Ewout Keuleers
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Publié le 11/02/2021
Les détenus peuvent-ils exiger un accès à Internet ?
La CEDH n’impose pas une obligation générale de fournir aux détenus un accès à Internet ou à des sites Internet. Pour autant, en fonction des cas particuliers, le refus de l’administration de laisser un détenu qui ne présente pas de dangerosité particulière accéder à des informations spécifiques, peut violer l’article 10 de la Convention.
Pénal
Publié le 25/01/2021
Espionner les mails de son conjoint peut constituer un acte de violence conjugale
La CEDH considère que la violence domestique n’est pas limitée aux seuls faits de violence physique mais inclut, entre autres, la violence psychologique ou le harcèlement. Elle juge que la cyberviolence est un aspect de la violence à l’encontre des femmes et des filles et peut se présenter sous diverses formes dont les violations informatiques de la vie privée, l’intrusion dans l’ordinateur de la victime et la prise, le partage et la manipulation des données et des images, y compris des données intimes.
Pénal
Publié le 11/08/2005
French PMU wins its first legal battle against online bookmaker
Rédige un résumé fluide et bien structuré de l’article suivant, d’une longueur comprise entre 220 et 250 mots : The Pari Mutual Urbain (PMU) has successfully overcome its first legal hurdle in a case it filed in June 2005 against the online bookmaker ZeTurf. As in most other remote gambling cases are the facts of this case relatively simple: The bookmaker, duly registered and incorporated in Malta, provides French internet users the possibility to bet on hose races, whereas this type of gambling services falls under the exclusive right of the PMU. The act of 16 April 1930 grants the PMU the monopoly to organise betting activities on horse races. In addition and since 1964, is the PMU also holder of the exclusive right to take bets on horse races that take place outside France. During the summary proceedings, the PMU recalled further that the so-called Perben II Act of 10 March 2004 sanctioned the unauthorized organisation of lotteries with two years of imprisonment and a fine of € 30 000. Important to note is that the Maltese bookmaker seemed in fact directly or indirectly linked to the French company Eturf. Even though the debate focused more on aspects of intellectual property and the exclusive rights of the PMU, and thus not on the cross-border provision of gambling services, the case illustrates that the de-localization of a gambling operation is not that easy and that proper attention should be paid to the principles of Regulation 44/2001 on the execution of civil decisions throughout the European Union. In its decision of 8 July 2005, the Court of Paris followed the PMU’s requests and argumentation. It pointed out that “the management of organization has been entrusted to the PMU by the companies authorized to be active in the field of pool betting outside the hippodromes, as it was provided by article 27decree no 97-456 of 5 May 1997 modified by the decree no 02-1346 of 12 November 2002” . Consequently “by taking online bets without proper authorisation Zeturf inflicts an obviously illicit perturbation to the PMU” . The Court then ordered “Zeturf Ltd to put an end to the activity of taking online bets on horse races organised in France, this on a penalty of € 15 000 per day following 48 hours from notification of the present decision . Zeturf has announced that it would appeal the decision. If it does so, one of the main arguments in the appeal procedure should be the compliance of French gaming restrictions, as evoked by the PMU, with the requirements of European law. Even tough the French Supreme Court held in the 1997 Dellner case, that the restrictions imposed to the cross-border activities of a UK bookmaker were justified, it can be questioned whether the actual French gaming policy meets the 2003 Gambelli and Lindman ECJ judgments. The so-called 2002 Trucy Report of the French Senate, for instance, raises questions on the legality of the French gaming policy, in particular because the French State is a majority shareholder of the Française des Jeux. Moreover, the French Senate does not exclude an initiative of the European Commission or that the gaming market could be regulated in a more liberal, but highly regulated and monitored manner. The decision of the Court of Paris is available on this site available on this site .
