On 1 December 2015, the Court of Cassation dismissed an appeal lodged by Yahoo! against the ruling of the Court of Appeal of Antwerpen of 20 November 2013. The Court of Appeal partially confirmed the judgment issued in 2009 by the Criminal Court of Dendermonde that convicted Yahoo! and obliged it to disclose the identity of the persons who committed fraud via their Yahoo! e-mail addresses.
The public prosecutor of Dendermonde had requested Yahoo!, which is established in the US, to disclose the identity of certain people who used Yahoo! e-mail addresses to commit internet fraud. The public prosecutor’s claim was based on Article 46bis of the Criminal Procedure Code (CCP), which provides that electronic communication services providers are obliged to disclose identification data to law enforcement agencies upon their request. 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 to be considered such an electronic communications service provider and is consequently obliged to comply with his request.
Yahoo!, however, refused to disclose the identification data by claiming that it is not subject to Article 46bis of the CCP, since it was not an electronic communications service provider. According to Yahoo!, the term “electronic communications service provider” in Article 46bis of the CCP had the same meaning as the term “electronic communications service provider” in Article 2 of the Belgian Electronic Communications Act of 13 June 2005 (BECA). Since this Article 2 provides that a provider of information society services, such as providers of free e-mail addresses, are not to be considered provider of electronic communications services, Yahoo! claimed that it was not obliged to disclose identification data to the public prosecutor.
Yahoo!’s argument was not followed by the Criminal Court of Dendermonde but Yahoo! successfully challenged the decision before the Court of Appeal of Ghent. However, the public prosecutor lodged an appeal before the Court of Cassation that, on 18 January 2011, found that the term “electronic communications service provider” set forth in Article 46bis of the CCP has an autonomous meaning. Therefore, it does not have the same meaning as is used in Article 2 of the BECA. In the Court’s opinion, a provider of a service which allows its users to gather, disclose or distribute information by using an electronic communications network, is to be considered an electronic communications service provider within the meaning of Article 46bis of the CCP.
The case was then referred to the Court of Appeal of Brussels that, on 12 October 2011, held the view that the order had not been validly communicated to Yahoo!. In the Court’s opinion, the mere fact that it is technically possible, amongst others, for the public prosecutor to contact Yahoo! from the Belgian territory by means of electronic or other means of communication, is not sufficient. However, the public prosecutor lodged a second appeal before the Court of Cassation that, on 4 September 2012, found that the circumstance that the public prosecutor sends his written request within the meaning of Article 46bis of the CCP, whereby the cooperation is required from an operator established outside the Belgian territory, from Belgium to a foreign address, does not render the request invalid. The case was then referred to the Court of Appeal of Antwerpen that confirmed the applicability of Article 46bis of the CCP and punished Yahoo! with a fine of 44.000 euros, whose 22.000 euros are conditional during three years. It’s worth mentioning that, pursuant to the Court, if Yahoo! is not willing to comply with the requirements of Article 46bis of the CCP, it may decide to exclude IP-range from Belgium.
In its decision of December 2015, the Court of Cassation found that, unlike Yahoo!’s opinion, there was no issue of extraterritorial jurisdiction at stake. Indeed, according to the Court, the request for disclosure to an operator of an electronic communication network or an electronic communications service provider who is active in Belgium does not imply any intervention outside the territory of Belgium, such as sending civil servants abroad. Also, notwithstanding the place of location of such an operator or provider, its refusal to comply with such request constitutes an offence that takes place in Belgium. Finally, the Court of Cassation agreed with the Court of Appeal that Yahoo! “voluntarily” submits itself to the Belgian law because it actively participates in the economic life of Belgium, notably by using the domain name .be or by displaying ads based on the location of its users.
