On 27 October 2016, the Court of First Instance of Mechelen (the “Court”) ordered Skype Communications SARL (“Skype”) to pay a fine of EUR 30,000 following its refusal to cooperate in a judicial investigation.
In 2012, the Investigative judge (onderzoeksrechter/juge d’instruction) with the Court sought to monitor conversations of a suspect during an investigation of a criminal organisation. The investigative judge issued a request to Skype to cooperate in applying wiretapping and recording measures with regard to a specific individual’s Skype account. In response to the request, Skype merely provided registration details for the account, stating that the provision of information regarding Skype-to-Skype conversations was technically not possible. Additional requests to Skype did not lead to the requested information and Skype was, as a result, accused of failing to comply with Articles 88bis and 90quarter, §2 of the Criminal Procedure Code (Wetboek strafvordering/Code d’instruction criminelle).
Articles 88bis and 90quarter, §2 of the Criminal Procedure Code stipulate that operators of a telecommunications network or providers of a telecommunications service are obliged to cooperate with the judiciary if it requires specific information in an investigation.
The case ended up with the Court which first examined if Belgian courts had jurisdiction over Skype. Skype argued that its principal office is situated in Luxembourg and that it does not have a separate Belgian branch. Skype maintained that, as a result, it does not fall under the territorial jurisdiction of the Belgian criminal courts. The Court rejected this argument holding that there was an adequate territorial link as the requested data had been received on the Belgian territory.
After establishing jurisdiction, the Court considered the merits of the case. Here, Skype argued that it does not qualify as an operator of a telecommunications network or a provider of a telecommunications service and, therefore, does not have a duty to cooperate.
The Court disagreed and determined that Skype does qualify as a provider of a telecommunications service as it offers software to users which allows them to communicate with other users and exchange information over an electronic network (i.e., the internet). It added that Skype’s lack of its own network to transfer the data is not relevant.
Furthermore, the Court rejected Skype’s argument that Skype does not have to comply with Belgian legislation, because Skype does not have a Belgian branch. The Court determined that there is an adequate territorial link because Skype intentionally chose to be active on the Belgian market and generate revenue on the basis of that presence. The Court furthermore referred to the Dutch-language website of Skype, the available Dutch-language user manuals and the Dutch-language support service. Finally, the Court specified that Skype’s available software is accompanied with targeted advertising on the basis of the place where the user is located, the language preference and the location of the IP address.
The Court also rejected the argument that Skype was technically unable to provide the requested information. The Court held that Skype voluntarily chose to provide a communications service on the Belgian market, and for this reason, Skype should have considered the Belgian rules that require the company to provide technical cooperation in the framework of a judicial investigation. Skype should thus have designed its services in such a manner that it would be able to provide the required technical assistance. The Court added that these restrictions are not unreasonable or incompatible with the freedom of running a business.
Finally, the Court determined that there was no conflict with Luxembourg law. It imposed a financial penalty of EUR 30,000 on Skype.
This decision is still open for appeal.
