period of 6 months after contract termination. It also requires the service provider to inform users of this possibility upon contract termination.

On 8 July 2009, amendments were filed, including by one of the original authors of the bill (Roel Deseyn), which entail:

  • Introduction of definitions of “number”, “e-mail address” and “e-mail” in the Law (whereby an e-mail address becomes a subset of a “number”, and whereby the concept of “e-mail” includes text, speech, sound and image messaging, with a user-server interaction), as well as an amended definition of URL compared to the original bill, and a definition of “domain name”.

  • Introduction of an e-mail and URL 'capture' mechanism, whereby, if a user decides to terminate a contract with an ISP or e-mail provider, the user in question should, during a period of 6 months after termination or de-activation, be able to access incoming mail on his old e-mail address (using webmail). Simultaneously, the ISP or Host must send out a message to incoming contact attempts addressing the defunct addresses with a message that the e-mail address or URL is no longer in use. Upon explicit request of the user the message may also contain a pointer to a new e-mail address or URL. The Minister (upon advice of the BIPT) is given responsibilities with regard to detailed implementation of the proposed mechanisms.

Other amendments, also filed on 8 July 2009, by another representative (David Geerts), go much further, as they call for:

  • Imposing an obligation on ISPs to provide “the facility of e-mail portability” (with the BIPT put in charge of defining rules in this context, a cost-accounting methodology, and “a method for sharing the costs between the parties concerned”).

  • The BIPT to define rules to be adhered to by operators upon termination of an Internet subscription, such that the end-users do not lose information addressed to them upon termination of a subscription with an operator.

The BIPT invites interested parties to express their views on: financial implication for market participants; operational impact for users and market participants; implementation timeframe; legal aspects in terms of privacy, branding, contracts, etc. and calls for alternative proposals or other relevant remarks.

T-REGS Note: It will be seen that the proposals have major potential implications, in terms of what constitutes an electronic communications service, what constitutes a “number” (although Article 1,3° of the Royal Decree on Numbering is identical to what is being proposed to be included in the Law), (re)definition of activities on the Internet (potentially going beyond e-mail and web hosting), obligations on market participants, etc. For example, the proposed definition of electronic mail comprises all text, speech, sound or image transferred through an electronic communications network which can be saved in the terminal equipment of the receiver until it is fetched by the end-user of the internet service.

The full text of the consultation document (available only in Dutch and French) is available by clicking here.

Comments are invited by 31 August, 15:00 CET.

For a discussion, please contact Yves Blondeel or Alexa Veller.