Click on a Table of Contents Entry to Go Directly to the Desired Title
ISSUE 18 JANUARY – FEBRUARY 2003
Click on a table of contents entry to go directly to the desired title.
To return to the table of contents use Ctrl + Home or Ctrl + End.
JAN. – FEB. 2003
ISSUE 18 JANUARY – FEBRUARY 2003
ISSUE 18 JANUARY – FEBRUARY 2003
ISSUE 18 JANUARY – FEBRUARY 2003
FROM THE EDITOR
"the l.i.n.k." is now two years old (although LABnews, its predecessor, dates back to 1997 !).
To highlight this, and to continue to better serve our readers, we are pleased to introduce certain changes.
First, you will note that the appearance of the newsletter has been revamped and modernised;
Second, "the l.i.n.k." web site has been created: www.thelink.lu. The newsletter, past issues and other useful features are available on this site;
Third, in order to use the wealth of materials contained in all the past issues of "the l.i.n.k.", we have created a search engine allowing to dig into the entire database (containing nearly 1.000 articles) and get the most out of the newsletter.
We wish to express our warmest thanks to Erin, the promoter of www.eLexPortal.com, an e-Commerce legislation and regulatory policy information portal which complements our newsletter, for their help to achieve the above.
Stephan LE GOUEFF, , Luxembourg
NEWS 2
1. COMPUTER CRIME 2
BRAZIL Internet crimes 2
2. CONSUMER PROTECTION 2
Canada Ontario imposes Internet consumer contract protections 2
Luxembourg Consumer protection in distance contracts 3
3. DATA PROTECTION 3
COLOMBIA Limit to personal data access in government databases 3
France CNIL report on spamming 3
UK Public authorities’ access to communications data 4
4. DIGITAL SIGNATURES 4
LEBANON Central Bank proposed as certification authority 4
MEXICO Bill on eSignatures and certification institutions 5
5. DOMAIN NAMES 5
NETHERLANDS Modification of rules on registration of “.nl” 5
SWEDEN The “.se” top-level domain 5
6. ELECTRONIC COMMERCE 6
Canada Webtrading disclaimers held unenforceable 6
NEW ZEALAND The Electronic Transactions Act 2002 6
7. ELECTRONIC GOVERNMENT 6
BRAZIL On-line Official Gazette deemed valid 6
8. EMPLOYMENT 6
GERMANY Employees’ survey by foreign parent company 6
9. FINANCIAL SERVICES 7
TURKEY Capital market legislation update and projections 7
10. INFORMATION SOCIETY POLICY 7
BRAZIL Changes in Internet access 7
COLOMBIA Regulation on protection of minors on the Internet 7
COLOMBIA Options to reduce thee digital gaps 8
EU Consultation on digital TV and 3G 8
SPAIN Expert Committee to assess basis for Infosoc development 8
SPAIN Bills to regulate telecom and audiviosual 9
11. INTELLECTUAL PROPERTY 9
Canada Higher life form held not patentable 9
EU Eastern enlargement: what meaning for CTM 10
GERMANY More holder rights for copyright infringement 10
Luxembourg Higher costs for Benelux trademarks 11
SOUTH AFRICA Amendments to trademarks 11
12. MARKET ACCESS 11
CHILE Free trade agreement between Chile and USA 11
13. MEDIA 12
EU 4th report on application of “Television without Frontiers” 12
GERMANY Rules on advertising liberalized 12
INDIA Parliament passes Cable Television Bill 12
MEXICO New Radio and Television Law initiative presented 13
SPAIN Changes in the television regulatory framework 13
SWEDEN Freedom of speech in new media 13
14. TELECOMMUNICATIONS 14
BRAZIL Expected changes in the Communication Policy 14
BRAZIL Renewal of fixed telephony licenses 14
COLOMBIA Controversy due to emergence of 3G standards 14
COLOMBIA Prepaid services to be regulated 15
INDIA Supreme Court sets aside TDSAT's order on WLL 15
INDIA TRAI issues voice quality norms for ILD operators 15
ITALY Incentives in favour of new telecom investments 15
MEXICO Amendments to the regulations of Telecom Commission? 16
NEW ZEALAND First access determination under Telecom Act 16
PORTUGAL Telecom incumbent purchases public fixed network 16
Portugal The closing of Oniway 16
SPAIN Agreement on UMTS 16
SPAIN New Chairman for Telecom Market Commission 17
UK Auction of 3.4 GHz radio spectrum for 2003 17
UK Communications Bill introduced 17
UK Oftel consults on wholesale line rental product 17
UK LLU: Oftel to provide co-mingling 18
15. UNIVERSAL SERVICE 18
AUSTRIA Procedure for cost allocation 18
MEXICO Mexican Universal Service Fund 18
16. WEB SITES 19
EU National legislation on e-Commerce, the easy way 19
Commentary 19
CANADA Ownership and control restrictions: time for a change? 19
Event 22
Young Lawyers Writing Competition 22
EDITOR / EDITORIAL BOARD 24
TABLE OF CONTENTS BY COUNTRY 26
Clicktosubscribe
Back issues of “the l.i.n.k.” are available at
www.mccarthy.ca and www.thelink.lu
Information about legislative and regulatory aspects relating to eCommerce across the EU for non-specialist entrepreneurs and business people. Register free of charge at www.eLexPortal.com and avail yourself of its valuable services for free!
