The Belgian law governing the conduct of business online is mainly set out in the Belgian Code of Economic Law (BCEL). Some provisions are specific to online business, while others apply to all business activities. The main applicable books of the Belgian Code of Economic Law are:

Other laws governing the conduct of online business are the:

The federal legislative power is exerted collectively by the King, the Chamber of Representatives and the Senate. An Act of Parliament must be determined by parliament (the House of Representatives only) or together with the Senate (the federal legislature), signed by the King and published by the current government (the federal executive power).

Some e-commerce companies are members of a professional association that requires its members to comply with a code of conduct. There are generally two types of code of conduct:

The Belgian Association of Companies, active in distance selling over the internet, has created a code of conduct which sets out basic principles that must be respected to give the necessary guarantees to the consumer.

New businesses should establish a corporate vehicle through which the business will operate (for example, a public limited company (Naamloze vennootschap) or public limited liability company (Société anonyme). The deed of establishment must then be filed by hand or by e-deposit at the registry of the Commercial Court. If the business intends to trade through the website, it must apply for a VAT identification number.

The business will also need to hire staff with the necessary expertise, such as a website developer and an internet service provider to host the website.

The company's website must display the following information:

Generally, an online business can expect to contract with as few or as many parties as the business model sees fit. The most common relevant parties are:

From the 23 September 2020, all websites and mobile applications of the public authorities have had to comply with the standard imposed by the Web Accessibility Directive ((EU) 2016/2102) This means that all public bodies' websites and mobile applications must be accessible to people with disabilities. The criteria to be met include the following:

Online businesses can use online programs to develop apps without the assistance of a third party. However, the most straightforward way of developing and distributing an app is to enter into an agreement with an app developer. If this route is used, businesses are advised to:

Electronic contracts are generally subject to general formation rules, including those in the Civil Code. The Civil Code contains provisions concerning the capacity of the parties, valid consent of the parties, confirmation of the lawful purpose and consideration of the contract.

There are additional requirements for electronic contracts (although, B2B parties can deviate from these requirements). The offer must include the following information (Articles XII.7-9, BCEL):

In addition, the business must acknowledge receipt of the order without undue delay and by electronic means, and the acknowledgement of receipt must contain a summary of the order. The order and the acknowledgement of receipt are deemed to have been received when the parties to whom they are addressed are able to access them.

Book VI of the BCEL relating to fair trade practices and consumer protection requires additional information in the framework of distance contracts in a business-to-consumer (B2C) context (Article VI.45, BCEL). This covers, in particular:

The following information must be provided to the consumers on the order pages (ideally on the first page instead of at the end of the ordering process) before the purchase is made:

In addition, the consumer must expressly be made aware of their obligation to pay on making an order. If placing an order requires clicking on a button or a similar function, it must be labelled in a clear and legible manner with the words "order with obligation to pay" or a similar unambiguous indication. Failing such indication, the consumer will not be bound by the order or contract.

General terms and conditions can only be applied if they have been properly brought to the attention of the consumer, and are in principle applicable after the acceptance of the consumer. Therefore, it must be demonstrated that the consumer had effective and reasonable knowledge of the terms and conditions (in this regard, the language of the terms and conditions is relevant). In addition, such knowledge must have occurred before or by the signature of the contract.

If the supplier did not provide a reasonable opportunity for the consumer to discover the general terms and conditions, the terms will not be enforceable.

There is no required format for concluding an electronic contract but in a B2C context, the seller must provide the consumer with a "durable medium" (including all the information referred to above), at the time of delivery at the latest.

In a B2C context, the consumer has 14 days from the conclusion of the agreement or from the day on which the consumer acquires the physical possession of the goods to notify the seller of their withdrawal from the contract and a further 14 days from this date of notification to return the product.

However, there are some exceptions to this right, such as:

A click-wrap contract requires the user to tick a box to mark its agreement with the contract, after having taken cognisance of the content of the contract, while a browse-wrap contract refers to the availability of the terms and conditions via a hyperlink.

For shrink-wrap contracts, terms and conditions are available inside the "package".

