BELGIUM Law and Practice Contributed by: Benjamin Docquir and Margo Cornette, Osborne Clarke
months after they have given their consent to cookies; and • controllers must (i) keep information demon - strating how the consent mechanism (eg, the cookie banner) has been adapted over time and (ii) retain previous versions of the cookie policy, which must be dated and include a version number. 4.2 Personalised Advertising and Other Online Marketing Practices In Belgium, there is no specific legislative code that compiles advertising standards. Commer - cial advertising is governed by a regulatory framework comprising binding legal provisions and self-regulating, non-binding professional rules. The Belgian CEL outlines the core principles governing advertising practices in Belgium: • Article I.8.13° of the CEL defines advertis - ing as any communication with the direct or indirect aim of promoting the sale of products or services, irrespective of the place or means of communication used; • Article VI.17 of the CEL lists the conditions under which comparative advertising is legal; • Articles VI.93 to 103 of the CEL prohibit unfair commercial practices against consumers, including misleading and aggressive prac - tices; • Articles VI.104 to 109 of the CEL prohibit unfair market practices against other enter - prises, including misleading and aggressive practices; and • Book XII of the CEL contains rules concerning electronic marketing activities. In Belgium, advertising laws and regulations are primarily enforced by the Belgian courts. Spe -
cific regulatory authorities are responsible for certain aspects of advertising law, including: • the Belgian DPA for data protection breaches; • the Financial Services and Markets Authority (FSMA) for insurance product advertising; • the Federal Agency for Medicines and Health Products; and • the Federal Public Service (FPS) Economy via its mediation service. Additionally, the self-regulatory body known as the Jury for Ethical Advertising oversees ethical standards in advertising. The DPA has adopted specific guidelines regard - ing direct marketing. Furthermore, it is worth noting that the Digital Services Act introduces two new restrictions concerning targeted adver - tising on online platforms. First, it bans advertis - ing targeting minors based on profiling. Second, it bans targeted advertising based on profiling using special categories of personal data, such as sexual orientation or religious beliefs. 4.3 Employment Privacy Law The employment relationship between employee and employer constitutes a specific domain for the protection of personal data. There are two conflicting principles: • on the one hand, the authority of the employ - er over their employee and the resulting sub - ordination – an employer can therefore give instructions to their employees and monitor their performance; and • on the other hand, the right to privacy of the employees, which prohibits the employer from exercising authority over the personal aspects and activities of their employees.
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