Other sections of this issue:
Privacy & Data Protection | ISP-Liability & Media Law | Contracts & E-Commerce |
Electronic Communications & IT

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• ICANN's new gTLD program far from finalized
• Belgian court asks ECJ for guidance on jurisdiction over websites
• Belgian decree on internet sales of medicines published

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ICANN's new gTLD program far from finalized

End 2008, there were 21 generic top level domain names (gTLDs). On June 26, 2008, ICANN approved the recommendation of a new gTLD program which would allow companies to register domains under any new gTLD. ICANN prepared a Draft Applicant Guidebook for new gTLDs. It was made available for download last summer and ICANN expected the public to comment from October 24, 2008 to December 8, 2008. It extended the deadline twice, once till December 15, another time till January 7, 2009. ICANN had requested input on the implementation plan reflected in the Guidebook. It is presently reviewing over 300 comments and says it expects to come back with a reviewed Guidebook before the end of the first quarter.

For the sake of clarity: services presently offered on the market to interested parties are not supported by ICANN and have no legal basis. There is no such thing as so-called “reservations of gTLDs”.

What is ICANN’s Draft Applicant Guidebook about ? It deals with the following issues, in the following order:

• Application process: ICANN drafted an application process, and requires the production of documentation and the payment of fees.
• Evaluation procedure: Applications are reviewed according to a set of criteria for approval.
• Dispute resolution procedure: Third parties may have grounds for formal objection concerning gTLD applications submitted. ICANN set up a dispute resolution procedure that can be triggered by such objection.
• String contention procedures: ICANN also thought of mechanisms for resolving contention when there is more than one qualified applicant for identical or similar gTLD strings
• Transition to delegation: Once an applicant is withheld to control a new gTLD, he still has to fulfill final steps, including the execution of a registry agreement and the completion of pre-delegation tests.
• Terms and conditions: Finally, an application must comply with terms and conditions

As regards the dispute resolution procedure, ICANN provides four grounds for objection.

A formal objection can be filed only on one of these four grounds:

• String Confusion Objection: The applied-for gTLD string is confusingly similar to an existing TLD or to another applied-for gTLD string.
• Legal Rights Objection: The applied-for gTLD string infringes existing legal rights of the objector.
• Morality and Public Order Objection: The applied-for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under international principles of law.
• Community Objection: There is substantial opposition to the gTLD application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted.

The details of the Guidebook have not been finalized yet. Further consultation and revision are expected to take place in the first half of 2009. Also, some areas of the new gTLD program remain even under development. These include details on the duration of each stage of the application, the identification of third party service providers that will be part of the evaluation panels and that will manage the dispute resolution, and the fees in that will apply to applicants. These areas are said to also become available for public consultation. However, it remains unclear when these may be expected.

For more information, contact: Flip Petillion.

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Belgian court asks ECJ for guidance on jurisdiction over websites

The Liège Court of Appeal has asked the ECJ to provide guidance in the law suit that is currently pending between Real Madrid and other sports clubs against and a number of European online bookmakers. The reference for a preliminary ruling concerns the question as of when a court can exercise jurisdiction over a website.

Introduction
Under the “Brussels I-Regulation” (Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), courts can exercise jurisdiction over tortuous acts in two manners:

• the court of the place where the tortuous act took place (locus acti) can exercise jurisdiction over all tort claims, regardless of whether the damage for which compensation is sought occurred in the State of that court or in another Member State of the European Community.
• The court of the place where the tortuous act caused a damage (locus damni) can exercise jurisdiction over tort claims seeking compensation only for the damage which occurred in the State of that court.

In summary, only one court (i.e. the court of the place of the tortuous act) can exercise jurisdiction over multi-territorial damage claims. On the contrary, various courts can each exercise jurisdiction over damage claims relating to their respective territories.

The problems posed by websites
European courts have traditionally had difficulties in applying the above principles to websites and potential harmful content available thereon. As a matter of fact, websites are by their very nature available throughout the world – which, at least in theory, means that a potentially harmful act causes damage, or is at least liable to cause damage in all countries.

In the past, some courts have therefore attempted to define under which conditions they are entitled to exercise jurisdiction over (the content of) a website. In particular in France, courts have required a “sufficient” or “substantial” link to the territory (e.g. through the language used on the website) before exercising jurisdiction.

