Legal update on recent changes for webshop owners

1. The legal playing field for e-commerce is constantly shifting
Brussels Hilton, 16 February 2016

2. Sirius Legal
Bart Van den Brande
Lawyer – Founding partner
www.siriuslegal.be
bart@siriuslegal.be
be.linkedin.com/in/bartvdb
@BartVdBrande

3. Since 2013
Consumer protection in distance sales
Cookie directive (under review in 2016 as part of e-privacy directive!)
VAT in cross border delivery of services
Food labeling
Privacy regulation
ODR regulation and ADR directive
Potentially new rules for market places
Potentially new rules for geo blocking & geo fencing
VAT in cross border delivery of goods
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

4. First aid in case of fire burns
Update on
Cookies
Privacy
Consumer protection
Market places
Geo blocking
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

5. Cookies
EU e-privacy directive 2002/58/EC
Belgium: new article 129 in Telecom law since
October 2012
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

6. Cookies
Basically very simple: always opt-in
Except for purely functional cookies:
Absolutely necessarry for technical reasons
Absolutely necessarry for communication
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

7. Cookies
Opt-in should be
Free
Explicite
Informed
Prior to placing cookies
revocable
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

8. Cookies
2015
Netherlands soften edges
France holds large scale “cookie sweep”
Spain inflicts fines
Belgium…?
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

9. Cookies
Recommendation Privacy Commission 4 Feb 2015:
Continuing visit after warning on home page can
be opt-in (banner – not pop-up)
Information and right to revoke
Advertisers: agreement needed with website
owner for reuse of data
Analytics: no exemption, but minor risk
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

10. Cookies
Recommendation Privacy Commission 13 May 2015
on tracking & tracing:
Social media buttons on websites (like/share/etc):
activated only after opt-in
Doubble click system
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

11. Cookies
2016-2017
EC has announced review via e-privacy directive
Cookie regulation does not work
EMOTA and other aim for revoking cookie
regulation as a whole
Probably specific rules for other techniques
(fingerprinting, etc…)
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

12. Privacy Law
Current privacy law = based on EU Regulation
Transferred into national law by each member state
Set of rules dates back to eighties/nineties
Based on location of company and/or server
At the time most elaborate and progressive set of rules in the world
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

13. “Right to privacy” >< data processing
Definition of personal data is very large
ECJ 2015: Even IP address – browser history
Impact on data collection and big data is considerable
Privacy Law
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

14. Straight and simple:
Basic rule = prior “opt-in” for all processing
Or implicite opt-in if “legitimate grounds” for processing
“Free and informed” opt-in
Transfer of data to third party = additionnal opt-in
Cfr. Analytics tools, apps, cookies, database enrichment through mailings
and actions, …: always opt-in
Cfr. also social media content
Privacy Law
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

15. Rights of data subjects
opposition – access – correction - information
Obligations of data processor
Information – opt-in – data security – (export)
Privacy Law
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

16. New Regulation
2016 – 2017
Regulation in stead of Directive
Work in progress since 2012
Complex procedure in European Institutions
Heavy lobbying
Political slow down
Finally voted in Dec 2016 – signed in May 2016 – into force Dec 2017
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

17. New Regulation
Heavily influenced by consumer protection activists in EP
LIBE Committee (protection of civil liberties)
Result:
Consumer friendly, but somewhat unrealistic for direct marketing sector, e-
commerce sector and especially credit scoring/rating…
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

18. New Regulation
For all services offered in EU (even free services)
Personal data = also online identifiers, “pseudonymous data”
Direct marketing can be a legitimate interest
Information obligation (icons)
Right not to be submitted to profiling
Right to be forgotten
Consent for children
“Data protection by design”
Sanctions: up to 4% of yearly turnover or 20 million euro
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

19. Council Proposal
Data Protection Officer – notified with Authority – Task?
Data breach risk analyses
Data breach action plan
Obligation to warn within 24 hours
Standard clauses in data processing contracts
Additionnal information obligations
1 Data authority (Seat? Activity?)
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

20. What should you do in the meantime?
Follow training and info sessions (www.siriuslegal.be)
Start review vendor contracts (in view of data security obligation)
Start to prepare for full update of policies, contracts, business processes
Put in place data breach notification procedure
Appoint (temporary) Data Protection Officer
Put in place impact assessment and/or risk analyses policy
Create compliance statements for annual business reports
Train staff
Sit back and wait, because you will be pprepared…
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

21. Consumer protection in
distance sales
Book VI WER since May 2014

22. Information obligations
Cooling off period
Legal warranty period
(Price mentions)
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016
Consumer protection