Click-wrap contracts are generally valid under Belgian law. Browse-wrap contracts are also accepted under Belgian law if the hyperlink is displayed before concluding the contract. However, mere display of that hyperlink at the bottom of the webpage will not suffice. The acceptance of the terms and conditions is presumed.

As consultation of terms and conditions must be possible before or by the signature of the contract, shrink-wrap agreements are not valid under Belgian law.

All contracts can be formed electronically apart including those:

Before 20 October 2018, the above contracts could not be concluded electronically, however the amended Article XII.16 of the BCEL now allows this unless the competent courts and tribunals consider that "practical obstacles" exist.

This amendment is aimed at harmonising the concepts of electronic signature and durable medium and removing obstacles to the conclusion of contracts by electronic means.

Only in exceptional circumstances, when a judge finds that the legal formal requirements are impeded in the electronic environment, the judge can consider that the contract has not been validly concluded.

There are no specific limitations on choice of language, except that before the point where the order is placed by the recipient of the service, a service provider must give in a clear, comprehensible and unambiguous manner all information about the languages offered for the conclusion of the contract (Article XII.7, BCEL).

The general rules of the Civil Code and Book XII of the BCEL apply to both B2C and B2B contracts.

Book VI of the BCEL contains additional requirements relating to fair trade practices and consumer protection that apply to B2C contracts only.

The law of 14 April 2019 adds to Book VI of the BCEL a "black list" and a "grey list" of unfair contract terms in B2B contracts and extends the prohibition of unfair commercial practices to the B2B context (see Question 1).

The Platform to Business Regulation ((EU) 2019/1150) (P2B Regulation) has applied in Belgium since 12 July 2020. Since then, online intermediation services and online search engines that provide their services to business users must include in their general terms and conditions a description of the key parameters that determine how prominently goods and services are displayed on their platform.

For more information in relation to governing law in an international context, see Question 29.

The service provider must confirm, before the customer places their electronic order, whether it will retain the concluded contract and whether it will be accessible to the customer (Article XII.7, §1, 4°, BCEL).

Furthermore, the service provider must be able to demonstrate to the customer that it has fulfilled its duty of information and issued an order confirmation (Article XII.11, BCEL). This requires the retention of the data relating to such obligations.

The Trusted list of Belgium provides a list of qualified service providers established in Belgium, together with information related to the qualified trust services they provide. This list is published by the European Commission (EU list of trusted providers).

There are no other governmental or official trusted site accreditations for websites in Belgium.

However, there are trusted site accreditations and labels by private companies or consumer protection organisations aimed at guaranteeing the quality of products and services as well as the reliability on online businesses, such as SafeShops.be, UNIZO, Trusted Shops, Euro-Label and u-cert.org.

There is no distinction under Belgian law between remedies for businesses or consumers for breaches of electronic contracts.

The remedies for breach of an electronic contract are identical to the remedies available for breach of any other type of contract. Under Belgian civil law, the main legal remedies are cancellation, unenforceability, specific performance, and/or damages (but not punitive damages).

In addition, where a specific regulatory requirement is breached, other remedies may be applicable (for example, a breach of the obligation to provide and inform on the right of withdrawal extends the period in which the consumer can exercise such right).

Belgian law recognises e-signatures.

The specific laws applicable to e-signatures in Belgium are the following:

Book I of the BCEL defines an e-signature as a qualified electronic signature or qualified electronic seal referred to in the Electronic Identification Regulation ((EU) 910/2014) or any other electronic signature that satisfies the criteria set by law to guarantee the identity of the parties and their consent to the content of the document.

In relation to the format of an e-signature, Belgian law recognises three types of format:

There are no limitations on the use of e-signatures under Belgian law. However, in some sectors (for example, the financial sector) additional means of identification will be required at a later stage.

The collection or use of personal data in Belgium is regulated by the:

The Belgian Privacy Act applies to:

For further information on data protection laws in Belgium, see Data Protection in Belgium: Overview.

The GDPR and the Belgian Privacy Act apply to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.

Personal data means any information relating to an identified or identifiable natural person (data subject). An "identifiable natural person" is one who can be identified, directly or indirectly, in particular by reference to an identifier.

Special categories of personal data include:

The processing of personal data (including collection) is lawful if it is based one of the following grounds:

"Processing necessary" must be interpreted restrictively and narrowly, therefore requiring a close and substantial connection between the processing and the purposes.

