Click on a table of contents entry to go directly to the desired title.
To return to the tables of contents use Ctrl + Home or Ctrl + End.
NOV. – DEC. 2000
1. COMPUTER CRIME ________________________________ 1
11. TELECOMMUNICATIONS __________________________ 11
EUROPE draft cybercrime convention ..................................................1
ARGENTINA new rules for telecom services ..................................... 11
BRAZIL new guidelines for personal communication system ............ 11
IRELAND new communications regulation ......................................... 12
ITALY universal service obligations .................................................... 12
MEXICO telecom regulations amendment ......................................... 12
UKRAINE telecom liberalisation ......................................................... 12
2. COMPETITION ____________________________________ 2
EU asserting jurisdiction over internet sites ..........................................2
MEXICO new rules on dominance ........................................................2
MEXICO dominance rules challenged ..................................................2
3. CONSUMER PROTECTION __________________________ 2
HONG KONG validity of standard form contracts .................................2
US account aggregation and privacy ....................................................3
4. DATA PROTECTION ________________________________ 3
BELGIUM surveillance of computer systems ........................................3
BRAZIL data protection rules ................................................................3
EU safeguarding transfer of personal data ...........................................4
12. WEB SITES ______________________________________ 12
13. EDITOR / EDITORIAL BOARD _______________________ 13
14. TABLE OF CONTENTS BY COUNTRY ________________ 14
– Back issues are available at www.mccarthy.ca –
5. DIGITAL SIGNATURES _____________________________ 4
LUXEMBOURG draft decree on electronic signatures .........................4
NORWAY electronic signatures bill .......................................................4
Click to subscribe
6. ELECTRONIC COMMERCE __________________________ 4
LUXEMBOURG MEDIAPORT
CANADA e-commerce regulations ........................................................4
EGYPT e-commerce trends ..................................................................5
EU e-commerce code of conduct ..........................................................5
GERMANY “Power-Shopping” declared illegal .....................................5
SWEDEN 1 year withdrawal right for e-consumers ..............................5
SWEDEN overview of e-mail advertisement rules ................................6
UK interception of communications ......................................................6
US electronic payment systems ............................................................6
7. INFORMATION SOCIETY POLICY _____________________ 6
EGYPT information and decision support center ..................................6
FINLAND information society services protection .................................7
LUXEMBOURG internet auto-regulation ...............................................7
NEW ZEALAND report on telecommunications inquiry ........................7
8. INTELLECTUAL PROPERTY _________________________ 7
ARGENTINA new domain names rules ................................................7
BELGIUM liberalization of the top level domain name ..........................7
CANADA new domain name rules ........................................................8
SOUTH AFRICA additional damages for copyright infringement..........8
SPAIN management of “.es” domain names .........................................8
9. MARKET ACCESS _________________________________ 8
AUSTRIA UMTS license auction ...........................................................8
CANADA DSL service providers obtain clec-like status........................9
CANADA PCS spectrum auction...........................................................9
EU local loop liberalisation ....................................................................9
IRELAND telecommunications licence procedures ...............................9
ITALY stream-telepiu’ ..........................................................................10
PORTUGAL bids for UMTS licences submitted ..................................10
PORTUGAL rules for carrier pre-selection ..........................................10
SPAIN internet interconnection rates approved ..................................10
SWITZERLAND regulator orders lower leased line prices ..................10
UK broadband fixed wireless access auction ......................................11
UK local loop unbundling.....................................................................11
10. NUMBERING _____________________________________ 11
SPAIN technical specifications of number portability amended ..........11
WHERE
NEW MEDIA CONVERGE
1. COMPUTER CRIME
EUROPE
DRAFT CYBERCRIME CONVENTION
Following the 8th plenary meeting of the Committee on Crime Problems
and the Committee of Experts on Crime in Cyber-Space, convened on 18th
to 20th September 2000, the Council of Europe on 2nd October 2000
released a Draft Convention on Cyber-Crime (the “Convention”). The
Convention will constitute the first ever international treaty addressing
criminal law and procedure regarding criminal behaviour directed at
computer systems, networks or data and other types of similar misuse.
The Convention sets forth provisions on :
 offences against the confidentiality integrity and availability of
computer data and systems concerning illegal access, illegal
interception, data interference, system interference and illegal devices;
 computer related offences concerning forgery and fraud;
 content related offences concerning child pornography;
 offences related to infringement of copyrights and related rights;
 ancillary liability and sanctions concerning attempting and aiding or
abetting, as well as corporate liability;
 procedural law concerning search and seizure of stored computer
data, production order, expedited preservation of data stored in a
computer system, expedited preservation and disclosure of traffic data,
interception of electronic communications, real time collection of traffic
data and the obligation of confidentiality;
1
ISSUE 5
NOVEMBER
– DECEMBER 2000
1
 jurisdiction, international co-operation and mutual assistance.
This draft has been subject to many criticism by a number of groups and is
being revised.
The current intent is to have draft adopted by the Council of Europe next
year and then ratified by member states over the next year or two.
For more information and the text of the Convention, see :
http://conventions.coe.int/treaty/EN/projets/cybercrime22.htm and
http://www.mediacentral.com/channels/inetfin/11_13_2000.reuff-storybcinternettreaty.html or contact : LE_GOUEFF@vocats.com
2. COMPETITION
able to charge one tariff, whilst tariffs on other controlled basic services can
only be differentiated by volume, distance and time.
On quality of service, TELMEX will have to prepare separate quality
indexes for each service rendered to end users and other concessionaires
of public telecommunications networks. When dealing with the latter,
TELMEX shall follow the “first come, first served” principle and allow long
distance carriers to share ports and interconnection links.
On information, TELMEX shall establish a technical database that
facilitates the interoperability of telecommunications networks, and give
access of such information to other concessionaires. TELMEX will likewise
have to make public the quality service indexes for users and other public
telecommunications networks concessionaires and certain information
regarding separate accounting.
For more information see : www.cft.gob.mx, or contact : aam@bstl.com.mx
EU
ASSERTING JURISDICTION OVER INTERNET SITES
MEXICO
Within the framework of a report issued by the European Commission's
Committee on Legal affairs and the internal market on 18th September
2000, the European Parliament adopted a proposal for a Council
Regulation on Jurisdiction and the recognition and enforcements of
judgements in civil and commercial matters (the “Regulation”).
The Regulation is designed to encourage voluntary initiatives on the part of
businesses aimed at establishing out-of-court dispute-settlement systems.
The Regulation would contribute to the establishment of a legal framework
seeking to promote the growth of electronic commerce in Europe and to
ensure the competitiveness of European companies at global level.
The Regulation does not deal with the issue of applicable law and the
provisions relating to jurisdiction of courts have no effect either on the
application or interpretation of the Rome Convention applicable to
contractual obligations.
Consequently, the Regulation is regarded as forming part of a package of
legislative and non-legislative measures concerning electronic commerce.
Because the Regulation constitutes part of this package of legislative and
non-legislative initiatives, its entry into force stands deferred until such time
as more regulations become ready for adoption.
For more information and the text of the proposal, see :
http://www2.europarl.eu.int/omk/OMEuroparl?L=EN&PROG=REPORT&S
ORT_ORDR=D&REFERENCE=A5-20000253&LEVEL=2&SAME_LEVEL=1 or contact : LE_GOUEFF@vocats.com
DOMINANCE RULES CHALLENGED
On 4th October 2000, Teléfonos de México (“TELMEX”) filed an “amparo”
(a summary proceeding which serves to guarantee constitutional rights)
against the dominance rules issued by the Mexican Federal
Telecommunications Commission (“COFETEL”) before Mexican Federal
Courts. According to TELMEX, the rules on tariffs set a floor that will raise
prices to the end user and will limit TELMEX’s ability to transfer the
benefits of any increase in productivity to its end users.
With respect to the limitations imposed by the rules on “essential services”,
TELMEX contends that by such a measure, COFETEL will no longer
incentive other carriers to invest in the expansion of their networks, the
creation of new jobs and on the attention of poor areas, thereby limiting the
development of the telecommunications industry in Mexico. This action is
seen by some sectors as a move towards delaying the de-regulation
process requested by the long distance carriers, Avantel and Alestra.
Presently, the District Court overseeing the “amparo” proceedings has
denied TELMEX the request for the temporary suspension of the “floor
tariffs” imposed by COFETEL under the rules. It is contended that the
decision further allowed COFETEL to issue a resolution reducing
interconnection tariffs between Telmex and Alestra similar to that
established with Avantel.
For more information see : www.cft.gob.mx, or contact : aam@bstl.com.mx
MEXICO
3. CONSUMER PROTECTION
NEW RULES ON DOMINANCE
On 12th September 2000, the Mexican Federal Telecommunications
Commission (“COFETEL”) published the long awaited dominance rules for
Teléfonos de México (“TELMEX”).
