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ISSUE 2MAY- JUNE 2000

MAY - JUNE 2000

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1.COMPETITION

ITALY Telecom Italia breach of competition rules

2.COMPUTER CRIME

BELGIUM Draft act regarding computer related crime

3.CONSUMER PROTECTION

SPAIN Telephone and electronic agreements

SWEDEN New rules for e - mail advertisement

4.CONVERGENCE

MALAYSIA Detailed rules on convergence

5.DATA PROTECTION

CANADA Rules on data protection

NORWAY New rules on protection of personal information

6.DIGITAL SIGNATURES

ARGENTINA Official certification authority for e-signatures

CANADA Rules on e-signatures

ISRAEL Draft law on e-signatures

PORTUGAL Rules on e-signatures

7.ELECTRONIC COMMERCE

EU E-commerce directive

INDIA New information technology bill

8.INTELLECTUAL PROPERTY

ISRAEL Intellectual property and domain names

SPAIN Internet domain names under the Spanish country code

SWEDEN No liability for linking

9.PROTECTION OF PRIVACY

EU Interception of satellite phone calls

UK New rules on interception of communications

10.MARKET ACCESS

AUSTRIA 3G mobile licences

IRELAND 3G mobile licences

PORTUGAL 3G mobile licences

SPAIN Telecommunications and broadcasting service licences

SWEDEN 3G mobile licences

SWITZERLAND Wireless local loop licences

UK 3G mobile licences

11.TELECOMMUNICATIONS

AUSTRIA New interconnection framework

EU Telecommunications reform

EU Settlement of consumer disputes

IRELAND Local loop unbundling

MEXICO Specific obligations imposed on dominant carrier

NEW ZEALAND Telecommunications enquiry

SOUTH AFRICA Regulation on VAS and VPN

SPAIN New spectrum rules

UK Telecommunications policy review

12.WEB SITES

SOME LUXEMBOURG SITES

13.Editor/ editorial advisory board

14.TABLE OF CONTeNtS BY COUNTRY

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1.COMPETITION

ITALYTelecom Italia breach of competition rules

The Competition Authority at its meeting of 20th January 2000, closed the investigation of Telecom Italia ("TI"). The investigation had been initiated pursuant to a complaint filed by Associazione Italiana Internet Providers alleging that TI had abused its dominant position on the Internet services market.

TI had an absolutely dominant position on the Internet services market for both residential and business customers. The Authority examined the conduct of TI dating back to 1996 on different Internet service markets and found it to have been in breach of competition law in several respects when, in implementing a policy to expand the market, it invested very heavily in the network and advertised, using a widespread and prolonged application of very low charges to its subscribers.

TI sustained continuing financial losses resulting from this commercial policy, but was able to substantially expand on the market, due to its ability to offset such losses against the revenues acquired in its capacity as themonopoly de facto from the dial-up links and the offering of digital direct circuits. The Competition Authority imposed a minimum fine on the corporation of 1,248,000,000 Lire.

For more information, see:

2.COMPUTER CRIME

BELGIUMDraft act regarding computer related crime

On 30th March 2000 the Belgian House of Representatives adopted a draft act regarding computer related crime (the “Act"). The Act provides for new computer related incriminations and accompanying investigatory powers. It covers:

  • computer forgery and computer fraud which includes any manipulation of data to obtain a financial advantage;
  • unauthorised access to computer systems or hacking;
  • computer and data sabotage, including the making and spreading of computer viruses.

The new investigatory powers granted to prosecuting authorities are:

  • the power to seize digital data by copying such data;
  • the ability to oblige particular persons to co-operate;
  • the possibility to prevent access to a computer system;
  • the authorisation to perform network searches.

The Act further obliges telecommunications network and service operators such as Internet service providers, to save and store all data regarding telecommunications traffic and telecommunications services users during a period to be determined by Royal Decree. The penalties for non-compliance include imprisonment of up to five years and fines ranging from BEF 5,200 to BEF 40,000,000. The Act is currently being debated before the Belgian Senate which has until 26th June 2000 to make amendments.

For more information, see:

3.CONSUMER PROTECTION

SPAINTelephone and electronic agreements

The Spanish legislator has gone a step further to protect consumers when they enter into contracts by telephonic or electronic means by implementing Royal Decree 1906/1999 of 17th December 1999 (the “Royal Decree”).

Excluding specified instances stipulated in the Royal Decree, It sets forth the regime applicable to all agreements which are executed without physical simultaneous presence of the contracting parties by telephonic, electronic or telematic means, and which contain general contractual conditions. The provisions of the Royal Decree are applicable whenever adherence to general contracting conditions has taken place in Spain irrespective of the law governing the agreement.

The Royal Decree further imposes a number of obligations on the offering party who incorporates general conditions into its agreements. These obligations mainly concern the provision of information on the said general conditions and the provision of written evidence of the agreement which has been executed. The adherent party thereto is granted a seven working day period to terminate the agreement without incurring any penalty or cost.