The reference for a preliminary ruling by the Liège Court of Appeal

In a court case initiated by Real Madrid and a number of other football clubs and football players, the question is at stake whether the Liège Court of Appeals has at all any jurisdiction over a number of betting websites that, at least at first sight, do not seem to be targeted specifically to the Belgian consumer. The Liège Court has now made a reference for a preliminary ruling to the ECJ, and has carefully informed the ECJ of the specific facts of the case – probably in an attempt to receive specific guidance on the legal rules which it should apply. The reference is as follows:

“The questions relate to the interpretation to be given, in the specific field of the internet, to Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Where, as in the present case, the alleged harm is caused by websites and

(a) none of the companies being sued, which run the websites in question, has its company seat in Belgium,

(b) none of the websites in question is hosted in Belgium,

(c) none of the claimants is domiciled in Belgium,

(d) the betting websites are available to Belgian internet users, who can place their bets on those sites, to the same extent as they are available to internet users in other contracting States since they are '.com' websites which have the purpose of extending their market to the whole of Europe, and they do not have the extension '.be' which is specific to Belgium,

(e) those websites are available in a number of languages without the two most commonly used languages in Belgium always being among them,

(f) those websites offer, inter alia, bets on Belgian matches, in the same way as for foreign championships,

(g) the use of a particular technology or canvassing technique aimed at the Belgian public has not been proved,

(h) the number of bets placed by the Belgian public is entirely marginal in comparison with the total number of bets taken by those sites, since, according to the figures submitted by the bookmaking companies for 2005, which were not disputed, all the Belgian betting on football matches represents less than 0.25% of the bets taken on the websites 'bwin.com', 'willhill.com', 'betfair.com', 'ladbrokes.com', 'sportingbet', and 'miapuesta', while 'vcbet.com' refers to 40 Belgian bettors among all the bets placed with it,

1. should it be held that the alleged harm occurred or is liable to occur in Belgium, so that the Belgian courts have jurisdiction to hear the actions relating to that harm because the websites in question are directed, inter alia, at the Belgian public?

2. or should it be held that the alleged harm occurred or is liable to occur in Belgium, so that Belgian courts have jurisdiction to hear the actions relating to that harm, only if the existence of a sufficient, substantial or meaningful connection between the tortuous events pleaded and Belgian territory is established?

3. if so, what are the relevant criteria to be taken into consideration in assessing whether such a connecting factor exists? ”

Conclusion
It may take years before the ECJ will decide the Real Madrid case. However, due to the very precise manner in which the Liège Court has crafted its questions, the outcome of this case may provide detailed guidance and certainty to owners and operators of websites as to the conditions under which a national court will be able to exercise jurisdiction over those websites.

References: Reference for a preliminary ruling from the Cour d'Appel de Liège (Belgium) lodged on 29 December 2008 - Real Madrid Football Club, Zinedine Zidane, David Beckham, Raul Gonzalez Blanco, Ronaldo Luiz Nazario de Lima, Luis Filipe Madeira Caeiro, Futebol Club Do Porto S.A.D., Victor Baia, Ricardo Costa, Diego Ribas da Cunha, P.S.V. N.V., Imari BV, Juventus Football Club SPA v Sporting Exchange Ltd, William Hill Credit Limited, Victor Chandler (International) Ltd, BWIN International Ltd (Betandwin), Ladbrokes Betting and Gaming Ltd, Ladbroke Belgium S.A., Internet Opportunity Entertainment Ltd, Global Entertainment Ltd (Unibet) (Case C-584/08) (www.curia.eu)

For more information, contact: Christoph De Preter.

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Belgian decree on internet sales of medicines published

As we announced in a previous newsletter, the Belgian Council of Ministers announced in September 2008 that it had approved draft legislation which would inter alia lay down detailed rules on the internet sales of medicinal products.

These rules have now entered into force following the publication of the Royal Decree of 21 January 2009 “regarding instructions for pharmacists” in the Belgian Official Journal of 31 January 2009. Article 29 of this decree more specifically entered into force on 9 February 2009, and lays down a large number of conditions (13) under which online sales of “over-the-counter” (“OTC”) medicinal products are possible. The online sales of “prescription-only-medicines” (“POM”) remain prohibited. Article 29 in fine also explicitly states that the existing rules on advertising of medicinal products equally apply to the internet sites of pharmacies.

Click for the full text of the Decree (FR/D).