On January 18, 2011, the Court of Cassation in Brussels published an interesting decision in a case between the Belgian Public Prosecutor (OM) and American internet company Yahoo. The OM demanded information about the identity of Yahoo e-mail accountholders. Justice officials in Belgium suspected the email addresses are used in criminal activities.

The question is whether Yahoo can be regarded as a “provider of electronic communication services” within the meaning of Article 46 bis of the Belgian Code of Criminal Procedure. This would mean that a certain cooperation clause would apply to Yahoo, meaning that a request for information by Belgian authorities could be done directly to Yahoo in the US, instead of following standard procedures for requesting assistance by U.S. authorities. The ruling is also interesting for the Netherlands because our criminal legislation on this issue seems quite similar to that of Belgium.

Initially, a lower court in Dendermonde agreed with the OM in saying that Yahoo should cooperatie with Belgian investigations. The Court of Appeal in Ghent overruled this in favor of Yahoo. See our earlier blog post on FoC

 The Court of Cassation, however, ruled that the Court of Appeal in Ghent should have given a more substantial explanation as to why Yahoo could not be a "provider of an electronic communications service". Unlike judges held in Ghent, the concept of being a provider in the criminal code’s sense should have wider reach than being an "operator of a telecommunications service" where webmail providers like Yahoo are not covered. The highest judge says: "Provider of an electronic communication service"within the meaning of Article 46 bis of the Criminal Procedure Code,  does not only include the “ operator” for the purposes of the Act of 13 June 2005 on electronic communications, but includes anyone who provides services of electronic communications , including the transmission of communications data. "

The Court in Ghent has not made it undisputably clear that the email activities of Yahoo are not covered by this definition of a provider of an electronic communication service, Therefore, the obligation to cooperate with criminal investigations applies to Yahoo in the US, according to the Criminal Court of Cassation.

In this case it became clear that the Belgian high court chooses to give a broad meaning  to the term "electronic communications service provider”. Dutch law also seems to allow for such a broad definition.

But, I don’t think we want this to happen. If small countries like Belgium and The Netherlands are going to impose all sorts of information requirements on internet companies like Yahoo, the side effects can be undesirable. It will become less attractive for these companies to provide services in our country, because they can suddenly be summoned to respond to all kinds of requests by government agencies. It also seems unreasonable to ask these American companies to abide to 27 different jurisdictions in the EU alone, taking into account all administrative work and costs that would entail.

In retrospect, the Belgian Supreme Court has established a remarkable piece of jurisprudence. Perhaps they were focused on the importance of effective criminal investigations a little too much. The millions of free email users with Gmail, Hotmail or Yahoo accounts in the low countries may not be served by this choice. The case has been referred to a lower court for further consideration. We will keep you updated on how this sorts out.

Source: Supreme Court of Belgium. (Hof van cassatie) Brussels