COFETEL’s resolution establishes a series of obligations for Telmex
regarding tariffs, quality of services and information. According to
COFETEL, the rules will favor competition among telecommunications
providers and contribute to the provision of services under better prices,
diversity and quality for the benefit of the end user. On tariffs, TELMEX will
be subject to tariff criteria based on costs; the intention being to prevent
strangulation in the margins of operation and hence, the viability of efficient
competition.
On “essential services” (such as, provision of ports, collocation, local
transit, billing and collection, emergency and operator services and
installation and lease of long distance links), TELMEX will only be able to
recover the costs incurred in the provision of said services. On local tariffs,
throughout the country and until 1st January 2003, TELMEX will only be
HONG KONG
VALIDITY OF STANDARD FORM CONTRACTS
The recent case, Hang Seng Bank & others v. Tsang Nga Lee & others
highlighted the potential impact of the Unconscionable Contracts
Ordinance on consumer contracts (the “Ordinance”). In this case the
defendants were credit card holders who had defaulted on their credit card
repayments and judgements had been entered against them.
The issue was whether the plaintiff Banks (the “Banks”) could enforce an
indemnity provision which provided that the credit cardholders pay all costs
and expenses incurred by the Bank in enforcing the agreement.
If a contract is held to be unconscionable, the court can refuse to enforce
the entire contract leaving no remedy for breach as against the consumer.
The court could also sever the unconscionable part from the contract or to
reverse or alter the unconscionable provisions.
2
ISSUE 5
NOVEMBER
– DECEMBER 2000
2
The word “unconscionable” is not defined in the Ordinance though Section
6 provides guidelines for the court to take into consideration when
analysing whether a specific term of the contract is unconscionable. The
court may look into the respective bargaining powers of the contracting
parties; whether the term was unnecessary; whether the consumer
understood the term; whether undue influence or unfair tactics was
exercised and whether the consumer could get alternative service
elsewhere.
The court decided the indemnity provision fell within the definition of
“unconscionable” after examining every element under Section 6 and
severed the indemnity provision. The court decided :
 the Banks were in a much stronger bargaining position and the
agreements were all in standard forms drafted by the Banks without
negotiation or consultation with the consumer;
 these standard contracts were never drawn to the consumer’s
attention and were not explained to the consumer in a language or in a
way they understand;
 consumers have no real choice to get alternative services since the
terms and conditions used by most banks are more or less the same.
Much of e-commerce is done on standard form contracts. Although
customers are offered a chance to scroll through the entire terms and
conditions of most “Clip-wrap Agreement” or “Dialogue Box’ agreements,
they are still left with a “take it or leave it” situation since they must click “I
agree” if they wish to move on. It would therefore be prudent for all
standard form contracts to be drafted in simple language to ensure the
customer understands the provisions. Onerous provisions should best be
avoided.
For more information contact : dae@jsm.com.hk
US
ACCOUNT AGGREGATION AND PRIVACY
The potential for the Internet to consolidate and manipulate information
has a significant new application in account aggregation, which is the
practice of gathering, at an account holder’s request, all their account
information to make the account information available to them at a single
website operated by the aggregator.
Data aggregation may be offered on a standalone basis or may be offered
in conjunction with other financial services, such as portfolio tracking and
bill payment or it may be provided as an additional service to augment the
online presence of an enterprise well established outside the virtual world,
such as a bricks and mortar financial institution.
Financial institutions initially resisted the idea of account aggregation. They
viewed the practice of account aggregation as unauthorised access to their
customers’ financial information. One financial institution even filed a
lawsuit against an aggregator but settled with the aggregator after the
aggregator agreed to meet certain conditions when providing account
aggregation services to its customers.
Financial institutions, however, are beginning to realize the potential of
data aggregation for current and potential customers and are moving to
gain ground from nonbanks that already offer account aggregation. The
privacy of consumer financial information is of significant concern to the
federal regulatory agencies. The Federal Trade Commission issued a final
privacy rule in May 2000 that found data aggregators to be subject to the
privacy provisions of the recently enacted Gramm-Leach-Bliley Act, which
directed federal agencies to promulgate regulations to govern the data
protection policies and practices of financial institutions.
In addition, the Board of Governors of the Federal Reserve System
requested public comment on, inter alia, whether account aggregators that
enable the transfer of funds should be considered to be financial
institutions and, therefore, be subject to the requirements of Regulation E,
which governs fund transfers. That proposal is still pending.
The FTC privacy rule is available at :
http://frwebgate4.access.gpo.gov/cgibin/waisgate.cgi?WAISdocID=590781
7113+2+1+0&WAISaction=retrieve
whilst the FRB proposal is available at :
http://frwebgate5.access.gpo.gov/cgibin/waisgate.cgi?WAISdocID=608294
509+0+1+0&WAISaction=retrieve or contact : Vartath@ffhsj.com
4. DATA PROTECTION
BELGIUM
SURVEILLANCE OF COMPUTER SYSTEMS
The Belgian Privacy Commission recently published a document with
respect to surveillance by an employer of computer systems used at the
work place thus rendering the Belgian Privacy Act of December 8, 1992
applicable to such instances. However, the Commission also recognises
that the application of the Privacy Act depends on factors, such as the
responsibility and the type of work performed by the employee, and the
work environment.
The Commission concludes that the rules constituting a balance between
the legitimate interests of employers and employees include :
 that employers should inform their employees of the e-mail and
Internet policy at the work place;
 that employees should be informed, amongst other things, of the
finality and the method of surveillance, as well as of the type of
collected data and the persons authorized to access such data;
 that surveillance should comply with the principles of proportionality
and necessity. In this respect, a general a priori surveillance and
registration of all telecommunications data, or the inspection of the
content of employees' e-mails, is considered to be disproportionate.
For more information, see the Privacy Commission's website at :
http://www.privacy.fgov.be or contact g.vandendriessche@dbmlaw.be
BRAZIL
DATA PROTECTION RULES
Increasing Internet penetration in Brazil has led to discussions on data
protection under Brazilian laws. Privacy remains a key concept. In line with
provisions of the Federal Constitution, the Consumer Protection Code (the
“Code”) laid down rules for the protection of personal data.
However, enforcement of these rules is based upon the existence of a
consumer relationship between the supplier (or the database owner) and
the consumer.
Pursuant to the Code, consumers :
 must be informed in advance that a company will create a database to
store their personal data;
 have the right to access any credit information on record, cards,
registers and data kept on file that involve them, as well as the
respective sources;
 must be informed in writing when a company intends to open or store
their personal data at its own discretion;
 have the right to be given access to data held on them, and demand
rectification of any inaccurate information;
 must approve all relations involving transfer of their data (from a
conservative legal standpoint).
3
ISSUE 5
NOVEMBER
– DECEMBER 2000
3
The Consumer Protection Code also establishes criminal and
administrative penalties to be borne by a supplier in the event of any
infraction of its guidelines. The administrative penalties will be applied by
the administrative authority in charge thereof, and may be applied
cumulatively even by a precautionary measure preceding or incidental to
the administrative proceedings.
Without prejudice to administrative and criminal penalties, the Brazilian
Civil Code allows a party whose rights to data protection are violated to
receive damages limited to the amount the party actually lost plus the
amount which at the time the loss occurred, the party could reasonably
expect to earn.
For further information, see : http://www.pinheironeto.com.br
or contact : rapdecunto@pinheironeto.com.br
EU
SAFEGUARDING TRANSFER OF PERSONAL DATA
The European Commission (the “EC”) with the assistance of a Working
Party on the protection of individuals is preparing a decision on the
protection of personal data pursuant to Article 26 (4) of Directive 95/46/EC.
The decision will serve as a safeguard to the international transfer of
personal data.
In particular, the decision will recognise a number of draft model clauses
addressing :




warranties and undertakings of the data exporter;
warranties and undertakings of the data importer
liability and jurisdiction;
disputes with data subjects or data protection authorities and
indemnities;
 term and termination of the contract;
 transfer of personal data for banking, credit, insurance, fund
management, tourism and transportation purposes and other
businesses using a network;
 transfers for marketing purposes;
 transfers for scientific research purposes.
The EC has invited comments to the draft model clauses, which are to be
sent to the following e-mail : MARKT-E1@cec.eu.int before 16th October
2000.
For more information and the text of draft model clauses, see :
http://europa.eu.int/comm/internal_market/en/media/dataprot/news/annexe
n.pdf or contact : LE_GOUEFF@vocats.com
5. DIGITAL SIGNATURES
LUXEMBOURG
DRAFT DECREE ON ELECTRONIC SIGNATURES
Luxembourg has issued lately a draft decree on electronic signatures
meant to supplement the Law on e-commerce of 14th August 2000.
Largely drawn from the EU directive 1999/93, the draft decree lays down
different requirements regarding the content of the qualified certificates;
the Certification Service Providers (CSPs) issuing qualified certificates;
and the secured signatures creation devices.
The ministry of economy is requesting comments on this draft decree. The
comments have to be sent the Ministry of economy.