The collection of special categories of personal data or "sensitive personal data" is subject to more specific and reinforced grounds and will be prohibited unless:

There are no specific limitations on the storage of personal data in the cloud. However, it must comply with the general data protection principles and requirements (see Data Protection in Belgium: Overview).

Personal data can be transferred within the European Economic Area (EEA) if a lawful basis for the processing exists. Transfers of personal data outside of the EEA to third countries and international organisations are only allowed based on:

The following public authorities have powers to access or compel disclosure of personal data relevant to the exercise of their public functions:

The use of cookies is governed by the Law of 13 June 2005 on electronic communications, which requires prior informed consent for storage of or access to information stored on a user's terminal equipment.

However, a cookie is exempt from the requirement of consent if the following applies:

Belgian law applies when:

If the use of cookies concerns the processing of personal data, the applicable data protection legislation must be complied with, specifically the requirements for consent (see Question 16). A pre-GDPR recommendation of the Belgian Data Protection Authority on cookies, states that the following should be taken into consideration:

The data controller and processor must implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including (among other things):

The Law of 13 June 2005 on electronic communications provides for similar obligations with respect to publicly available electronic communications services. Appropriate technical and organisational measures must be taken to safeguard the security of these services. In case of a security or data breach, providers of publicly available electronic communications services (for example, telecommunications companies, internet service providers and e-mail providers) must notify the competent authorities and the users as soon as possible.

The use of encryption is free but not required (Law of 13 June 2005). However, in some instances, encryption has been recommended by the Belgian Data Protection Authority, notably with regard to health data and ''bring your own device''. In the proposed revision of the law on electronic communications (implementing the European Electronic Communications Code) there is an obligation for operators of electronic communications networks to take appropriate and proportional technical and organisational measures. This includes encryption, properly managing the risks to the security of their networks and services and minimising the impact of security incidents on users and on other networks and services.

The GDPR also refers to encryption as an example of an appropriate security measure.

Under Belgian law, electronic payments are considered as payment services and are consequently subject to the regulations concerning normal payment services (Book VII, BCEL). These regulations are not directed to e-commerce providers but to payment services providers, and are therefore beyond the scope of this guide.

Companies and internet providers must guarantee the security of internet transactions (see Question 19).

The age of consent regarding the process of personal data with respect to offering information society services to children is 13 years (Belgian Privacy Act). If the child is below 13, such processing can only lawfully be carried out if and to the extent that consent is given by the child's legal representative.

Minors are entitled to enter into contracts under Article 5.43 of the Civil Code and can therefore make purchases of consumer goods online provided they are not "injured" by the act of acquisition (that is, provided the purchase remains acceptable in relation to the minor's financial means and interests). If the purchase is disproportionate, the minor's parents have the right to return the purchased item to the seller and claim a refund for the amount spent.

Under Belgian law, advertising aimed at minors is regulated under unfair commercial practices and unfair business practices (Book VI and Book XIV, BCEL). According to these provisions, a website aimed at children must not contain incentive advertising that directly encourages minors to buy or persuades their parents to buy goods or services.

However, some important areas of consumer law do not take into account the vulnerability of minors and does not offer any particular protection to minors. These areas include, for example, information and the right of withdrawal in the event of distance purchasing. For internet purchases, the adult or minor consumer must receive more information than for a normal purchase.

In relation to the content of websites aimed at children, Belgian law prohibits any content that presents a risk for minors (that is, pornographic content, violent content, incentives to violence and so on).

There are no general laws in place protecting companies that resell or market online digital content, services or software licences provided by a supplier outside of Belgium.

There is no general prohibition on linking or framing a third-party website.

The Court of Justice of the EU cases, Svensson case of 13 February 2014, C-466/12 and BestWater International case of 21 October 2014, C-348/13 apply here. Under these cases, it is permissible (under copyright law), to hyperlink to a third party's website, provided the linked material:

The GS Media case of 8 September 2016, C-160/15 further specifies the rules applicable when the material was communicated on the internet without the consent of its owner. Under these rules, if the person hyperlinking is aware of the unlawful source of the material, their act is considered a communication to the public subject to the authorisation of the right holder. Such knowledge is presumed, however, when the person hyperlinking pursues a commercial gain.