NEWS
1. COMPUTER CRIME
BRAZILInternet crimes
The Public Security and Organised Crime Defence Commission approved, on 11th December 2002, the substitution of the law that covers crimes committed through the Internet and defines related penalties.
Some of the crimes that would be covered are hacking, creation and dissemination of viruses, violation of PIN security protection, unauthorised downloading of software, data file destruction and commercial and industrial espionage through the Internet. The proposed penalties are one to six years in jail.
If the bill is enacted as currently written, it will also forbid the inclusion of data identification of users in any data base, such as address, without the user's authorisation.
The bill will be examined by the Constitutional and Justice Commission and then sent to Congress for approval.
For more information please contact:
2. CONSUMER PROTECTION
CanadaOntario imposes Internet consumer contract protections
On 13th December 2002, the Ontario Consumer Protection Act, 2002 received Royal Assent after being passed unanimously by the legislature for the Canadian Province of Ontario. The Act will take effect upon proclamation, which the Ontario Ministry of Consumer and Business Services expects later this year once applicable regulations are finalised. Upon taking effect, the Act will, among other things, place new requirements on Internet consumer contracts and allow consumers to cancel such contracts if such requirements are not met. Businesses selling goods or services to Ontario consumers over the Internet will be required to disclose information prescribed by regulations of the Ontario Ministry of Consumer and Business Services to the customer, provide an express opportunity to accept or decline the agreement and deliver a copy of the agreement in writing to the customer within a prescribed time period.
The Internet provisions of the Act will apply to all consumer contracts over a dollar amount to be set by regulation, in which either the supplier or the consumer is located in Ontario when the transaction takes place. Consumer rights are not waivable by consumers.
Once the Act takes effect, before a consumer enters into an Internet agreement, the supplier will be required to disclose certain information prescribed by regulation to the consumer. Disclosure must be accessible and available to the consumer in a manner that ensures that:
-the consumer has accessed the information; and
-the consumer is able to retain and print the information.
The supplier will also be required to provide the consumer an express opportunity to accept or decline the agreement and to correct errors immediately before entering into it.
After the consumer enters into the agreement, the supplier will be required to deliver a copy of the agreement in writing to the consumer within a time period to be prescribed by regulation. The copy of the agreement must include certain information to be prescribed by regulation. Forthcoming regulations will specify when a copy of the Internet agreement may be deemed to be delivered to the consumer.
The Act provides that consumers will be able to cancel an Internet agreement at any time up to seven days after the consumer receives a copy of the agreement if:
-the supplier did not disclose the required information to the consumer; or
-the supplier did not provide the consumer an express opportunity to accept or decline the agreement or to correct errors immediately before entering into it.
Furthermore, a consumer will be able to cancel an Internet agreement within 30 days after the agreement is entered into if the supplier does not provide a copy of the agreement to the consumer.
The "Internet Agreements" section of the Act closely tracks the Internet Sales Contract Harmonisation Template (the "Internet Sales Template") adopted by Canadian federal and provincial ministers on 29th May 2001 as a template for consumer protection legislation governing Internet sales and services contracts (available online at: http://strategis.ic.gc.ca/pics/ca/sales_template.pdf).
A spokesperson for the Ontario Ministry of Consumer and Business Services advises that the Ministry plans to begin drafting the regulations shortly, and that the regulations will likely be based on the federal Principles of Consumer Protection for Electronic Commerce (available online at: http://strategis.ic.gc.ca/SSG/ca01185e.html) approved by the Working Group of Electronic Commerce and Consumers in August 1999.
For more information visit: http://www.ontla.on.ca/documents/Bills/37_Parliament/Session3/index.htm
For more information please contact:
LuxembourgConsumer protectionin distance contracts
On 26th November 2002, the Council of State published an additional opinion on the amendment of Economics, Post and Transport Committee ("the Committee"), in connection with the consumer protection in distance contracts draft bill debates.
The Council of State has favourably admitted most of the Committee propositions, notably those aiming at excluding from the scope of the law distance contracts related to financial services as well as contracts concluded by electronic means, because of the e-Commerce Act of 14thAugust 2000, which is already protecting consumers in such a case.