For more information, see: www.etat.lu/ECO
or contact LE_GOUEFF@vocats.com
NORWAY
ELECTRONIC SIGNATURES BILL
29th
On
September 2000 a draft bill regarding electronic signatures was
presented to the Norwegian parliament. The proposal regulates the legal
framework for use of electronic signatures and services connected thereto.
The draft is based on a report from a survey requested by the Ministry of
Industry, involving all Norwegian ministries and government departments.
The report was based on disclosure of the legal hurdles for electronic
communication, both between private persons and towards official
governments in Norway. The report does, however, not discuss hurdles in
the Norwegian Civil Dispute Act such as the provisions stating that
agreements regarding arbitration and choice of legal venue must be
entered into (or later confirmed) in writing. The reason for this is that the
Norwegian Civil Dispute Act is under revision.
The draft is intended to implement the EU Directive 1999193/EC of the
European Parliament and of the Council of 13th December 1999 on a
Community framework for electronic signatures. The draft gives the legal
framework for the issue of certificates and the use of qualified signatures.
Section 6 of the draft states that if a hand-written signature is required to
obtain certain legal effects, and if it is possible to fulfil such action
electronically, a qualified electronic signature shall be deemed appropriate.
The draft sets out requirements for the certificates and signatures, and
prescribes that additional safety precautions may be required in connection
with communication with the public administration. The draft regulates
mainly certification-service-providers established in Norway. Secondary
regulations regarding the act are now being drafted and the act is expected
to enter into effect on 1st July 2001.
For more information, please see the Norwegian version at :
http://www.dep.no/nhd/norsk/publ/otprp/024001-050004/index-dok000-b-fa.html and www.tkgl.no or contact : haakon.opperud@tkgl.no or
heidi.aasheim@tkgl.no
6. ELECTRONIC COMMERCE
CANADA
E-COMMERCE REGULATIONS
Following rapidly on the heels of the Federal Government’s Personal
Information Protection and Electronic Documents Act, several Canadian
provinces have already or will soon adopt e-commerce related legislation.
For instance, the Province of Ontario recently passed the Electronic
Commerce Act, S.O., 2000, c. 17 (the “Ontario Act”).
In this respect, Ontario joins Saskatchewan and Manitoba, which have also
recently passed electronic commerce statutes. British Columbia has
introduced its own bill, while Quebec has a draft e-commerce bill for
discussion. The Ontario Act is enabling and voluntary (like its
Saskatchewan and Manitoba equivalents) insofar as no one is required to
use, provide or accept documents or information in electronic form without
their consent.
It establishes a series of rules for substituting electronic functional
equivalents in place of traditional contract requirements such as signatures
and the provision, retention and examination of documents in writing,
including originals. The electronic substitute for the written document must
be accessible to both parties to a transaction for subsequent reference and
be capable of being, although not actually, retained by the receiving party.
4
ISSUE 5
NOVEMBER
– DECEMBER 2000
4
Moreover, the Ontario Act requires “reliable assurance as to the integrity of
the information… from the time the document… was first created in its final
form.”
Signature requirements can be even stricter. While the Ontario Act
generally allows electronic signatures, it also contemplates regulations not
yet available, prescribing reliability and technological requirements. The
Act is intended to be technologically neutral. Importantly, the Ontario Act
specifies rules for establishing when and from what location contract
documents are deemed to be sent and received. It also paves the way for
use of electronic documents by governmental entities.
For more information see :
http://gateway.ontla.on.ca/library/bills/88371.htm
or contact : rpfohl@mccarthy.ca.
EGYPT
E-COMMERCE TRENDS
The Ministry of Communication & Information Technology announced that
a New Telecommunications Act would be in force in the near future
enabling new trends to take place on the international telecommunications
market. The said Act would encompass legislation protecting financial
deals and transactions that are made via the Internet and organise laws
related e-commerce. The Internet infrastructure in Egypt will be subject to
major modifications in the current year, by providing operating permits to 3
private sector companies operating in this field.
In addition, the capacity of the external connections of the Internet will be
increased to 155 Megabit/s, which will avoid all the jamming that occurs
currently on the Internet and shall provide extra capacities to the
companies and different enterprises that use the Internet, by enabling
them to be connected shortly to the world of e-commerce. The said
companies would be a step to link producers, distributors and consumers
through specialised networks in specific industries, which would be a great
opportunity for thousands of small producers in the Egyptian market to
benefit from such e-commerce Networks.
For more information, contact : angela@brainy1.ie-eg.com
EU
E-COMMERCE CODE OF CONDUCT
The Better Business Bureau system and BBBOnLine on 24th October 2000
announced the release of a Code of Online Business Practices (the
“Code”) designed to guide ethical business to customer conduct, as well as
boost customer trust and confidence in online commerce. The Code is
intended to provide desirable standards for e-commerce generally, and
obliges all participants of the BBBOnLine Reliability Program to comply
with its provisions.
The Code is based on the five principles of :
 truthful and accurate communications which forbids online advertisers
from deceptive or misleading practices in several respects;
 disclosure which obliges online merchants to disclose various types of
information to specified parties;
 information practices and security which generally obliges online
advertisers to adopt information practices that treat customers’
personal information with care;
 customer satisfaction which obliges online merchants to inter alia
ensure customer satisfaction and resolve customer complaints and
disputes expeditiously;
 protecting children, which imposes a duty of care on online advertisers
targeting children under the age of 13.
For more information and full text of the code, see :
http://www.bbbonline.org/code/CodeEnglish.pdf
or contact : LE_GOUEFF@vocats.com
GERMANY
“POWER-SHOPPING” DECLARED ILLEGAL
Two German courts have ruled independently that the e-commerce
concept of “Power-Shopping“ is illegal under German Competition Law.
The regional court of Cologne in the matter PrimusOnline and the regional
court of Hamburg in the matter LetsBuyIt.com came to the same ruling and
concluded that “Power-Shopping“ in particular infringes the German
Discounts Act. The idea behind “Power-Shopping“ as offered by
PrimusOnline and LetsBuyIt.com is to band together potential customers
desiring to buy the same product.
As a group, these customers usually create sufficient market power to
receive higher discounts for the desired products. A competitor of
LetsBuyIt.com and PrimusOnline, Cnited AG took the view that such an
offer infringes German Competition Law and took legal action.
Subsequently, the courts confirmed that the bundling of market demand
aiming at higher discounts is not in line with the German Discounts Act.
This Act, which dates back to 1933, prohibits the granting of discounts to
individual customers. Only if the customer pays the purchase price in cash
immediately upon purchasing, the supplier is entitled to grant a discount of
up to 3% of the purchase price. The original purpose of this rather dated
act was to create a certain level of price and consequent market
transparency.
Today, many legal writers in Germany claim that the entire act is outdated
and should be abolished. It might be the case that under the EU ecommerce directive of 8th June 2000 (Directive 2000/31/EG) in the near
future Germany has to moderate the severe restrictions of the Discounts
Act. LetsBuyIt.com and PrimusOnline have lodged appeals against the
decisions.
For more information see :
www.thestandard.com/article/display/0,1151,19382,00.html
or contact : Oliver.zander@bbmw.de
SWEDEN
1 YEAR WITHDRAWAL RIGHT FOR E-CONSUMERS
In June 2000 Sweden implemented the EC directive on the Protection of
Consumers in respect of Distance Contracts. The rules in the Swedish law
regulating, inter alia, consumers' rights of withdrawal were made
considerably more burdensome for e-business than the Directive
demanded in one particular aspect, namely the consumer's right to receive
information regarding the consumer's right of a 14 day withdrawal period
and proper contact-information needed to exercise this right. If this
information is not provided the consumer's right of withdrawal lasts for
1 year, a consequence many companies seem to be unaware of. In
practice, this means that even though most Swedish companies are aware
of the fact that consumers enjoy a two week withdrawal right, they do not
realise that in the event of not properly informing (pursuant to applicable
laws) the consumer of this right, the consumer has a 1 year withdrawal
right. Something which might come as an unpleasant surprise.
For more information see :
http://www.konsumentverket.se or contact : erik.bergenstrahle@lindahl.se
5
ISSUE 5
NOVEMBER
– DECEMBER 2000
5
SWEDEN
OVERVIEW OF E-MAIL ADVERTISEMENT RULES
In a report from the Swedish Consumer Agency on the opt-out rule in the
Swedish Marketing Act, which took effect in May 2000, the Agency
proposes that the rule be changed to opt-in, i.e. that consent has to be
given by the consumer before a company may send advertisement to that
customer by the use of e-mail. The currently effective opt-out rule means :
 that a consumer may, at any time, inform a company sending
advertisement via e-mail that the consumer no longer wants
advertisements ;
 that the company then is required to stop sending advertisement
immediately.
The opt-out rule was intended to create a reasonable balance between, on
the one hand, the market's need of effective means of advertising and on
the other hand the consumers' interest of being able to avoid unwanted
advertisement via e-mail. The Agency states in the report that the planned
national "opt-out register", where consumers may state that they do not
wish to receive advertisement via e-mail, is not a feasible solution.