The compatibility of some types of linking, such as framing, could potentially be challenged under the prohibition of unfair trade practices towards other enterprises.

There is no general prohibition on the use of metatags or advertising keywords.

The EU Court of Justice (ECJ) stated in the Belgian Electronic Sorting Technology case of 11 July 2013, C-657/11 that the use of a domain name and that of metatags in a website's metadata falls under the concept of advertising. The court came to this conclusion since the use of metatags constitutes a promotion strategy in that it aims to encourage the internet user to visit the site of the metatag user and to take an interest in its goods or services. It is thereby irrelevant that the metatags are invisible to the internet user.

Therefore, the provisions of title 4 of Book VI of the BCEL (implementing the Unfair Commercial Practices Directive) apply to the use of metatags and advertising keywords (see Question 31)

More particularly, the provisions on comparative and misleading advertising must be taken into account when using metatags of keyword advertising. A company which refers to a competitor or its products in the metadata of its website must be careful not to cause confusion by taking unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of its competitor and not to mislead as to its identity. The same applies to the purchase of keywords, in that it should not result in disguised or misleading advertising or unfair commercial practices.

With respect to keyword advertising, the ECJ clarified in the Google and Google France case of 23 March 2010, C-236/08 to C- 238/08 and the Interflora case of 22 September 2011, C-323/09, that the proprietor of a trade mark is entitled to prevent a competitor from advertising on the basis of keywords which are identical with the trade mark, of goods or services identical with those for which that mark is registered where:

Belgian domain (.be) names as well as Belgian regional domain names (.brussels and .vlaanderen) must be applied for through one of the registered agents of DNS Belgium, which is the Belgian domain-name authority. Domain names are awarded on a ''first come, first served'' basis.

There is no requirement that the applicant of a Belgian domain name must reside in Belgium.

For more information, the general terms and conditions for .be domain names (applicable as from 25 May 2018) or the general terms and conditions for .vlaanderen and .brussels domain names can be consulted on the DNS Belgium website.

The first person who carries out a registration within a certain domain holds the ownership of such domain name. Apart from that, domain names do not confer any additional rights. However, under Benelux trade mark law it is possible to register a domain name as a trade mark, if it fulfils the necessary requirements for trade mark registration. Furthermore, the use of a domain name can be used to establish prior use of a sign or business name.

Under Benelux trade mark law and the specific Belgian rules on abusive registration of domain names in Book XII of the BCEL, it is possible to oppose the registration of a domain name that infringes on an existing trade mark, business name, geographical indication, original work, surname, or a name of a geographic entity.

The right to a business name accrues to the business that makes the first visible, public, and constant use of that business name. A formal registration is therefore not required to acquire rights to a particular business name. However, to prove the first use it may be useful to have the business name registered with the Belgian "Crossroads Bank for Enterprises" (Kruispuntbank van Ondernemingen/Banque-Carrefour des Entreprises).

A business name allows the holder to prohibit third parties from using an identical or similar name which could cause confusion with the trade name. However, this practice only applies within the limits of the trade name's influence (that is, within the region and sphere of activities where this trade name is known and used).

The scope of protection of a trade name is therefore entirely determined by the way in which this name is used. The more well-known a trade name is, the larger is its protection. Conversely, the right to use a trade name expires once it is no longer used.

When selecting and using a business name, the business must take into account existing third-party trade marks (see Question 27).

Business to business (B2B) agreements. Within a European context, the applicable jurisdiction for contractual obligations (including internet transactions) is the jurisdiction in which the obligation is performed (Article 7, Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Recast Regulation)). In the case of the sales of the goods, the jurisdiction will be where the goods were delivered or should have been delivered. In the case of the provision of services, the jurisdiction will be where the services were provided or should have been provided. However, the parties can agree on another jurisdiction to govern their internet transactions.

In an international context, in the absence of a specific international convention or specific agreement between the parties, Belgian private international law rules will apply.