23. Consumer protection
Information obligations
“From the start of the order proces”
Vs.
“Prior to order confirmation”
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

24. Information obligation
“In language comprehensible to consumer”
“prior to order confirmation” + again at the latest
upon delivery (pdf, text in mail, etc…).
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016
Consumer protection

25. S-commerce & M-commerce?
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016
Consumer protection

26. Cooling off period:
Only B2C
14 day minimum
Model forms
Depreciation for use/wear and tear
Limited exceptions
Consumer protection
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

27. Cooling off period
“Unused” / ”unopened”
Cost for return
Depreciation
Consumer protection
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

28. Sanctions:
• No cooling off period given:
consumer can keep order without paying
• Absence of legal mentions:
12 months + 14 days
• Absence of legal mentions:
consumer not liable for depreciation
• fines: from 150 to 60.000 euro!
Consumer protection
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

29. Legal obligation
For professionnal seller
2 year minimum (1 jaar 2°hand)
All consumer gooods
Manufacturers’ warranty
Legal warranty
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

30. Legal warranty
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016
Free
Replacement or repair
Deprication or dissolution
Damage compensation
6 months presumption
“orginal packaging”
“with invoice”
EU is working on harmonisation
Only for e-commerce
2 year presumption

31. 2015
Alternatice Dispute resolution in B2C
Warranty issues
Delivery issues
Payment issues
Cooling of period issues
…
ADR and ODR
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

32. “Consumenten Ombudsdienst” within FOD Economie
COC/FOD recognizes number of ADR institutions
Eg. Geschillencommissie Reizen, Geschillencommissie Bouw, -
Geschillencommissie Meubel, Ombudsdienst Telecom
COD can mediate directly
ADR and ODR
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

33. ADR
Consumer files complaint with COD
COD transfers to recognized ADR institution
In principle decision within 90 days
ADR and ODR
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

34. 2016
ODR Regulation – Online Dispute Resolution
Cross border platform for online complaints
Consument in Belgium – Seller in Hungary
Complaint with ODR platform – contact with local authorities for
binding or non-binding mediation
ADR and ODR
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

35. Obligation of information on ADR and ODR in
General Terms with link to relevant websites:
“Bij buitengerechtelijke regeling van het geschil is de Consumentenombudsdienst van de FOD
Economie bevoegd om elke aanvraag tot buitengerechtelijke regeling van consumentengeschillen te
ontvangen. Deze zal op haar beurt de aanvraag ofwel zelf behandelen ofwel doorsturen naar een
gekwalificeerde entiteit. U kan de Consumentenombudsdienst bereiken via deze link:
http://www.consumentenombudsdienst.be//nl “
“Bij geschillen met een grensoverschrijdend karakter kan u bovendien beroep doen op het Online
Dispute Resolution platform van de Europese Unie via deze link: http://ec.europa.eu/odr”
ADR and ODR
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

36. EU Digital Single Market strategy
Serious concerns on power of market places, transparancy and
consumer protection
Market places
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

37. EU Digital Single Market strategy
Market survey recently finished
Based on survey further initiatives in 2016 by EC
Emota/SafeShops and others: trying to limit new restraints
“Current legal framework is sufficient if correctly applied”
Market places
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

38. EU Digital Single Market strategy
EP adopted on 19 Jan a Resolution on the future of the EU Digital Single
Market
calls on the EC to “End unjustified geo blocking” and “price discrimination” via
ambitious “complementing” measures to the existing legal framework
Geo fencing and geo blocking
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

39. What is “unjustified” geoblocking?
EP text seems to advocate a list of practices that should be banned (i.e. a
negative list), which should favour the sector
Influence of competition law
How to deal with technical measures (e.g. IP tracking or other technical
restrictive measures)
Element of discrimination among consumers on discounts and promotions.
Geo fencing and geo blocking
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

40. Discussion is ongoing
Emota/SafeShops.be are actively following up, parting from e-commerce
sector needs
Minimum of supplementary rules
Minimal restraints on cross border e-commerce
Minimal impact on competition
Geo fencing and geo blocking
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

41. VAT on cross border delivery of services: changed in 2015
VAT on cross border delivery of goods: will change in 2017
Food labelling: changed in 2015
…
Maybe next time…
“And many others…”
The legal playing field for e-commerce is constantly shifting
E-commerce Summit, Brussel Hilton 16 February 2016

42. www.siriuslegal.be
www.websitecertifier.be
Bart Van den Brande
bart@siriuslegal.be
be.linkedin.com/in/bartvdb
@BartVdBrande
Sirius Legal