Developments in data privacy in Belgium

These days, data privacy is a hot topic in Belgium. In the past few weeks, some major developments have taken place.

Firstly, the Constitutional Court of Belgium declared invalid the Act that allowed police, security and judicial authorities general access to metadata. The Act required telecom operators to retain customer metadata for one year and, under strict conditions, to provide access for police and other security authorities, enabling them to use the information in their investigations. So-called “metadata” does not include in this context the content of communications via telephone, text or e-mail, but only information about the communication itself (when it took place, with whom, where, which computer was used, etc.). The Belgian Constitutional Court decided that the infringement of the law on the right to privacy was disproportional and therefore unlawful.

Secondly, the State Secretary for Privacy, Mr Bart Tommelein, has in the past frequently voiced his concern about Facebook's recently updated general conditions, and now the Belgian Privacy Authority ("Privacy Commission") has initiated proceedings against the internet giant. The Privacy Commission decided on taking legal action against Facebook after it became clear that Facebook was using its well-known 'Like' button to track and trace all users of websites that have a 'Like' button on their page, even users that did not have a Facebook account. With the help of cookies, Facebook gathered information on the surfing behaviour of users of these websites and provided this information to companies that used it for advertising purposes. When this came to light, Facebook stated it was a 'bug' in the system, but the Privacy Commission was not satisfied with this response, and now it has initiated legal proceedings against Facebook before the Court of First Instance in Brussels. It will prove to be an interesting court battle.

Finally, although at the European level discussions are ongoing about new, more harmonised privacy standards, the Belgian State Secretary for Privacy has declared that he no longer wants to wait to take action and announced that he will take the initiative to propose an adaptation of the current Privacy Act, allowing the Privacy Commission to sanction infringements of this Act with fines of up to EUR 810,000.

It seems that Belgian courts and the Belgian government are taking the issue of data privacy more and more seriously and we can expect some new developments in the coming months.