Business to customer (B2C) agreements. Regardless of any choice of jurisdiction made by the parties, a consumer can always bring proceedings against the other party to a contract either in the courts of the member state in which that party is domiciled or the courts where the consumer is domiciled (Article 18, Brussels Recast Regulation). However, proceedings can only be brought against a consumer in the courts of the member state in which the consumer is domiciled.

B2B agreements. The existence and validity of a contract is determined according to the governing law stated in the contract itself (Article 10, Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I)).

The parties are free to choose the law which will govern their international contract. In the event that the parties do not choose which law will govern the contract, the applicable law is determined in accordance with the rules set out in Rome I (in particular, the procedure set out under Article 4).

B2C agreements. The governing law in a B2C contract will be the law of the country in which the consumer has their habitual residence, provided that the seller pursues their activities in that country or, by any means, directs their activity to that country (Article 6, Rome I).

The parties are free to specify a different governing law within the contract, but in the event that the law cannot be derogated from by agreement, the consumer will have the benefit of the provisions of their national legislation.

CEPANI/CEPINA is the organisation that specifically deals with ADR/ODR options in Belgium. The main problem with a successful ADR/ODR procedure is its high price. For example, a dispute with regard to a domain name can easily cost more than EUR1,600 before CEPANI/CEPINA.

The Belgian Act on the Out-of-Court Resolution of Consumer Disputes (Law of 4 April 2014 on the insertion of Book XVI "Extrajudicial settlement of consumer disputes" in the Code of Economic Law), implementing the ADR Directive (2013/11/EU), focuses on the internal complaints procedures of companies. The most important development, however, is the creation of a Consumer Mediation Service (Consumentenombudsdienst/Service de médiation pour le consommateur) and the definition of a number of quality requirements for the different ADR entities in Belgium (Book XVI, BCEL).

Consumers in Belgium can choose between various forms of ADR:

Various professional associations have collaborated with consumer organisations to set up bodies for ADR purposes. The following arbitration, mediation and conciliation bodies have been created:

Under the ODR Regulation (EU 524/2013), the European Commission established a web-based platform specifically designed to assist consumers who have problems with their online purchases. This European ODR platform leads to a more streamlined process for online traders and customers to resolve issues without having to go to court. The online dispute resolution can take place in all European languages. All EU online traders are required to provide a link from their website to the ODR platform. This link must be visible and easily accessible on the website. In Belgium, the contact point that provides support with the resolution of disputes relating to complaints submitted through the ODR platform is the European Consumer Centre (ECC).

The Belgian platform, Belmed, deals with disputes arising between European consumers and companies registered with the Crossroads-Bank for Enterprises (CBE) or with B2B disputes. If the seller is not registered with the Belgian CBE, Belmed cannot be relied on. Belmed can deal with all commercial disputes, irrespective of whether they arise from e-commerce.

The remedies available for ADR/ODR options are:

Under Belgian law, there is no code governing advertising standards. Commercial advertising in Belgium is governed by a regulatory framework made up of binding legal provisions (mainly from the BCEL) and self-regulated, non-binding professional rules.

There are also additional rules in particular sectors or specific media channels, such as online or TV/audio-visual content, specific products (such as toys, food, tobacco, alcohol, medication, consumer credit, and lotteries) and rules aimed at protecting vulnerable consumers such as minors.

Advertising is also regulated by self-regulatory bodies that publish various codes, rules, and recommendations on professional ethics. For example, the Jury for Ethical Practices in Advertising (JEP) has published recommendations on influence marketing based on the principle that all commercial communications must be clearly identifiable as such.

The main general legal provisions are:

Several types of products or services are prohibited from being advertised or sold online, or are subject to additional restrictions. For example:

To sell products or services that are covered by regulatory rules and authorisations (for example, medicines, financial services, and games of chance), accreditation from the relevant Belgian governmental agency (or a professional chamber) must be obtained. In addition, the advertisement of these products or services, and many other products (for example, financial services, alcohol, and foods), are subject to additional specific requirements set out under the BCEL, and in more specific relevant legislative provisions.

Enforcement of these rules lies with the Inspection Services of the competent Federal Public Services and Agencies, such as the Federal Public Service Economy for general economic matters or the Federal Agency for Medicines and Health Products, for health products matters.