Pénal
Publié le 16/05/2005
Online gambling : the German Constitutional court paves way for German ECJ gaming case
Rédige un résumé fluide et bien structuré de l’article suivant, d’une longueur comprise entre 220 et 250 mots : The German Constitutional Court recently issued an important decision concerning the legality of intermediary activities for a Gibraltar licensed gaming operator. Seen the Gambelli judgment of the European Court of Justice (ECJ) and its reception by national courts, the German Constitutional Court, Bundesverfassungsgericht, raised substantial doubts on the compliance of the German cross-border gaming restrictions, notably article 284 StGB – Criminal code, and the requirements of European law. In line with the Gambelli and Lindman decisions, the Bundesverfassungsgericht stressed the need to have an in concreto analysis of the compliance of these national restrictions. In Lindman, the European Court of Justice (ECJ) held that Member states have to prove with statistical or other evidence, that the national restrictions on the cross-border provision of games meet the requirements of European law. Furthermore and as the German Bundesgerichtshof (BGH) in April 2004, the Constitutional Court made particular reference to the decision of the Landgericht München I of 27 October 2003. In this decision, the Landgericht held that the organisation of sports bets and lotteries was subject to a monopoly. However, this monopoly was not adopted and maintained for reasons of public order, but mostly for tax reasons. For this reason, the court stated it would not be justified to impose to an Austrian licensed bookmaker an obligation to obtain an additional German license. Eventually, it stated that it is almost impossible for a national court to answer the compliancy of the restrictions imposed with European law without referring the case to the ECJ. Based upon this statement, one can expect that there will soon be a German Gambelli III case pending before the ECJ in Luxemburg. In addition, the German Constitutional Court will soon issue another important ruling in a case relating to the freedom to exercise a profession and bring some fundamental clarifications to the current German gaming policy. Even though this debate is focused on article 12 of the German Constitution, i.e., the freedom to exercise a profession, for instance, act as an intermediary for a foreign gaming provider, the fundamental question is very similar to the one relating to the provision and promotion of gaming services across borders. One should only be allowed to restrict this freedom, provided that the German gaming policy is consistent and when the so-called reasons of public order justifying the restrictions are not merely used to protect the German gaming market from foreign competition. In this view, the aggressive commercial behaviour of State lotteries and Oddset, one of the six official suppliers of the 2006 World Cup, can be criticized. In line with the February 2004 decision of the High Administrative Court of Hessen and the December 2004 decision of the Landgericht of Baden-Baden, some other courts have already held that the German gaming policy did not meet the required justifications imposed by the EC Treaty and the jurisprudence of the European Court of Justice. For the time being and with its landmark decision still pending, the Constitutional Court asked local authorities to act prudent and refrain from too restrictive actions against local intermediaries. In conclusion, it will become very difficult for German authorities to enforce criminal restrictions and protect the German market from foreign competition. The decision of the court is available on this website.
RGPD & vie privée
Publié le 31/03/2005
Reconciling RFID technology with data protection principles
Rédige un résumé fluide et bien structuré de l’article suivant, d’une longueur comprise entre 220 et 250 mots : The Data Protection working group of the European Commission, the so-called Group 29, recently released a working document on RFID technology and privacy issues. Group 29 confirms that the use of low-cost Radio Frequency Identification technology (RFID) has substantial advantages in not only a number of sectors and industries, but also for individuals and public services, governments included. In addition to the more standard applications in the transport, distribution or retail sector, Group 29 underlines that RFID chips embedded in goods could also increase consumer safety. It is clear that the wide spread implementation of RFID chips in consumer goods, such as razor blades, cars, identity cards, cell phones, etc., also triggers certain underlying privacy issues. Indeed, the ability to surreptitiously collect a variety of data all related to the same person; track individuals as they walk in public places (airports, train stations, stores); enhance profiles through the monitoring of consumer behaviour in stores; read the details of clothes and accessories worn and medicines carried by customers are all examples of uses of RFID technology that give rise to privacy concerns. For this reason, Group 29 urges manufacturers and deployers of RFID technology to design and implement technology that is in line with the legal EU privacy framework. This framework consists mainly out of two European directives. In the first place, the data protection Directive 95/46 sets out the general principles for the processing of personal data, notably the rights of the consumer-data subject. Secondly, this general regime is contemplated by a sector specific directive. Directive 2002/58 on electronic communications and privacy deals with