Consequences of unlawful e-communication
A good understanding of the legal rules described in the previous sections will allow a company to identify the potential unlawfulness of the contemplated online commercial practice. To properly decide whether the risk is worth taking, it is useful to examine what penalties might apply.
First, both the AISS and the AMPC provide for an administrative and criminal procedure in several stages, going in theory from a warning to a criminal fine. In practice, though, the criminal penalties are mostly a deterrent, as they imply public prosecution (and therefore, initially, a complaint). In the vast majority of cases, a company will accept a settlement proposal stemming from the authorities, as it allows the discontinuation of criminal proceedings. For the majority of good faith violations of the AMPC, the criminal fine will be between 1,500 and 60,000 EUR. As regards the AISS, good faith violations of rules on spam may give rise to criminal fines between 1,500 and 150,000 EUR; in the event of good faith lack of identifiability or transparency, the criminal fine is between 1,500 and 60,000 EUR.
In addition, any person (e.g. a consumer) may obtain a cease-and-desist order in relation to any commercial practice that is unfair towards consumers, even if criminal penalties can also apply, irrespective of whether it has already started or whether it is imminent. Moreover, other companies may obtain a cease-and-desist order in relation to any commercial practice that is ‘contrary to honest market practice’ [Note: Rough translation.
French text: "Est interdit, tout acte contraire aux pratiques honnêtes du marché par lequel une entreprise porte atteinte ou peut porter atteinte aux intérêts professionnels d’une ou de plusieurs autres entreprises."
Dutch text: "Verboden is elke met de eerlijke marktpraktijken strijdige daad waardoor een onderneming de beroepsbelangen van een of meer andere ondernemingen schaadt of kan schaden."] (within the meaning of Article 95 of the AMPC), a concept that covers any violation of any law whatsoever (e.g. the AMPC or the AISS) [Note: See Court of Appeal of Brussels, 21 April 2010, Entr. et dr. 2011, 2, p. 136.]. These cease-and-desist proceedings are started before the president of the commercial court, who will decide ‘as if in summary proceedings’ (comme en référé / zoals in kort geding), namely on the merits but in the framework of an accelerated procedure. The president of the commercial court may also provide for penalty fines for non-compliance with the judgment (astreinte / dwangsom) or order the publication of the judgment, which may harm the company’s e-reputation.
Finally, any person who incurs damage or loss as a result of a prohibition practice may claim damages on the basis of Article 1382 of the Belgian Civil Code, provided he or she can prove a ‘fault’ (i.e. the fact that the practice is prohibited by law), the damage or loss incurred and the causal link between the ‘fault’ and the damage or loss.