For more information, see:

SWEDENNew rules for e - mail advertisement

On 1st May 2000 new rules regulating the use of distance communication for purposes of direct marketing towards consumers came into force. The rules stipulate that e-mail may only be used in a company's advertising towards consumers where there is no clear objection from the consumer, otherwise known as opt-out. For more traditional methods of distance marketing such as telecommunication or fax, the customer must give his consent, otherwise known as opt-in, before the method is used. The new rules are based on European Council Directives 97/66/EEC and 97/7/EEC concerning consumer protection.

For more information, see:

and

4.CONVERGENCE

MALAYSIADetailed rules on convergence

The Ministry of Energy, Communication and Multimedia has issued several new rules to govern the convergence of telecommunications, broadcasting and information technology industries. The rules include:

  • the Technical Standards Regulations 2000;
  • a Licensing Exemption Order 2000;
  • a Spectrum Exemption Order 2000;
  • the Spectrum Regulations 2000;
  • the Licensing Regulations 2000.

Furthermore, all rules pertaining to the spectrum, and tariffs have entered into force. The key features of the new rules are:

  • the exemption of licensing requirements for certain activities such as: electronic transaction services and interactive transaction services; Internet content provision; private network services; incidental network facilities;
  • the exemption of certain types of equipment using specified frequency bands, from the need to hold either a spectrum or an apparatus assignment, provided the equipment bears a label expressly declaring its exemption pursuant to the relevant regulation. Such equipment includes, the CT2 and CT3, the DECT (1880 - 1900 MHz), and the PHS (1895 - 1918MHz);
  • the clarification of activity that remains subject to an individual or class licence since both categories of licences must meet eligibility requirements that include inter alia, the need for an applicant to be a company incorporated in Malaysia;
  • the pricing of application fees:

·for Individual licences at: RM10,000 (approx. USD2,500) with an additional approval fee of RM50,000 (approx. USD13,000) where the individual licence carries an annual fee computed at 0.5% of gross turnover after deducting certain expenses for R&D, skills training, minority investments in SMEs, local content & production. A minimum licence fee of RM50,000 is payable if the percentage of gross turnover is less than RM50,000;

·for class licences set on a per annum basis at RM2500 (approx. USD650);

·the presentation of the regulatory environment with a greater degree of certainty.

5.DATA PROTECTION

CANADARules on data protection

Bill C-6, alias Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (the “Act”), received Royal Assent on 13th April 2000. It is expected that the privacy provisions of the Act (Part 1) will enter into force on 1st January 2001. For one year after entry into force, the privacy provisions will not apply to any organisation in respect of personal health information it collects, uses or discloses. For three years after entry into force, they will not apply to any organisation within a province whose legislature has the power to regulate such matters (e.g. Quebec), unless the organisation:

  • collects, uses or discloses personal information in connection with the operation of a federal work, undertaking or business;
  • the organisation discloses the information outside the province for consideration.

Organisations governed by the Act will be required to comply with ten privacy principles set forth and elaborated in its Schedule 1 which include inter alia:

  • identifying purposes (i.e. the purposes for which personal information is collected shall be identified by the organisation at or before the time the information is collected);
  • consent (i.e. the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate);
  • limiting collection (i.e. the collection of personal information shall be limited to that which is necessary for the purposes identified by the organisation).

For more information, see:

NORWAYNew rules on protection of personal information

On 14th April 2000, the Norwegian Parliament resolved upon an act regarding the handling of personal information (the “2000 Act"). It is still not clear when this act will come into force. The 2000 Act will replace the existing Act No. 48 of 9th June 1978 relating to personal data filing systems, etc.

Although the EU Directive No. 95/46 EF has not yet been implemented pursuant to the EEA agreement the legislators have taken this directive into consideration in drafting the 2000 Act. The legislators have also taken into consideration recent changes in corresponding legislation in other Nordic countries.

The 2000 Act applies to inter alia:

  • handling of personal information which shall take place solely or partly through electronic facilities;
  • other handling of personal information that is or shall be part of a file of personal data.

Certain provisions apply to sensitive personal information such as human race, ethnical background, political, philosophical or religious belief, legal offence, health, sexual relations or union membership.

For more information see:
and

6.DIGITAL SIGNATURES

ARGENTINAOfficial certification authorityfor e-signatures

Decree N° 1335/99 of 11th November 1999 authorises the Telecommunications Office to instruct the Mail Office regarding the provision of a certification service for e-mail accounts. This is to ensure that e-mail accounts are deemed to be accurate and true in relation to both the sender and receiver. Decree N° 1335/99 was regulated by Resolución N° 4536/99. The Resolución states that the Mail Office would be the exclusive Official Certification Authority for digital signatures with regard to e-mail accounts, and that it will freely assign e-mail accounts to all Argentines, physical or corporate, that have official identification. It also provides for a certification mechanism as well as other procedures. However, the application of Resolución N° 4536/99 stands suspended for an indefinite period by Resolución 3/99 and consequently, the Official Certification Authority for digital signatures will remain inactive until further decisions are taken.

