NEWS

New Law establishing a Legal Framework for the Providers of Confidential (Electronic) Services.
03.12.2007

Certain parts of the law, notably concerning electronic certified communications, were to enter into force only following a further royal decree which had to be taken no later than December, 1, 2007. Since a new government seems to require a bit more time, this part of the law will not enter into force and for now the law will only concern electronic archiving, electronic time registration and financial escrow services. Under the definitions of the law archiving would also include external storage or back-up, even short-term, and, e.g., web-hosting. Financial escrow includes services that block payments by buyers until confirmation of delivery of the ordered goods or of completion of a service. The law provides that the service providers must be “impartial”; that they should not use or access the data for any other purpose than the agreed service; and, that they should use reasonable means to protect the data they have been entrusted with, both from access by third parties and from corruption. Service providers should also see to it that their employees are bound by a confidentiality obligation and that they are insured against their liability for damages. The law is most specific where it requires service providers to submit certain information to their clients before entering into any contract for the service. This information requirement covers: terms of service, warranties, the extent to which the service provider can be held liable, details on the operation of and the access to the service, the ways the data are protected and the insurance coverage. If the required information is not submitted in advance this may allow the customer to hold the contract void. In addition, the service provider could be liable to the payment of a substantial fine. With regard to the other provisions (not concerning the pre-contractual information), it is a bit difficult to gauge what the real impact of the law will be since its requirements are not very detailed and to a certain extent are overlapping with previous legislation. Until that becomes clear the law seems mainly to enforce what will often be existing professional practices. It is advisable for the concerned service providers to at least document their professional practices to demonstrate compliance with the law and to review their practices to see if there are any remaining gaps.

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