The Agency also points out that many countries in the EC have adopted
the opt-in alternative, and that the ongoing discussions within the EC on
the question of the use of e-mail in a company's marketing actions most
probably will result in the adoption of common opt-in rules within the EC.
Presently, these common rules will, according to the Commission's
proposal for a directive, probably take effect in December 2001.
For more information see :
http://www.konsumentverket.se/press/001002.htm
or contact : erik.bergenstrahle@lindahl.se
UK
INTERCEPTION OF COMMUNICATIONS
On 24th October 2000, the Lawful Business Practice Regulations came into
force. These set out the circumstances in which a business may lawfully
monitor and record its employees' communications without their consent.
Other than under the Regulations, such interception will be unlawful under
the Regulation of Investigatory Power Act 2000.
The Regulations permit a business to monitor and record communications
without consent if carried out to establish the existences of facts relevant to
the business, to ascertain compliance with regulatory or self-regulatory
practices, to ascertain or demonstrate standards which are or ought to be
achieved by persons using the telecommunication system, to prevent or
detect crime, or to ensure the effective operation of the system.
For more information see : http://www.olswang.com
or contact : Cdl@olswang.co.uk
US
ELECTRONIC PAYMENT SYSTEMS
The Subcommittee on Domestic and International Monetary Policy of the
House Banking and Financial Services Committee held a hearing on 19th
September, 2000 in an effort to understand the circumstances surrounding
the slow pace at which electronic payment systems have evolved over the
last ten years and to examine the changes that might be necessary to
make these new payment technologies more readily available and
attractive to consumers and businesses.
The hearing also focused on future developments in technology and how
they might benefit consumers. Thomas P. Vartanian of Fried, Frank,
Harris, Shriver & Jacobson, a contributor to The L.I.N.K., testified as an
expert, along with representatives of major technology trade associations
and companies. In his testimony before the Subcommittee, Mr. Vartanian
identified several reasons for the glacial evolution of electronic payment
instruments and systems to include :




an existing, well-established money and payments system;
the development of standards;
the lack of compelling reasons to change;
lack of consumer confidence because of unfamiliarity with payment
instruments and systems, concerns over the potential loss of funds,
apprehension about the loss of privacy and the temptation to offer new
payment products before they are perfected;
 competition or controversy over control the point of customer entry;
 ill-suited or incompatible laws.
Mr. Vartanian noted that electronic payment instruments and systems
would eventually be accepted because of cost savings, a demand for an
efficient and instantaneous way to move value, the proliferation of
business-to-business electronic commerce and the increasing number of
individuals who are not wedded to traditional payment systems.
Mr. Vartanian further identified several legal areas that were designed to
deal with the more traditional payment mechanisms but impact electronic
payment systems and thus result in continuing uncertainty in their
application to the new payment vehicles or systems. These areas include :
jurisdictional considerations, state banking laws, state money transmitter
laws, deposit insurance considerations, regulation E requirements, state
escheat laws, and law enforcement considerations.
Mr. Vartanian’s complete testimony is available at :
http://www.ffhsj.com/bancmail/bmarts/roadblck.htm
or contact : Vartath@ffhsj.com
7. INFORMATION SOCIETY
POLICY
EGYPT
INFORMATION AND DECISION SUPPORT CENTER
The Information and Decision Support Center (IDSC) was established in
1992, by virtue of the Ministerial Decree no. 1 of 1992. This center is
considered the most important and most recent of its kind providing
information related to the State. In accordance with Article 2 of the said
Decree, the IDSC provides “establishment, management and development
of a data system and decision support”.
The main aim of this Center is :
 to prepare a national plan for the development of the data system in
accordance with the recent development in this field;
 to serve ministries and public administrative units and public sector
business companies and national institutions;
 information collection and its implementation in the decision making
support and information system, aiding the allocation of research and
studies and innovating the management systems through employment
information rules;
 establishing information centers in other governorates and
administrative units.
The Centre shall undertake all the steps required to reach its main object
and has the capacity to set a system for the assistance of ministries and
governorates regarding the necessary studies for decision support and
establishment of a base especially for the availability of information by
means of using modern database methods and sites on the Internet.
6
ISSUE 5
NOVEMBER
– DECEMBER 2000
6
The IDSC is considered a private service and is only accessible to the
public by means of either an annual subscription or the service rendered
will be charged upon cash payment.
For more information see : www.idsc.gov.eg
or contact : angela@brainy1.ie-eg.com
FINLAND
INFORMATION SOCIETY SERVICES PROTECTION
On 6th October 2000, the Finnish government issued a new bill aimed to
protect information society services, which are defined as protected
services provided through a network against payment.
The contemplated legislation would prohibit and criminalize the
possession, use, manufacture, import, sale, lease, distribution, marketing,
installation and maintenance of devices and software intended to decode
or to otherwise gain unauthorized access to information society services.
Examples of such devices and software include smart cards used for
watching pay TV and software developed for accessing Internet services.
The proposed legislation would replace the presently fragmented laws in
place in Finland on piracy devices and software by protecting information
society services from unauthorized access irrespective of whether they are
provided through the Internet, satellite, cable, digital TV or other types of
networks.
The proposed legislation implements the EU Directive 98/84/EC on the
Legal Protection of Services Based on, or Consisting of, Conditional
Access (also known as the Conditional Access Directive) and goes further
than the Directive as it, for example, would prohibit the manufacture and
development of decoding devices and software for ones’ own use.
The government bill is available in Finnish at :
http://www.edita.fi/esitys/etusivut/webhe.2000.0146.html
or contact : Craig.thompson@rhw.fi
LUXEMBOURG
INTERNET AUTO-REGULATION
As indicated in the last issue of L.I.N.K, the Government of Luxembourg
(Service des Médias, in association with the New Media Group of the
Centre de Recherche Public Henri Tudor) has arranged during the month
of October, a public consultation on Internet auto-regulation. The objective
of this public consultation was to reflect on how auto-regulation, can
contribute to establishing confidence in doing business on the Internet and
protecting certain public interests (notably the protection of minors).
For more information, the report of this consultation is available at :
www.autoregulation.lu/autoregualtion.nsf/index
or contact : LE_GOUEFF@vocats.com
supply of a service be made on certain terms if requested, but does not
include the use of pricing principles as with “designated services”.
A number of services that were identified as potential designated services
have been recommended to be placed in the lower category of specified
services. Presently the only recommendations for immediate classification
as a designated service are access to Telecom New Zealand’s fixed wire
network for interconnection and data tail access and access to Telecom
New Zealand’s fixed wire network for wholesaling.
The issue of designation of number administration and portability has been
deferred. The Electronic Communications Forum will be responsible for
preparing codes for both specified and designated services. These codes
are to be approved by the Commissioner and will be binding on all Forum
members. Other key recommendations include the capping of ownership of
radio spectrum and the requirement of on-sale of spectrum where that
spectrum is unused.
An Electronic Communications Bill has been prepared for submission to
Parliament incorporating the recommendations of the Inquiry, and
available at : http://www.teleinquiry.govt.nz
or contact : david.boswell@bellgully.co.nz
8. INTELLECTUAL PROPERTY
ARGENTINA
NEW DOMAIN NAMES RULES
Since 29th August 2000, Resolución 2226/2000 ("Resolución") from the
Foreign Affairs Ministry provided new Rules for the administration and
registration of domain names under the ccTLD "ar".
The Rules are applicable in procedures before Nic-Argentina, the local
unique agency authorized to administer the registration of domain names
under the ccTLD "ar".
The Rules establish :





the principle of first come first served;
the principle of free service subject to amendment in the future;
that there are some names reserved only to public entities;
that domain names shall not have amoral connotations;
that domain names registration shall not attempt against third party
rights;
 that Nic-Argentina will not be responsible for any conflicts arising from
the registration of domain names.
For more information see : http://www.nic.ar/reglas.htm
and http://www.mille.com.ar or contact : gonzaloz@mille.com.ar
BELGIUM
NEW ZEALAND
LIBERALIZATION OF THE TOP LEVEL DOMAIN NAME
REPORT ON TELECOMMUNICATIONS INQUIRY
The Final Report of the New Zealand Government’s Ministerial Inquiry into
Telecommunications has been released. The Report is substantially in the
form reported in the September – October edition of the L.I.N.K. Key
recommendations of the Report include : the introduction of an
independent electronic communications commissioner; the establishment
of an electronic communications industry forum; a formal and transparent
process for establishing whether or not a service should be regulated
(“specified” or “designated”) based on an “access objective”. One of the
key changes since the draft Report is the introduction of a second and
lower level of regulated services (“specified services”) that require the
The Belgian domain name authority (the “DNS BE”) recently announced
the liberalization of the rules for domain name registration under the toplevel country-code .be. The current rules have been criticised as being
rather severe. Under the new rules, the requirement that the applicant for a
domain name should have a link with the domain name applied for will be
abandoned. Furthermore, the prohibition of general domain names will
disappear.
