Article by Catherine Gysels, DLA Piper Brussels
According to Belgian criminal law, providers of telecommunication services are obliged to cooperate if an investigating judge orders a wiretap measure. In November 2017, Skype was found guilty of failing to give essential information and provide a wiretap on Skype calls as the company was considered as a provider. However, a discussion remains over Skype’s status as a telecom operator as another Belgian court sought guidance to resolve a lawsuit between the company and the national telecom regulator.
In 2012, a judicial investigation regarding a criminal organization was conducted in Belgium. Authorities established that a certain suspect within the investigation did not communicate by means of a normal telephone line, but only via a so-called Skype account. The magistrate then ordered a registration and tapping measure and demanded Skype to cooperate. In particular, the official warrant claimed that future conversations could be monitored by the investigators. Skype was contacted several times by the police, but reported that Skype users’ data is held by and owned by Skype located in Luxembourg. Skype would also not have any data of conversations between Skype users, which are video and chat messages, as well as exchanged files. Skype only supplied partial information, including email addresses of those concerned and account information, but not the content of communications.
As a result of the (implicit) refusal to cooperate, the police immediately lodged an official report, after which a prosecution investigation was started by the public prosecutor’s office. The Criminal Court would ultimately state Skype committed the crime of refusal to grant technical assistance to an investigation and order Skype to pay an effective fine of € 30,000. Before the court of appeal, Skype stated again that the Belgian judge would have no jurisdiction. In addition, the company claimed that Skype was not an operator of a telecommunication network or provider of a telecommunication service, and at least that there is no question of refusal of cooperation in the judicial investigation.
Territorial link with Belgium
In the first place, Skype pointed out that the offense did not have any territorial link with the Belgian territory, so that the Belgian judge would not have jurisdiction. Skype is, after all, a company incorporated under Luxembourg law and has no separate branch in Belgium. Now that Skype did not own or manage any infrastructure in Belgium, the crime could not have been committed in Belgium as the place where Skype could co-operate would, by definition, be Luxembourg.
The Court refers to the provisions of Article 3 of the Criminal Code, which stipulates that the offense committed in the territory of the Kingdom by Belgians or by foreign nationals must be punished in accordance with the provisions of Belgian law. A crime must be regarded as ‘territorial’ as soon as at least one of its constitutive elements is located in Belgium. As the requested information and the technical cooperation with the researchers was asked and had to be given on Belgian territory, the crime of refusing to disclose the requested information or providing the requested cooperation is committed at the place where this requested information or technical cooperation must be received by the competent investigators, or in Belgian territory. In other words, the Court motivated that the crime did not take place at the place where the legal person is located, but where the requested communication or information or cooperation has to be received. The obligation to cooperate can therefore be located in Belgium, even when those obliged to cooperate are abroad.
A provider of telecommunications/electronic communication services
Secondly, it had to be determined whether or not Skype is a provider of a telecommunications service. In the Belgian Yahoo case-law, these concepts were already defined very broadly by the Court of Cassation. Not only is the Belgian operator within the meaning of the Act of 13 June 2005 concerning electronic communication considered as a provider of a telecommunications services, but also anyone who provides electronic communications services, such as the transmission of communication data. The obligation to cooperate is therefore not limited, but for everyone who offers a service that consists entirely or mainly in the transmission of signals via electronic communication networks.
The Court of Appeal concluded that Skype complies with the concept ‘provider of a telecommunications service’, Skype was providing technical aids to users in Belgium and elsewhere in the world in the form of free software that allowed these users of electronic networks to exchange information with other persons. In order to be considered as a ‘provider of a telecommunications service’ in Belgium, it is therefore sufficient that the offered software is entirely or mainly intended and is used for communication between users via the internet. Moreover, the court expressly pointed to the twofold intervention of Skype in the electronic communication by its users: the users first have to download the Skype software on their device, with each user having to connect at the start of each communication with the Skype server, after which Skype performs a verification and authentication of the login data of the users.
Territorial obligation to comply with the request
After it was determined that Skype complies with the concept of a ‘provider of a telecommunications service’, the Court of Appeal would also express the view that the obligation to cooperate territorially applies to the company.