particular issues such as the use of hidden identifiers, e.g., RFID tags, and location data. 1. Application of general data protection directive 95/46 Directive 95/46 on the processing of personal data is only relevant to the extent that the RFID generated information is personal data. Group 29 acknowledges that this is not always the case. In some cases, tag information is not combined with other identifying material, for example someone’s photograph or name and address, or with a recurring reference number. However, one must be careful to come to this conclusion. Directive 95/46 defines “personal data” and “processing” in a very broad manner. Processing is basically “any operation or set of operations which is performed upon personal data ”, such as the collection, recording, organization, storage, retrieval, consultation, use, disclosure by transmission, dissemination or destruction. According to article 2 (a) ‘personal data’ shall mean “any information relating to an identified or identifiable natural person” This also means that a person can be identified indirectly by reference to an identification number such as the one of the RFID tag. Moreover and to determine whether a person is identifiable or not, account should be taken of all the means likely reasonably to be used either by the controller or by any other person to identify the said person. In contrast, the principles of protection do not apply to data rendered anonymous in such a way that the data subject is no longer identifiable. In contrast to the notion of personal data, the one of “anonymous data” should be interpreted strict and one must be aware that it may be very difficult to achieve true anonymous data. From the moment a person can make a link between the ‘anonymous RFID tag’ and a person, even indirectly, Directive is applicable. Eventually, one may not forget that RFID tags are designed to identify goods and/or persons. Similar to the use of internet cookies, or other hidden identifiers, even if the individual consumer is not immediately and directly identified at the item information level, he can be identified at an associative level because of the possibility of identifying him without difficulty via the large mass of information surrounding him or stored about him. Once the use of RFID, or Electronic Product Codes (ECP), is considered as the processing of personal data the deployers, most likely to be considered as controllers, and RFID manufactures should pay attention to the legal data protection requirements. 2. Implications of the application of the general data protection directive According to Group 29 it is not feasible to establish how all data protection requirements apply in each RFID scenario. It may be possible to give some general guidelines which data controllers can use and adapt in the light of the circumstances surrounding the data processing. Although it will be for the data controllers, e.g., deployers or distributors, to ensure the overall compliance with these requirements, Group 29 underlines that RFID manufacturers have a direct responsibility in ensuring that privacy compliant technology exists to help data controllers to carry out their obligations under the data protection Directive and to facilitate the exercise of the individual data subject’s rights. In this regard, the same EU body already recommended in November 2000 that “the design and selection of data processing technologies, including hardware and software, shall conform to the objective of processing no or as less personal data as possible and shall facilitate the exercise of the data subject’s rights”. Furthermore, Directive 2002/58 clearly states that “it may be necessary to adopt measures requiring manufacturers of certain types of equipment used for electronic communications services, to construct their product in such a way as to incorporate safeguards to ensure that the personal data and privacy of the user and subscriber are protected” . Besides the general principles on data quality and the justifying legal grounds for data processing, notably the consent of the data subject, one must pay respect to the rights of the individual data subject. In particular and in order to allow the latter to exercise his rights, it is of predominant importance that the individual is informed and made aware of the existence of a RFID processing operation. In this view, data controllers, e.g., shop owners or manufactures of consumption goods, processing information through RFID technology should provide the data subject at least with their identity, the purposes of the processing, information on the recipients of the data and the existence of a right of access. Furthermore, it can also be recommended that information is given on the means to discard, disable or remove tags from the products, thus preventing them from disclosing further information. Eventually, one must be aware of the eminent risk that third parties shall use RFID tags for other purposes than the initial purpose determined by the data controller or for cross-profiling purposes. This re-routing of the initial purpose shall be easy to achieve when the RFID radio signal broadcasted by the RFID tag is not secured and can be read by third party readers. In this regard, Directive 95/46/EC states that all data controllers must adopt appropriate technical and organizational measures to protect personal data against unauthorized disclosure or unauthorized access. In this view, the use of Privacy Enhancing Technology (PET), notably encryption algorithms, should be welcomed. More info ? Read the working document of Group 29 on RFID technology, available on our website .