On the other hand, the principle that .be domain names cannot be sold is
maintained. The DNS BE expects that, as a consequence of this
liberalisation, domain name disputes will increase and is proceeding
towards the implementation of an arbitration procedure.
7
ISSUE 5
NOVEMBER
– DECEMBER 2000
7
Also, the DNS BE will set up a new agent network for the registration of .be
domain names. The new rules for domain name registration under .be will
be implemented on December 11, 2000.
For more information, see :
http://www.dns.be or contact g.vandendriessche@dbmlaw.be
CANADA
NEW DOMAIN NAME RULES
Changes are underway that will significantly affect the administration of the
.ca Domain Name Registry and the rules regarding entitlement to .ca
domain names. As a result of the new Canadian “.ca” Registry rules, all
current registrants of .ca domain names, including provincial level domain
names (e.g. xyz.qc.ca) and municipal level domain names (e.g.
xyz.montreal.qc.ca), are currently required to take active steps to renew
their “.ca” domain name registrations with the new administrators of the .ca
Domain Name Registry, the Canadian Internet Registration Authority
(“CIRA”), prior to the “operational transfer date” on 1st November 2000.
In the past, “.ca” domain name registration rules were very complex,
discouraging many potential applicants from even applying. The new CIRA
rules will relax these restrictions. For instance, it had formerly been very
difficult for individuals to obtain national level domain names. Under the
new rules this will be possible. All new applicants will nonetheless have to
fulfil certain Canadian “presence” requirements such as establishing
Canadian residency or domicile.
One of the most significant changes under the new rules is that applicants
will be able to register a limitless number of names. Previously an
organisation could register only one. Also, under the old rules, a domain
name had to correspond to the name of the organisation that applied to
register it, making it difficult to register generic domain names.
Once the new rules are implemented, there may be an opportunity to
acquire valuable generic domain names on a first-come, first-served basis.
In the circumstances, any corporation considering either commencing or
expanding upon its “.ca” web presence should review these changes in
detail, in order to establish an appropriate “.ca” domain name acquisition
strategy.
For more information see :
www.cira.ca or contact : cmorgan@mccarthy.ca.
SOUTH AFRICA
ADDITIONAL DAMAGES
FOR COPYRIGHT INFRINGEMENT
Section 24 of the Copyright Act 98 of 1978 (“the Act”) deals with the
remedies available for infringement of copyright. The calculation of
damages is, generally speaking, based on the actual loss suffered by the
plaintiff or the amount of a reasonable royalty, which the plaintiff would
have received for licensing the copyright material for copyright
infringement. In addition, section 24(3) empowers the court to award
additional damages for copyright infringement in certain circumstances. A
precondition for additional damages is that the court must be satisfied that
effective relief would not otherwise be available to the plaintiff. An example
of the operation of this precondition is to be found in the case of Metro
Goldwyn-Mayer v Ackerman (1996). In that case, the defendants were
found in to be in possession of videocassettes containing unauthorised
copies of films (including trailers), in which the plaintiffs held the copyright.
The court was of the view that its order in respect of the full-length films,
i.e. its grant of an interdict as well as an award of damages, constituted
effective relief. It was thus not prepared to order additional damages.
Insofar as the trailers were concerned however, the court held that, since it
would be impossible to establish the damage suffered for this infringement
(because the evidence did not disclose what amount would be paid for
authorisation to use the trailers), it would not be possible to grant effective
relief. The court therefore ordered the payment of additional damages in
relation to the trailers. Earlier this year, the Minister of Trade and Industry
published for comment; inter alia, an amendment to Section 24(3) of the
Copyright Act.
The proposed amendment removes the precondition that the court must be
satisfied that effective relief would not otherwise be available to the plaintiff
and replaces this precondition with the requirement that “justice and a
sufficient deterrent effect against infringement of copyright will not have
been achieved unless the defendant is ordered to make suitable monetary
payment”. Nevertheless, the proposed amendment stipulates that any
award of additional damages shall not exceed R 10,000 for each article
relating to the infringement.
The proposed amendment can be viewed at : http://www.polity.org.za or
contact : peterg@wwb.co.za
SPAIN
MANAGEMENT OF “.ES” DOMAIN NAMES
The Act, which shall be approved together with the Spanish General
Budget Act for 2001, contains an amendment of the Telecommunications
Act whereby management of domain names under the country code
corresponding to Spain is entrusted to a new agency, dependent on the
Ministry of Science and Technology. This new agency shall be called
Red.es and will be financed with the fees obtained for the allocation and
maintenance of domain names (approx. Euros 108 for allocation and first
year maintenance and approx. Euros 72 for maintenance corresponding to
second and subsequent years).
Furthermore, a tender procedure is foreseen for allocation of domain
names that have a special economic interest or which are in high demand.
Red.es shall be responsible for, inter alia :




the management of domain names;
the development of information society;
the enhancement of competition in the sector;
advising the Government regarding any issue which may have an
impact on the said development of the information society;
 preventing fraud on the Internet;
 representing Spain in those international groups that co-ordinate the
management and registration of domain names, namely the ICANN.
For more information, see :
http://ying.sgc.mfom.es/secretaria/ve_11.0/sgcinfor/noticias/redes0710.htm
or contact : Aam@gomezacebo-pombo.com
9. MARKET ACCESS
AUSTRIA
UMTS LICENSE AUCTION
The Austrian UMTS auction started on 2nd November 2000 and lasted only
two days for each of the six bidders to secure a UMTS licence. The six
bidders were the four Austrian mobile telecommunications operators
Mobilkom, max.mobil, Connect Austria and tele.ring as well as the Spanish
incumbent Telefónica and Hutchison 3G from Hong Kong. In the first
phase, 12 frequency packages of 2 x 5 MHz were available, whereby each
bidder had to buy at least two packages in order to obtain a UMTS licence.
8
ISSUE 5
NOVEMBER
– DECEMBER 2000
8
Although it was expected that at least some of the bidders would try to
acquire a third package of frequency spectrum, at the end of the day all
bidders contented themselves with two packages of 2 X 5 MHz.
In phase 2 of the auction, five unpaired 5 MHz packages were issued.
Mobilkom and max.mobil each bought two of these packages (costing
about ATS 350 million each) Hutchison 3G secured the fifth package at the
same price. The auction closed on 3rd November 2000 and generated only
ATS 11.443 billion (approximately EUR 0.832 billion), which is much lower
income than expected by the Ministry of Finance. The licences are granted
for a period of twenty years ending 31st December 2020.
For more information on the course of the auction and bids in each round
see the regulatory authority's web site at : http://www.tkc.at
or contact : Stephan.polster@dbj.at
CANADA
DSL SERVICE PROVIDERS
OBTAIN CLEC-LIKE STATUS
The Canadian Radio-television and Telecommunications Commission
(“CRTC”) has allowed digital subscriber line services providers (“DSLSPs”)
to obtain a status akin to competitive local exchange carrier (“CLEC) in
Canada pursuant to a letter decision issued on 21st September 2000, with
justifying reasons to be issued in the future.
Specifically, DSLSPs may now lease unbundled loops and connecting
links on the same basis as CLECs, in the territories of the incumbent local
exchange carriers (“ILECs”). Furthermore, DSLSPs may lease from the
ILECs, all services related to co-location under the same rates, terms and
conditions of ILEC general tariffs and central office licensing agreements
that are currently available to CLECs.
The CRTC directed the ILECs to issue tariff pages and amend their central
office licensing agreements within 30 days of the date of the decision.
However, the CRTC made it clear that DSLSPs may not use these
services to provide switched local voice services, and directed all ILECs
and any CLECs providing such services to DSLSPs to ensure that
DSLSPs do not use them for that purpose.
For more information please see :
http://www.crtc.gc.ca/8740/eng/2000/b2-6475.htm
or contact : dhenke@mccarthy.ca.
CANADA
PCS SPECTRUM AUCTION
Industry Canada has finalised the dates related to the licensing process for
the auction of additional Personal Communications Services (“PCS”)
spectrum in the 2 GHz frequency range. This auction has been long
awaited by the wireless communications industry, and is aimed at
promoting the roll out of 3G PCS in Canada. The department will be
auctioning PCS blocks “C” and “E”, which are in the band 1850 - 1990
MHz. Four blocks of 10 MHz of spectrum will be licensed.
The four licences will be made available in each of 14 areas, which cover
all of Canada, resulting in a total of 56 new licences. The deadline for
receipt of applications is 14th November 2000, and a list of qualified bidders
will be released in late November 2000. A mock auction for qualified
bidders will be held in early January 2001.
The auction will begin on 15th January 2001, and is expected to last
between four to six weeks and will be conducted over the Internet. No
reserve prices have been set, but Industry Canada has established
minimum opening bids based on the population of the service area.
Although Industry Canada refuses to estimate potential revenue from the
auction, industry observers have estimated that between $2.5 billion and
$5 billion will be raised.
For more information see : http://strategis.ic.gc.ca/SSG/sf01714e.html1 or
contact : dhenke@mccarthy.ca.