For more information, see:

CANADARules on e-signatures

The Personal Information Protection and Electronic Documents Act, S.C. 2000, C.5 (the “Act”) received Royal Assent on 13th April 2000 and its provisions with respect to electronic documents entered into force on 1st may 2000. Federal statutes and regulations often specify that information must be given “in writing”, “certified” or “signed”. Such references can be interpreted as relating solely to paper based transactions, precluding the possibility of transmitting information electronically. After review, the federal Department of Justice found that roughly 300 federal statutes referred to sending information in a manner that appeared limited to paper.

The Act adjusts and applies current laws such that they permit an electronic alternative to transmitting information. Specifically, the legislation gives federal departments, agencies and boards the authority to decide how requirements in existing statutes and regulations can be satisfied by electronic means in place of paper. Moreover, the Act identifies the concept of a “secure electronic signature” which may be used in electronic transmissions to ensure their integrity and reliability.

In a related matter, on 8th October 1999, the Ontario Superior Court in Rudder Vs. Microsoft, No. 97-CT-046534CP, held that the Microsoft Network’s online membership agreement which can be consented to by means of clicking an “I Agree” icon constituted a legally binding contract. Justice Winkler held, “on the present facts, the Membership Agreement must be afforded the sanctity that must be given to any agreement in writing.”

For more information, see:

ISRAELDraft law on e-signatures

On 5th March 2000 the Israeli Government Justice Department issued its first Draft Law on Electronic Signatures. The Draft law provides that legally binding signatures may be digitally concluded when their use is secured and verified digitally. The new Draft proposes secured and verified digital signatures to include an indication attached to or placed on the document with the intent to sign the document whereby:

  • the signature can be identified;
  • the signature is unique to the person signing the document;
  • the signature was produced by the person signing the document;
  • the signature will indicate later alteration of the document.
  • The Draft Law further addresses issues related to:
  • the status of electronic signatures;
  • the responsibilities of the person using an electronic signature;
  • the rules pertaining to verification authorities;
  • recognition of foreign electronic signatures.

For more information, see:

PORTUGALRules on e-signatures

The Portuguese Government has made two important steps towards the full implementation of e-commerce in Portugal by the enactment of two Decree Laws which set forth the legal framework for electronic documents, digital signatures and electronic invoices.

Pursuant to the new rules, all electronic documents which can be printed are considered to be legally binding with effectiveness and validity as means of evidence when marked by a digital signature certified by an accredited certifying authority. In addition, documents attached to electronic messages shall be qualified as registered letters provided certain requirements are met.

The rules provide guidelines applicable to certifying entities wishing to be accredited by an accreditation authority which is expected to be created in due course. Pursuant to these rules, companies that intend to engage in certification activity must fulfil certain requirements to be accredited. Computer and telecom companies are expected to be the main players in the certification business.

For more information, see:

7.ELECTRONIC COMMERCE

EUE-commerce directive

The European Union Directive on Electronic Commerce has been approved by the European Parliament on 4th May 2000. It requires Member States to implement its provisions into their national laws within 18 months, following publication in the EU’s official journal.

The Directive seeks to establish a coherent legal framework for electronic commerce within the community. It will ensure that information society service providers ("ISSP’s") benefit from the principles of free movement of services and freedom of establishment throughout the community, provided they comply with the law in their country of origin. The scope of the directive encompasses all ISSP’s established within the community and covers all information society services ("ISS’s") whether provided for remuneration or without charge.

The Directive further establishes specific harmonised rules in certain areas to guarantee the right to provide and use ISS’s throughout the community. These areas include the transparency obligations of inter alia advertisers, direct marketers, and ISSP’s; the conclusion and validity of electronic contracts; the settlement of on-line disputes; the possible exemption from and/or liability of ISSP’s and the role of national authorities. It is intended that the Directive will build on existing community instruments that harmonise or provide for mutual recognition of national laws including the Directive on Electronic Signatures adopted on 13th December 1999.

For more information, see:

INDIANew information technology bill

The absence of a legal regime addressing issues arising from technological developments has hindered the growth of e-commerce in India. This lacuna led to Government tabling the Information Technology Bill (the "Bill") before Parliament in 1999. The Bill seeks to facilitate the development of a reliable regulatory environment for e-commerce by clarifying issues relating to the validity of e-contracts, e-signatures and the use of e-records as evidence in judicial proceedings. The Bill proposes amendments to several existing law.

The salient features of the Bill are:

  • the legal recognition of digital signatures;
  • provisions for appointment of certification authorities to licence, certify and monitor digital certificates;
  • the appointment of a controller to oversee the activities and regulation of the certifying authorities;
  • the promotion of e-governance by allowing government records to be kept in electronic form and allowing for electronic filing of applications and forms with the government;
  • the definition of cyber crimes and provisions for punishment for such cyber crimes. It also authorises the police to search and arrest a person without a warrant if the police reasonably suspects that a cyber crime has been committed or is about to be committed.

Despite the ambiguity as to the nature and extent of liability of Internet service providers, the Bill has been passed by the Lower House of Parliament and is expected to be passed by the Upper House of Parliament shortly thereafter. The Bill would become law once it receives Presidential assent and is notified.

For more information, see:

8.INTELLECTUAL PROPERTY

ISRAELIntellectual property and domain names