However, the Council of State has rejected some of the Committee’s proposals, for example, a provision of the draft bill aimed at allowing the bringing of a cessation proceeding against any breach of the collective interests of consumers, either on Luxembourg law grounds or foreign law grounds, implementing Directive 97/7/CE of the 20th May 1997 related to consumer protection in distance contracts. Thus, the Council of State is pointing out that applying foreign law in Luxembourg is not possible under certain circumstances.
The opinion of the Council of State related to the law’s application focuses attention on the difficulty of locating the place of conclusion of a distance contract. Pursuant to the Convention of Rome of the 19th June 1980 on the law applicable to contractual obligations, a consumer can benefit from the obligatory provisions of the law of the country in which he has his usual residence, notably when the conclusion of the contract was preceded, in the country of the consumer, by an advertisement. In such a case, the consumer must have accomplished in his home country all the acts necessary to bring about the contract. Finally, the place where the advertisement is realised also determines the law that will apply.
For more information visit: http://www.chd.lu/servlet/DisplayServlet?id=20333&path=/export/exped/sexpdata/Mag/010/003/022292.pdf
For more information please contact:
3. DATA PROTECTION
COLOMBIALimit to personal data accessin government databases
The possibility of obtaining information about the assets, health and tax payment history of natural persons through the Internet by merely entering their citizenship identification number infringes the right to free self-determination through information technology systems, according to a recent decision of the Colombian Constitutional Court (Constitutional Court, Sentence on Writ of Mandamus T-729 of 5th September 2002).
The Court resolved favourably an action that had been filed by a citizen against the Internet-based databases operated by the Bogota Land Registry Office and the Superintendency of Health. In the Court's view, the conduct of such entities in not providing adequate safeguards violates the principle of freedom, the principle of ultimate purpose and the principle of individuality established in the Colombian Political Constitution.
In fact, the publication and disclosure of personal information of individuals without their prior and express authorisation infringes the principle of freedom, said the Court.
Also, the possibility of obtaining access to the aforementioned data bases infringes the principle of purpose, since it facilitates indiscriminate access to aliens without visible interests to personal information.
Finally, it infringes the principle of individuality, the Court found, since it facilitates the exchange of data concerning private and reserved information that enables the construction of individual profiles.
For more information visit: www.gobiernoenlinea.gov.co
For more information please contact:
FranceCNIL report on spamming
At present, no specific French legislation directly prevents spamming. However, on 15th January 2002, the Tribunal de Grande Instance of Paris adopted a contractual approach to solving the issue of spamming by ruling that sending unsolicited emails was a breach of "netiquette", utilising the access providers own general terms and conditions of use. The French Tribunal de Grande Instance of Rochefort-sur-Mer, in a decision dated 9th July 1999, had previously ruled that netiquette had legal value and that users should comply with the rules of netiquette.
Since the publication of the report "Electronic Mailing and Data Protection" in 1999, the French data protection authority (Commission Nationale de l'Informatique et des Libertés, the "CNIL") has continued to be active. In July 2002 the CNIL started collecting evidence via a "spam box", and taking legal action against senders of unsolicited email. A CNIL report relating to spamming was published on 21st November 2002 and clarifies the CNIL’s position on spamming. The report indicates clearly that spamming is contrary to the provisions of French Law No. 78-17 of 6 January 1978 known as "Loi Informatique et Libertés" (the "Law"). The Law is expected to be amended in line with European Directive 95/46/EC of 24 October 1995 that has not yet been implemented by France.
The CNIL Report defines spamming as sending multiple copies of an unsolicited message to many individuals, with whom the spammer has never had any contact and whose addresses were wrongly obtained by the spammer.
Spamming involves the automated processing of IP addresses and of first names and surnames. This places spamming within the scope of the Law since the Law applies to all "personal data" which is "automatically processed" in whole or in part in France, irrespective of the nationality of the data subject. "Personal data" is defined as information that allows, in any way, directly or indirectly, the identification of individuals to which it refers. IP addresses constitute "personal data" within the meaning of the Law as they allow indirect identification of persons. "Automatically processed" is defined as every set of operations performed automatically, relating to the collection, recording, preparation, modification, storage and destruction of personal data as well as every set of operations of the same nature relating to the use of data files or databases and including interconnections or aggregated use, consultation or disclosure of personal data. Temporary storage and deletion of IP addresses, both essential elements of spamming, constitute automatic processing within the meaning of the Law. The collection of electronic individual addresses used for spamming is considered to be unlawful because the electronic address of each person is collected without such person’s knowledge. Pursuant to article 25 of the Law, the collection of data made by any fraudulent, unfair or unlawful means is prohibited.