EU
LOCAL LOOP LIBERALISATION
On 27th October 2000, the European Parliament approved a Draft
Regulation on unbundled access to the local loop (the “Regulation”). The
Regulation is intended to :
 intensify competition and stimulate technological innovation by setting
harmonised conditions for unbundled access to the local loop;
 apply to unbundled access to the local loops and related facilities of
fixed public telephone network (“FPTN”) operators designated by
national regulatory authorities as having significant market power;
 oblige notified operators to comply with the principle of nondiscrimination when using the FPTN to provide high speed access and
transmission services to third parties as provided to its own services or
to associated companies, in accordance with community provisions;
 uphold the rights of Member States to maintain or introduce measures
in conformity with Community law, that are more detailed with respect
to other types of access to local infrastructures.
For more information and text of the Regulation see :
http://europa.eu.int/comm/information_society/policy/telecom/localloop/pdf/i
nfregep_en.pdf or contact : LE_GOUEFF@vocats.com
IRELAND
TELECOMMUNICATIONS LICENCE PROCEDURES
The Irish telecommunications regulatory authority, the Office of the Director
of Telecommunications Regulation (“ODTR”) has launched a competition
for the award of a single national Terrestrial Trunked Radio (“TETRA”) Public Access Mobile Radio (“PAMR”) license to provide digital trunked
services in Ireland.
The term of the license will be fifteen years. The licensee will be entitled to
offer TETRA PAMR services to the public. TETRA is a mobile
communications service able to deliver a broad range of voice and data
services in public and private networks. The service is aimed at business
users and the Director believes that the introduction of TETRA services in
Ireland will create further choice and diversity for users of business mobile
communications.
The licence will be awarded by means of an open tender using a two-stage
evaluation process. The first stage will assess whether the applicants are
in compliance with the requirements of the tender document. The second
stage is the comparative selection process incorporating evaluation criteria,
which are outlined and weighted in the tender document. The result of the
competitive process is expected to be announced in January 2001.
The principal reason for an initial offering of only one licence is the
uncertainty regarding the long-term spectrum requirement for a national
TETRA - PAMR service. Therefore, a review will be conducted to
determine whether additional spectrum is required for TETRA - PAMR
services and how it should be apportioned. This review is not expected to
take place for at least two years after the granting of the licence. It is likely
that the review would involve public consultation. The outcome of this
review could result in the availability of further TETRA - PAMR licences.
For more information see : www.odtr.ie/docs/odtr/0076
or contact : Mccann-Fitzgerald@pophost.eunet.be
9
ISSUE 5
NOVEMBER
– DECEMBER 2000
9
ITALY
STREAM-TELEPIU’
On 25th October 2000, the Italian Communication Agency has decided that
it will suspend the licenses granted to two broadcasting companies, Tele+
if the latter do not agree on the adoption of a unique decoder within 10
days. The relevant companies have already been fined for 800 million liras
each, due to the fact that even though common technical standards were
established by the Agency on April, the operators involved did not comply
with the request.
For more information, and the text of the decision, see the
Communications Agency's web site, at : http://www.agcom.it/ or contact :
Cugia@mailandnews.com
PORTUGAL
BIDS FOR UMTS LICENCES SUBMITTED
Following the launch of the public tender for the award of four UMTS
licenses, the public opening of the bids took place at the beginning of
October. The seven bidders that have submitted proposals include TMN
(100% held by the Portuguese incumbent), Telecel (having Vodafone as
major shareholder), Optimus, Oniway, Leadcom (a consortium
incorporated, among others, by Vivendi and Finantel), Titancom and
Mobijazz (held by Jazztel and Sonera).
Even though a final decision has not been taken, the Report of the
Assessment Commission has already been made public. The final decision
will be taken until year-end by the Minister of Social Equipment, who is ex
expected to confirm the results of the Assessment Report. This being the
case, the holders of the existing three GSM licenses (TMN, Telecel and
Optimus) will be awarded licenses. The fourth license will be given to
Onyway, a company held by the power utility EDP and by Telenor. The
Assessment Commission has evaluate the bids according to subjective
criteria, the most important of which was the “contribution to the
development of the information society” (weighing 50%).
For more information see : http://www.icp.pt/umts/indexuk.html
or contact : mc@vieiradealmeida.pt
PORTUGAL
RULES FOR CARRIER PRE-SELECTION
Users of fixed telephone services in Lisbon and Oporto are now able to
route calls through different providers without having to dial an identifying
prefix. This final type of carrier pre-selection, by means of indirect access,
was established on 1st October 2000 for customers located in the a.m.
areas and will be available throughout the rest of the territory as from 15th
November 2000.
Presently, only long-distance, national and international calls are eligible
for pre-selection. Local and regional calls will be eligible as from 1st
January 2001, which is regarded as the conclusion of the liberalisation
process regarding this service.
For more information, see : http://www.icp.pt/press/2000/not247uk.html
or contact : mc@vieiradealmeida.pt
SPAIN
INTERNET INTERCONNECTION RATES APPROVED
On 7th July 2000, the Government approved several measures to enhance
competition in the telecommunications market.
Pursuant to one of these measures, Telefónica was obliged, as of 1 st
November 2000, to offer to its customers a new internet access tariff of
2,750 pesetas (approx. Euros 16.52). The offering of such internet access
tariff by Terra, the internet subsidiary of Telefónica, prior to the
aforementioned date, without the Reference Interconnection Offer having
being amended to guarantee effective competition, motivated the
imposition by the telecommunications regulator of interim measures to
Telefónica aimed at safeguarding such competition.
It is intended that the interim measures will apply to traffic addressed to
intelligent network numbers corresponding to those internet access
services notified by third operators and to traffic addressed to Internet
through the use of operator pre-selection codes, of interconnection rates
not exceeding, for each user of the said third operators (ISPs of the
relevant operator), the price offered by the Telefónica’s subsidiary Terra to
its final users, i.e. 2,750 pesetas.
The Delegated Commission for Economic Affairs finally approved, on 19th
October 2000, the new Internet interconnection tariffs to be 1,850 Pesetas
(local transit) or 2,300 Pesetas (simple transit). The tariffs are expected to
enter into force on 1st November 2000 and have already been criticised by
operators insofar as the said tariffs entail a squeeze on commercial
margins.
For more information, see :
http://www.cmt.es/cmt/document/decisiones/RE-00-07-27-11.pdf
http://www.cmt.es/cmt/document/decisiones/RE-00-09-28-03.pdf
http://www.cmt.es/cmt/document/decisiones/RE-00-10-05-22.pdf
or contact : Aam@gomezacebo-pombo.com
SWITZERLAND
REGULATOR ORDERS LOWER LEASED LINE PRICES
In litigation proceedings between a new entrant, Commcare
Communications AG (“Commcare”), and the former Swiss telecom
monopolist, Swisscom AG (“Swisscom”), the Swiss Federal
Communications Commission (“ComCom”), ordered on 3rd October 2000 a
massive reduction of some of Swisscom's leased line prices. The crux of
the matter was whether leased lines agreements are subject to the
interconnection regulations of the Swiss Telecommunications Act and its
implementing regulations.
Indeed, interconnection agreements and disputes are subject to a statutory
procedure, which is applied if the telecommunication services providers
cannot agree contractually on the corresponding conditions of use, in
particular prices. In this case the procedure is examined by the Swiss
Federal Office of Communications (“OfCom”) and ComCom lays down, the
interconnection conditions at OfCom’s request. Thus in the past
interconnection prices to be paid by new entrants to Swisscom have been
subject the procedure described above.
Although ComCom decided not to submit Swisscom's transmission media,
i.e. the copper and fibre-optic cables, to the interconnection regulations,
the application of Commcare regarding the leased lines has been
successful. ComCom has considered Swisscom to have a dominant
market position in the Swiss local loop market. Swisscom will now be
obliged to offer its leased lines to other telecommunication services
providers at cost-based prices.
With regard to market dominance, the ComCom decision is based on a
report from the Swiss Antitrust Authority, i.e. the Swiss Federal
Competition Commission (“Competition Commission”) issued in February
2000. In the report, the Competition Commission stated that Swisscom
dominates the market in the Swiss local loop as a whole.
In the absence of corresponding price information from Swisscom,
ComCom had to set the prices on the basis of comparative European
values (benchmarking).
10
ISSUE 5
NOVEMBER
– DECEMBER 2000
10
The price reductions, which have been decreed, vary according to capacity
and distance and amount to between 14 and 63 per cent. ComCom does
not judge the circumstances presented by Commcare to be a case of
unbundling of the local loop.
However, this question is the subject of another interconnection request,
which was submitted in July 2000 by another new entrant, diAx AG. The
author believes that the present decision shows a certain readiness of the
Swiss Regulator to facilitate competition by submitting leased lines to the
interconnection regime. Taking into consideration the European move
towards unbundling, it can be said that Switzerland will not walk very much
behind the other European countries.