The use of electronic mail for commercial purposes is prohibited without the prior, free, specific and informed consent of the recipient (Book XII, BCEL). "Electronic mail" is interpreted broadly to include not only emails but also text messages.

When sending commercial electronic mail, the service provider must:

Therefore in the event of a dispute, the service provider must prove that advertising by means of electronic mail was requested by the recipient.

However, prior consent may not be necessary provided that all of the following conditions are met:

A company is also allowed to send electronic mail to legal entities if the contact details used for that purpose are impersonal. This exception applies even if the legal entity is not an existing customer.

The law on language use in Belgium also applies to e-commerce. The most important aspect is that the parties concerned understand the terms and conditions. Under Belgian law, general terms and conditions drafted in a language that the customer does not understand are not enforceable against them (Ghent Court of Appeal, 9 April 2008, RAAG, 2008, livr 15, p 959). Therefore, it is customary for the terms and conditions to be available in all languages in which the website is available.

Sales concluded online are subject to VAT (see Question 36). Belgian online businesses may be required to pay VAT abroad.

Sales concluded online are also subject to income tax. Income taxes may not only be due in the country where the online business is established, but also where it uses a permanent establishment outside the country of establishment.

Rules are in constant development and vary from country to country (for example, access to a website could potentially trigger a permanent establishment to which the online business must allocate part of its profits). Belgian online businesses may therefore be required to also pay income tax abroad.

In Belgium, online-business must register for VAT purposes with their competent VAT office (that is in the jurisdiction of their establishment) before engaging in any activities that trigger VAT.

Foreign online businesses that would be liable to Belgian VAT should, in principle, register with VAT Central Office for Foreign VAT taxpayers (Bureau Central de TVA pour Assujettis Etrangers/Centraal Btw- Kantoor Buitenlandse Belastingplichtigen). The new "One Stop Shop" rules (applicable from July 2021) however in most cases allow foreign online businesses to render taxable services in Belgium without registering in Belgium (see below).

The Belgian VAT rate is 21% (although reduced rates apply to specific services and goods).

Online sales can be subject to foreign VAT rules and rates, depending on where a transaction is deemed to be located for VAT purposes. The localisation rules depend on (among others) the:

As of 1 July 2021, the new "One Stop Shop" (OSS) EU rules were introduced. This means that online businesses not established in Belgium but in another member state no longer have to register and complete VAT filings in Belgium if they want to sell goods or provide services in Belgium. It is now sufficient for online businesses to register in their country of establishment, and declare and pay VAT due in Belgium via a web-portal in the member state in which they are identified. The country of identification then forwards the tax money to Belgium. The use of OSS is optional and online sellers liable for VAT in Belgium can still chose to register for VAT in Belgium and pay it directly in Belgium.

Due to the introduction of this simplified scheme, the registration threshold simplification is withdrawn. This means that foreign online businesses will have to charge the Belgian VAT rate on every sale they make in Belgium. However, if the total turnover for all distance sales together of the business is less than EUR10,000 excluding VAT, this business can use the micro-enterprise scheme and charge the VAT of its country of identification for all distance sales.

OSS is not available in all instances for non-EU online businesses. The OSS scheme can only be used by non-EU established VAT payers that choose to register under the OSS scheme in Belgium. This concerns, for example, telecommunication services, broadcasting services and transport services.

Online-business generally do not have to formally register with the direct income tax authorities. However, they should closely monitor deadlines for filing tax returns, as there is no automatic request or reminder to file a tax return for the first tax year (because there is no formal registration requirement).

Belgian online-business or permanent establishments of foreign online-business are, in principle, subject to a 25% corporate income tax rate. If qualified as an SME, lower rates may apply.

The (un)lawfulness of content is assessed under the general principles of tort liability. These are set out under Belgian law in Articles 1382 and 1383 of the Civil Code. Under these general provisions, anyone can introduce a tort claim where the existence of a fault, of damage and of a causal link between the fault and damage can be demonstrated.

Under Belgian tort law, a person must compensate for the damage caused by their fault (Article 1382, Civil Code) or by their negligence (Article 1383, Civil Code). This fault or negligence can be due to:

Accordingly, when online content is examined under these provisions, its lawfulness will largely depend on the context and previous standards set out in case-law.