Consommateur
Publié le 03/03/2005
Viagra no longer stands up … at least not for the moment
Rédige un résumé fluide et bien structuré de l’article suivant, d’une longueur comprise entre 220 et 250 mots : Pfizer, the manufacturer and distributor of the well-known drug Viagra had to take down its publicity on the Dutch website www.erectieplein.nl. On this website, sponsored by Pfizer, visitors could anonymously find information on erection difficulties and the different remedies and products available on the market. Furthermore, it was possible to order and obtain Viagra via links to an online doctor and internet pharmacy. As in other Member States of the European Union, advertising for drugs, in particular when they are only available on prescription, is subject to a rigorous and restrictive regulatory regime. For this reason the key question the Dutch Commission for Pharmaceutical Advertising had to answer was whether the Viagra related messages were objective public information or publicity. Since European law defines advertising in a very broad manner, the distinction between general information and commercials is sometimes very difficult to make. Article 1 of Directive 92/28/EC states that advertising of medicinal products shall include any form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption of medicinal products. Furthermore and with some limited exceptions, e.g., corporate websites and press coverage, the Directive on electronic commerce also defines electronic commercial communications broadly. Article 2 of the latter Directive states that commercial communication means any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exercising a regulated profession. For this reason, a website where a certain product, e.g., Viagra, or its image is promoted, can be considered a commercial communication. The Commission for Pharmaceutical Advertising held that the website www.erectieplein.nl had to be considered commercial information. In contrast to alternative products, the image of Viagra – and thus the product Viagra – was more than present. In addition, the statements made were not always neutral, nor merely informative. Furthermore, it was stressed that the links to the online e-doctor and internet pharmacy only referred to Pfizer’s Viagra product. For these reasons and irrespective of the fact that the website was not operated by Pfizer, the Commission ruled that it was Pfizer who made sure that the prescription and sale of Viagra via this website was promoted. In addition, this case underlines another interesting topic: the online or distance selling of medicinal products. Pfizer, in cooperation with an e-doctor and internet pharmacy, had set up a system to order Viagra online. From the erectieplein.nl website, visitors could log on to the website www.emaildokter.nl and file out an online request form for a Viagra prescription. Once the doctor delivered the required prescription, the visitor could purchase Pfizer’s erection difficulty product in an online pharmacy. According to the Dutch 1963 Act on the distribution of medicinal products, the online distribution of registered drugs by e-pharmacies is not strictly forbidden. For this reason, Dutch and European consumers can order drugs by telephone, fax or over internet. In the event a prescription is required, it is sufficient that this is sent to the e-pharmacy, delivering the drugs by post. From a European perspective, the situation is more complex. Both the Directive on B2C distance contracts as the electronic commerce Directive, applicable to most online activities, grant Member States the right to impose restrictions to the online promotion and selling of medical products to safeguard the general interest or public health. Article 14 of Directive 97/7 on distance contracts states that Member States may introduce more stringent provisions to ensure a higher level of consumer protection, including a ban on the marketing of certain goods or services, particularly medicinal products. In addition, the electronic commerce Directive does not encompass Member States’ legal requirements relating to the delivery or the transport of goods, including the distribution of medicinal products. In one of the first cases concerning the distance selling of pharmaceutical products, the European Court of Justice confirmed this possibility and held that Member States could impose certain restrictions on the cross-border trade of medical products. In its judgement of 11 December 2003, the Court held that a national prohibition on the sale of medicinal products by mail order is a restriction on the free movement of goods. A distinction is, however, made between the sale of prescription and non-prescription medicines. In the event non-prescription medicines are sold at a distance, or over the internet, this prohibition is not justified. It is possible that adequate advice and information is provided. Furthermore, the European Court stressed that new technologies such as internet, even have certain advantages. In contrast, for medicines available on prescription, the Court held that the prohibition for e-pharmacies can be justified. The possibility to receive such medicines without any other control could increase the risk of prescriptions being abused or incorrectly used. Moreover, the fact that the labelling of a medicinal product may be in a different language can have more harmful consequences in the case of prescription medicines. More info ? The decision of the Dutch Commission for Pharmaceutical Advertising is available on our website.