For more information, see :
www.fedcomcom.ch or contact : m.bernasconi@baerkarrer.ch
UK
BROADBAND FIXED WIRELESS ACCESS AUCTION
Broadband Fixed Wireless Access Auction offers multimedia access via
radio links instead of telephone lines. The United Kingdom Government is
auctioning 3 licences in the 27.5 to 29.5 GHz waveband in each of the 14
English regions, plus Scotland, Wales and Northern Ireland – a total of 42
licences in all. A successful bidder will be able to hold just one licence in
each licence area, but will be able to hold a licence in any number of
licence areas.
Reserve prices range from £100,000 to £4 million. The bandwidth on offer
to customers is substantially up to 1555 megabits, though speeds of
around 37 megabits are likely to be more common. The auction start date
was provisionally set for 16th October 2000 but it has been delayed until
10th November 2000. The Radiocommunications division of the DTI is
spending more time on checking that bidders will not have any unfair
advantages or a conflict of interest in the auction.
For more information see : http://www.olswang.com
or contact : Cdl@olswang.co.uk
UK
LOCAL LOOP UNBUNDLING
The commercial and regulatory processes for implementing full unbundling
continue. Most recently Oftel has issued a consultation document with a
view to resolving a dispute that has arisen between operators as to how
available space in BT's exchange is to be utilised.
Meanwhile a request and complaint has been filed with Oftel by an industry
group of operators for Oftel to determine BT's terms and conditions of
service for local loop unbundling, which the operators consider
unreasonable and anti-competitive. Oftel has also recently published
proposals for shared access to the local loop.
For more information see : http://www.olswang.com
or contact : Cdl@olswang.co.uk
10. NUMBERING
SPAIN
TECHNICAL SPECIFICATIONS
OF NUMBER PORTABILITY AMENDED
Pursuant to a Resolution dated 6th June 2000, the Spanish Regulator (the
“CMT”) approved the technical specifications applicable to mobile number
portability.
The specifications referred to include
 network solutions for number conservation in case of change of public
mobile telephony networks operator;
 administrative procedures for the implementation of number portability
in cases of changes of mobile networks operator.
With regard to bullet point two above, there are a number of causes which
may be brought forward by the requested operator to refuse the granting of
number portability, one of them being “the existence of non settled
financing corresponding to a terminal with a simlock, always provided that
this blocking modality has been contractually accepted by the customer”.
The mobile operator, Retevisión Móvil S.A., appealed the aforementioned
resolution on 13th July 2000, requesting that the above cause for refusal
was removed. The appeal was accepted by the CMT on the grounds that
the above measure was nothing but a precautionary measure to avoid
prejudicial effects derived from a situation, which had not yet been verified.
Likewise, the CMT has reserved the application of this cause for refusal of
the granting of portability should the situation of the market require it in the
future.
For more information, see :
http://www.cmt.es/cmt/document/decisiones/RE-00-08-10-06.pdf
or contact : Aam@gomezacebo-pombo.com
11. TELECOMMUNICATIONS
ARGENTINA
NEW RULES FOR TELECOM SERVICES
On 3rd September 2000, the President issued Decree 764/2000 ("Decree")
on the new rules for the future deregulated telecommunication service
market.
The Decree provides procedures and pre-requisites necessary to apply for
telecommunication licenses, the rates to be paid by new providers using
networks owned by other providers, the basic universal service to be
rendered by licensees and the controlling authorities.
Being the commencement of deregulation effective from 9th November
2000, the Decree is of fundamental importance for the telecommunication's
market.
For more information and full text of Decree see :
http://infoleg.mecon.gov.ar/txtnorma/64222.htm
or contact : gonzaloz@mille.com.ar
BRAZIL
NEW GUIDELINES
FOR PERSONAL COMMUNICATION SYSTEM
On 21st September 2000 the Brazilian regulatory agency for
telecommunications - Agência Nacional de Telecomunicações (“ANATEL”)
approved Resolution No. 235/2000 thus providing guidelines for
implementing Personal Communications Systems (“PCS”) as the
successor of the Cellular Mobile Service (“SMC”) in Brazil.
According to the guidelines, the Brazilian territory was divided into three
regions, corresponding to the same regions established in Brazil’s General
Granting Plan for Switched Fixed Telephone Service. In each of these
regions, ANATEL will be granting three new authorizations for wireless
services, generally designated as Sub-bands C, D and E.
Under the current schedule, ANATEL expects to adopt additional
regulations for the PCS service before the end of 2000.
11
ISSUE 5
NOVEMBER
– DECEMBER 2000
11
Draft rules were released in September for comments and the auction is
initially set to take place in January 2001.
ANATEL has taken advantage of the PCS auctions to reshape the wireless
regulatory scenario in Brazil, prompting a strong reaction from the current
wireless operators, which will be given the choice to adapt to the new PCS
rules or to continue to abide by the mobile regulations that were issued
before the General Telecommunications Law was enacted in 1997.
For more information, see : http://www.anatel.gov.br
or contact : rapdecunto@pinheironeto.com.br
forth under the law and the vast amount of legal proceedings at the
national and international levels. The last time article 28 of the Mexican
Federal Constitution was amended was on 1995 when, in the light of
impending privatization of the Mexican satellite industry formerly operated
by the Mexican government through Telecomunicaciones de México,
passed from being considered a “strategic activity” to a “prioritary activity”.
For more information see : www.cft.gob.mx, or contact aam@bstl.com.mx
UKRAINE
TELECOM LIBERALISATION
IRELAND
NEW COMMUNICATIONS REGULATION
On 11th September 2000 the Irish Minister for Public Enterprise published
the Communications Regulation Bill, 2000. The aim of this Bill is to
improve competitiveness in the telecommunications market. The Bill takes
account of the recently published proposals for reform of the new
European regulatory framework.
The main proposals of the Communications Bill are to :
 replace the Director of Telecommunications Regulation with a multimember Commission for Communications Regulation (the
“Commission”);
 broaden the scope of the powers of the Commission in the exercise of
its functions in light of the emerging EU regulatory framework;
 to provide for effective powers of enforcement of the Commission’s
decisions.
For more information see : www.irlgov.ie/tec/publications
or contact : Mccann-Fitzgerald@pophost.eunet.be
ITALY
UNIVERSAL SERVICE OBLIGATIONS
The Italian Communications Agency, on September 7th 2000 issued a
Decree on Universal Service Obligation (USO) entitled Decree n. 8/00/CIR.
The Agency presumes that according to the competition conditions of the
Italian telecommunications market during 1999, there are the requirements
for the establishment of the fund.
Pursuant to the Decree, the following companies are subject to USO :
Telecom Italia, Infostrada, Omnitel and Telecom Italia Mobile. Each
operator will have to contribute to the funding of USO following this
proportion : 57,1% Telecom Italia; 1% Infostrada; 13,8% Omnitel Pronto
Italia and 28,1% Telecom Italia Mobile.
For more information, and the text of the decree, see the Communications
Agency's web site at : http://www.agcom.it/provv/d_8_00_CIR.htm
or contact : Cugia@mailandnews.com
MEXICO
TELECOM REGULATIONS AMENDMENT
The President’s transition team is preparing a project to amend article 28
of the Mexican Federal Constitution as well as the current Federal
Telecommunications Law. The purpose of such an initiative will be to
“clarify” the legal framework, grant broader autonomy to the Mexican
Federal Communications Commission (COFETEL), create objective
regulatory criteria and increase the penetration of telephony services. The
amendment to article 28 will seek to regulate the operation of dominant
entities in the telecommunications industry.
According to one of the President’s advisors, the telecommunications
sector in Mexico is limited due to the loss of credibility in the principles set
Telecommunications liberalization is well under way in the Ukraine as firstly
there has been approval of the Law of Ukraine “On Privatization
Peculiarities of Ukrtelecom” dated 13th June 2000 #1869-III by the
Verchovna Rada of Ukraine. This law envisages the extent of the
privatization as well as the entities that will participate in the privatization
process, etc. It is contended that this Law creates a new era in the
Ukrainian telecommunication market.
Secondly, there has been approval of the Law of Ukraine “On
Radiofrequency recourse of Ukraine”, dated 1st June 2000, #1770-III. This
Law determines legal, organizational and economic grounds of
management and usage of radiofrequency recourse of Ukraine, regulates
relationships and determines authorities of the bodies that carry out state
management in the field of usage radiofrequency recourse, and rights and
obligations of the users of radiofrequency recourse. This Law sets forth
obligatory monthly fees for actual usage of radiofrequency recourse.
Finally, the draft law “On Telecommunication” is under discussion in the
Verchovna Rada. This Draft shall meet the requirements of today’s rapidly
developing telecommunications market. It envisages the establishment of
an independent regulatory body – the National Commission on
Telecommunication Regulation, which will oversee functions such as
licensing, certification and control over telecommunication services.