Again, the judgment took over the Yahoo reasoning, on the basis that that Skype participates in economic life in Belgium, whether or not it has a social or administrative seat on Belgian territory. In order for a provider of a telecommunications service in Belgium to be subject to a coercive measure, it is also required that there is ‘sufficient territorial connecting factor’ with the Belgian territory. Such a ‘sufficient territorial connecting factor’ may be that the foreign service provider is present in Belgium through his active participation in economic life in Belgium, even if he does not have a registered seat on Belgian territory. It is not the location of the office or establishment of the service provider that is decisive, but the place where that service provider offers his services.
In this context, the Court of Appeal reasoned that paying services were offered to Belgian users, as well as advertising targeted to Belgian users via the software. The proof that Skype had provided a Dutch version of its website so that Dutch-speaking Belgian users could automatically make use of the services in Dutch, can only be explained by the clear will to actively and commercially target potential users in Belgium. As a conclusion, the court states that Skype was also economically accessible and present for the Belgian consumer, so the company is also legally accessible and present in Belgium.
Legal obligations of a provider of electronic communications services
According to the judgment, Skype is liable under the national telecommunications law, which obliges telecommunications providers to work with legal investigations when required.
The relevant data available to Skype were transferred according to the company. Skype stated that without significant changes to its software and infrastructure it will not have access to the signals that its users send via the internet, and not to the communication data itself. The Court of Appeal understood that Skype could, therefore, actually get access to those signals if they would make (substantial) adjustments. It was precisely by not organizing itself so that Skype could meet its legal obligations that it was held to have committed the offense.
However, nowhere, either in Belgian legislation nor internationally, is the duty is laid down with regard to providers of electronic communication services to make systems interceptable or to limit encryption. This is also in contrast to the (European) data protection right and the freedom of encryption.
Moreover, the position in which Skype found itself in respect of Luxembourg law was not taken into account in any way. The court denies that Skype would violate Luxembourg law, since the obligation to cooperate would relate to communications in Belgium, providing information to the Belgian researchers and technical assistance with an interception measure on Belgian territory. However, the judgment disregards the fact that Skype, as a Luxembourg company, would commit a crime under Luxembourg law if it complied with the Belgian obligation to cooperate, which is in any case a situation of force majeure. In view of this international context, the entire problem could therefore have been avoided by the intervention of the Luxembourg judicial authorities through a request for legal assistance.
It is therefore questionable whether the reasoning of the Court of Appeal will stand in the proceedings before the Court of Cassation.
Telecom operators in EU law
In the meantime, another Belgian court of appeal sought guidance from the EU’s Court of Justice to clarify the criteria used to label companies as telecom operators, as laid down in the Directive of 7 March 2002 on a common regulatory framework for electronic communications networks and services (the Framework Directive).
Skype had been fined €223,454 by the Belgian Institute for Postal Services and Telecommunications, or BIPT, for failing to comply with Belgium’s telecoms law. In this dispute, BIPT focused on Skype as a provider of electronic communications in relation to the “SkypeOut” service, which allows calls over the internet to anyone with a fixed line or mobile phone.
SkypeOut requires the user to buy call credit, while calls are charged at local rates. The person being called is however not required to be a Skype subscriber. According to the BIPT, Skype should have registered the SkypeOut service as required by the telecoms law because it is a service provided against payment, which consists completely or mainly of signal transmissions and is carried over electronic communication networks. The regulator stated that not doing so “constitutes a serious offence which could damage the interests of users and competitors”.
Skype however argued that it is not providing a telecommunications service. A conversation with SkypeOut works on the one hand via the official telecom operators and on the other hand via internet providers. These two parties take care of the transmission of the signal and are therefore subject to regulation. In other words, Skype delivers the interface and prepares the VoIP data packets for sending, but only telecom companies and internet providers transport those packages. To motivate its argument, Skype refers to the legal definition of an electronic communication service. It states that such a service is entirely or mainly concerned with sending signals. Skype does work with such companies, but does not have digital pipelines to forward these signals.
EU judges will now have to decide on the criteria to classify companies as telecom operators / electronic communications service providers, which may impact Skype’s and other providers statuses as electronic communications providers in both EU and Belgian laws.