Additionally, certain content can be examined in the framework of unfair market practices, such as where a person posts misleading or false statements on an online platform about a competitor (Article VI. 104, BCEL).

In certain circumstances, online content can also violate the Belgian criminal law and therefore amount to a criminal offence:

In principle, the internet user who writes or places illegal content online is responsible.

The (civil and criminal) liability of a service provider (such as websites hosting user-generated content) for unlawful or infringing content of others stored by this service provider will often be exonerated by Article 14 of the E-Commerce Directive, which has been transposed to Belgian Law in Article XII. 19 of the BCEL.

The service provider is not responsible or liable for the information of others that it stores, as long as the service provider:

The service provider is therefore not liable for storing unlawful content of others, as long as it has no knowledge of the (unlawful nature of) the content, or deletes (or makes inaccessible) the content immediately after becoming aware of it (for example, after it received a take-down notice regarding the content).

The legal information that a website operator must provide are:

See Question 6.

The website operator is liable for any content it published on its website; including any mistakes (see Question 38).

In the event of incorrect pricing, the online trader is compelled to sell at the advertised price. However, when the displayed price is a manifest error, the online trader can refuse to sell consumers the product.

Unfair commercial practices, such as misleading claims, (see Question 1 and Question 31) are also regulated online. Compliance with Book VI of the BCEL is monitored by the General Management of the Economic Inspection Department (Direction Générale de l'Inspection économique; Algemene Directie Economische Inspectie).

Regarding content uploaded by third parties, a specific statutory liability regime (safe harbour) applies to hosting providers who merely store content (for example, technical hosting providers or neutral large content platforms). The hosting provider will not be liable for the stored content if one of the following applies (Article XII.19, BCELBCEL (implementing the E-commerce Directive)):

It is good practice for a trader to include disclaimers as regards the accuracy and the availability of content on its website so as to limit potential liability if the trader has displayed content by mistake. However, this may not always be sufficient. For instance, traders will generally be bound by pricing errors and in a B2C context, liability clauses are generally considered as unfair or abusive.

In a B2B context, the terms and conditions or terms of use of a website is sufficient to limit any liability in case of mistake of the retailer on the site.

To benefit from the defences under the E-Commerce Directive (see Question 40), ISPs can reserve rights to take down infringing websites, content or links without permission. These defences protect ISPs where they act as mere conduits, hosts of information, or merely cache information. However, to benefit from the hosting and caching defences, the ISP must "act expeditiously" to remove or to disable access to infringing content once it has actual knowledge of it, for example, as a result of a notice and takedown system.

Frequently, ISPs will not disable content or access to such content unless they are obliged to do so by a court order. Content owners are able to obtain injunctions against ISPs whose services are being used by a third party to infringe intellectual property rights (Article XVII.14§4, BCEL). Belgian courts have granted website-blocking injunctions on this basis (for example, Pirate Bay websites).

Liability for products or services supplied online is the same as for offline sales.

However, the Digital Content and Digital Services Directive ((EU) 2019/770) seeks to introduce explicit liability of suppliers towards the consumer. Under the provisions of the Directive, the liability of the supplier would cover three situations:

The Directive further provides that a reversal of the burden of proof (that is, on the supplier) applies throughout the liability periods referred to above.

This Directive has been implemented into Belgian law by the Law of 30 March 2022 amending the provisions of the former Civil Code relating to consumer sales, inserting a new Title VIbis in Book III of the old Civil Code and amending the BCEL.

Online businesses should obtain the same insurance policies as other businesses (in particular, insurance for civil and professional liability). An insurance broker should ideally be consulted to assess the most appropriate insurance depending on the activities at stake.

As part of the EU Digital Single Market strategy, several instruments have been adopted by the European Commission which will impact Belgian legislation, once implemented.

Additionally, several other reforms are still in the pipeline.

The Digital Markets Act (Regulation 2022/1925) was adopted in September 2022. It aims at preventing gatekeepers (platforms that have a significant impact on the internal market, serve as an important gateway for business users to reach their end users, and which enjoy, or will foreseeably enjoy, an entrenched and durable position) from imposing unfair conditions on businesses and end users.