Pénal
Publié le 22/02/2005
Dutch Supreme Court rules on Ladbrokes appeal
Rédige un résumé fluide et bien structuré de l’article suivant, d’une longueur comprise entre 220 et 250 mots : On 18 February 2005 the Dutch Supreme court ruled in the Ladbrokes summary proceedings and rejected the appeal lodged against a September 2003 decision that recognized the exclusive right of the Dutch betting operator De Lotto. With this decision a process of more than 2 years seems to have ended. The debate, however, may still go on for a number of reasons. In the first place, the Dutch Supreme Court does not answer the most important question: can the imposed requirements be reconciled with European law, notably with the Gambelli and Lindman judgments of the European Court of Justice. An answer to that question shall most likely be given in the ongoing main proceedings. Secondly and in relation hereto, it should be noted that while the gaming restrictions were upheld in summary proceedings, the situation in the main proceedings is different, if not opposite. In its interlocutory judgement of 2 June 2004, the lower court of Arnhem requested a proof of a consistent gaming policy and preliminary concluded that the imposed restrictions did not meet the requirements of European law. A final decision in these main proceedings is expected for April 2005. Thirdly, it is unclear how this decision articulates with the above mentioned June 2004 decision of the Court of Arnhem and the outcome of the main proceedings. Even though the decision of the Supreme court has more ‘authority’, it must be stressed that it is only taken in the summary proceedings. Furthermore and seen the apparent contradiction, it might be more likely that the Court of Arnhem brings the case before the European Court of Justice. As the Tribunale di Larino in the Italian Placanica case, the Dutch Court in the main proceedings may be confused by the he difference between the interpretation emerging from the decisions of the European Court of Justice, notably the Gambelli judgment, and the jurisprudence of its Supreme Court. For this reason and to know how it should apply the Gambelli requirements, it can bring the case before the ECJ and request for a clarification. In the fourth place, the decision self can be commented form a European Internal Market perspective. In absence of any Community rule in the field of gaming, the Supreme Court holds that the case should only be considered under Dutch law. As Dutch residents can online access and participate in games organised by Ladbrokes without many difficulties, Dutch law applies…. By stating so the Dutch Supreme Court does not consider the de facto cross-border character of internet and their European dimension. The fact that the gaming platform is hosted and operated in another Member State is not very relevant. It is clear that this conflicts with statements made by the European Commission and a landmark decision of the Finish Court of Appeals of Turku. In accordance with the Directive on electronic commerce and the decision of the Landgericht München I of 27 October 2003, the Turku Court held in its decision of 31 March 2003 that the organization of gaming services is exclusively subject to the laws of the place of establishment (Country of Origin). As the Internal Market principle of the Directive on electronic commerce and the proposal for a Service Directive, a gaming operator should only comply with the law of its Country of Origin and cannot be submitted to additional requirements for the cross-border provision and promotion of its services. For this reason, authorities of Finland, or the Netherlands, cannot impose additional requirements or conditions to, e.g., a Malta based and licensed remote gaming operator. Furthermore, the Supreme Court seems to ignore the ECJ Lindman judgment of 13 November 2003. In Lindman, the ECJ obliged the Member states to prove, with statistical or other evidence, that the imposed restrictions meet the requirements of European law and thus that the underlying reasons are clear and present. The Dutch Supreme Court holds that a theoretical abstract threat for consumers and of money laundering is sufficient to override the freedom to provide services throughout the European Union. Eventually and in relation to the Community rules, reference can be made to the opinion of Advocate General Gulmann in the Schindler case. Gulmann held that by virtue of the principle of equivalence, the Member State of destination may not impose additional restrictions to the cross-border provision of services if those services are already subject to the adequate rules of the home state. Recognising the necessity to limit the overall supply of gaming services and in absence of any Community rules in this field, restrictive measures necessarily had to be taken by each Member State separately. A contrario, this implies that when European rules in the field of gaming and associated services would be adopted, e.g., via the proposal for a Service Directive, the arguments evoked by Member States to justify the restrictive measures, notably the protection of society at large, would lose their relevance. In this view and with a possible ECJ referral in the main proceedings, the gaming issue can again be brought on the European agenda. With the new Placanica case already pending before the European Court, 2005 seems to become a very important year for the European remote gaming industry. Not only is there the European Commission’s study on gambling, the second review of the electronic commerce Directive, but also the famous Service Directive will be debated in the European Parliament. Eventually, one may not forget that it is very likely that regulatory models adopted by the United Kingdom, Malta and Slovakia will lead to serious internal market distortions, underlying the need of a European initiative in the field of remote gaming and associated services. More info ? See the Supreme Court order, available on our website.