For more information, see : www.alpha.rada.kiev.ua
or contact : btv@lawgris.carrier.kiev.ua
12. WEB SITES
GENERAL
The Cyberlaw Encyclopedia provides access to a wealth of material
pertaining to technology law.
http://www.gahtan.com/cyberlaw
SWEDISH WEB SITES
The Swedish Government : http://www.regeringen.se
The Swedish Parliament : http://www.riksdagen.se
Rixlex : http://www.riksdagen.se/debatt/index.asp Search for Swedish laws,
governmental proposals and official reports.
PRV : http://www.prv.se The Swedish Patent and registry office.
PTS : http://www.pts.se The National Post and Telecom Agency.
NIC-SE : http://www.nic-se.se The Swedish domain name registration
authority.
The Association of the Swedish IT and Telecom Industry :
http://www.sito.se The association represents companies developing,
manufacturing, marketing and servicing IT and telecom products.
Advertise in
12
ISSUE 5
NOVEMBER
– DECEMBER 2000
12
13. EDITOR / EDITORIAL BOARD
EDITOR : Stéphan LE GOUEFF, Luxembourg,
Country
Firm
Contact
E-mail
Site
Austria
Dorda, Brugger & Jordis
Stephan POLSTER
Stephan.polster@dbj.at
www.dbj.at
Belgium
De Bauw & Maeyaert
Herman DE BAUW
h.debauw@dbmlaw.be
Finland
Roschier-Holmberg & Waselius
Craig Thompson
Craig.thompson@rhw.fi
www.rhw.fi
Germany
BBLP - Beiten Burkhardt Mittl & Wegener
Oliver ZANDER
Oliver.zander@bbmw.de
www.bbmw.de
Greece
Kokkas & Kanellos Associates
Léonidas KANELLOS
Goal@eexi.gr
Ireland
McCann Fitzgerald
Damian COLLINS
MccannFitzgerald@pophost.eunet.be
Italy
Studio Legale Tonucci
Fabrizio CUGIA
Cugia@mailandnews.com
Luxembourg /
European Union
Le Goueff@vocats.com
Stéphan LE GOUEFF
Le_goueff@vocats.com
www.vocats.com
Norway
Thommessen Krefting Greve Lund
Arne RINGNES
Arne.ringnes@tkgl.no
www.tkgl.no
Portugal
Vieira De Almeida & Associados
Margarida COUTO
mc@vieiradealmeida.pt
Spain
Gomez Acebo & Pombo
Almudena ARPONde MENDIVIL Aam@gomezacebo-pombo.com
www.gomezacebo-pombo.com
Sweden
Advokatfirman Lindahl
Erik BERGENSTRÄHLE
erik.bergenstrahle@lindahl.se
www.lindahl.se
Switzerland
Bär & Karrer
Michael BERNASCONI
m.bernasconi@baerkarrer.ch
www.baerkarrer.ch
The Netherlands
Kennedy Van der Laan
Coen E. DRION
Coen.drion@kvdl.nl
www.kvdl.nl
Ukraine
Grischenko & Partners
Sergei A. VOITOVICH
btv@lawgris.carrier.kiev.ua
www.lawgris.kiev.ua
United Kingdom
Olswang
Colin LONG
Cdl@olswang.co.uk
http://www.olswang.co.uk
Montreal : Michel RACICOT
mracicot@mccarthy.ca
Toronto : Lorne SALZMAN
lsalzman@mccarthy.ca
Thomas P. VARTANIAN
Vartath@ffhsj.com
www.ffhsj.com
EUROPE
www.mccann-fitzgerald.ie
NORTH AMERICA
Canada
McCarthy Tétrault
USA
Fried Frank Harris Shriver & Jacobson
www.mccarthy.ca
CENTRAL & SOUTH AMERICA
Argentina
Estudio Millé
Gonzalo ZORRILLA
gonzaloz@mille.com.ar
http://www.reis.com.ar/estudiomille
Brazil
Pinheiro Neto – Advogados
Raphael de CUNTO
rapdecunto@pinheironeto.com.br
www.pinheironeto.com.br
Mexico
Barrera, Siqueiros y Torres Landa, S.C.
Andrés ACEDO
aam@bstl.com.mx
Venezuela
Hoet Pelaez Castillo & Duque
Fernando PELAEZ-PIER
fpelaez@hpcd-abogados.com
www.hpcd-abogados.com
India
Nishith Desai Associates
Vaibhav PARIKH
vaibhav@nishithdesai.com
www.nishithdesai.com
Malaysia
Zaid Ibrahim & Co.
Julian DING
julian.ding@my.zaidibrahim.com
China /Hong Kong
Johnson Stokes & Master
David ELLIS
dae@jsm.com.hk
New Zealand
Bell Gully
David G. BOSWELL
david.boswell@bellgully.co.nz
http://www.bellgully.co.nz
www.ie-eg.com/kamellaw
ASIA PACIFIC
AFRICA & MIDDLE EAST
Egypt
Kamel Law Office
Mohamed KAMEL
angela@brainy1.ie-eg.com
Israël
Soroker – Agmon Law Offices
Jonathan AGMON
mail@ip-law.co.il
Nigeria
Paul Usoro & co
Paul USORO
paul@paulusoro.com
www.paulusoro.com
South Africa
Webber Wentzel Bowens
Peter GREALY
peterg@wwb.co.za
www.wwb.co.za
UAE
Afridi & Angell
Antony WATSON
aaadh@emirates.net.ae
www.afridi.com
13
ISSUE 5
NOVEMBER
– DECEMBER 2000
13
14. TABLE OF CONTENTS BY COUNTRY
Country
ARGENTINA
AUSTRIA
BELGIUM
BRAZIL
Title
Category
New domain names rules
INTELLECTUAL PROPERTY
New rules for telecommunications services
TELECOMMUNICATIONS
UMTS license auction
MARKET ACCESS
Liberalization of the top level domain name
INTELLECTUAL PROPERTY
Surveillance of computer systems
DATA PROTECTION
Data protection rules
DATA PROTECTION
New guidelines for personal communication system
DSL service providers obtain clec-like status
CANADA
MARKET ACCESS
E-commerce regulations
ELECTRONIC COMMERCE
New domain name rules
INTELLECTUAL PROPERTY
PCS spectrum auction
MARKET ACCESS
Asserting jurisdiction over internet sites
EU
COMPETITION
Draft cybercrime convention
COMPUTER CRIME
E-commerce code of conduct
ELECTRONIC COMMERCE
Local loop liberalisation
FINLAND
GERMANY
EGYPT
HONG KONG
IRELAND
ITALY
LUXEMBOURG
MEXICO
MARKET ACCESS
Safeguarding transfer of personal data
DATA PROTECTION
Information society services protection
INFORMATION SOCIETY POLICY
“Power-Shopping” declared illegal
ELECTRONIC COMMERCE
E-commerce trends
ELECTRONIC COMMERCE
Information and decision support center
INFORMATION SOCIETY POLICY
Validity of standard form contracts
CONSUMER PROTECTION
New communications regulation
TELECOMMUNICATIONS
Telecommunications licence procedures
MARKET ACCESS
Stream-telepiu’
MARKET ACCESS
Universal service obligations
TELECOMMUNICATIONS
Draft decree on electronic signatures
DIGITAL SIGNATURES
Internet auto-regulation
INFORMATION SOCIETY POLICY
Dominance rules challenged
COMPETITION
New rules on dominance
COMPETITION
Telecom regulations amendment
NEW ZEALAND
TELECOMMUNICATIONS
TELECOMMUNICATIONS
Report on telecommunications inquiry
INFORMATION SOCIETY POLICY
14
ISSUE 5
NOVEMBER
– DECEMBER 2000
14
Country
Title
NORWAY
Category
Electronic signatures bill
PORTUGAL
SOUTH AFRICA
DIGITAL SIGNATURES
Bids for UMTS licences submitted
MARKET ACCESS
Rules for carrier pre-selection
MARKET ACCESS
Additional damages for copyright infringement
INTELLECTUAL PROPERTY
Internet interconnection rates approved
SPAIN
MARKET ACCESS
Management of “.es” domain names
INTELLECTUAL PROPERTY
Technical specifications of number portability amended
SWITZERLAND
SWEDEN
NUMBERING
Regulator orders lower leased line prices
MARKET ACCESS
1 year withdrawal right for e-consumers
ELECTRONIC COMMERCE
Overview of e-mail advertisement rules
ELECTRONIC COMMERCE
Swedish web sites
UKRAINE
WEB SITES
Telecom liberalisation
TELECOMMUNICATIONS
Broadband fixed wireless access auction
UK
MARKET ACCESS
Interception of communications
ELECTRONIC COMMERCE
Local loop unbundling
US
MARKET ACCESS
Account aggregation and privacy
CONSUMER PROTECTION
Electronic payment systems
ELECTRONIC COMMERCE
Contact “the l.i.n.k.” at :
© opyright:
editor@the-link.lu
, Luxembourg
This newsletter may be reproduced and distributed in full, with no edits or changes, free of charge
15
ISSUE 5
NOVEMBER
– DECEMBER 2000
15