Email Legislation The Netherlands

Email Legislation: The Netherlands

On January 22, 2008, an amendment to the Dutch Telecommunications Act was introduced. Here is some background information and interpretation of the legislation.

Email Legislation in The Netherlands

Email legislation in The Netherlands says that spam includes any text or spoken messages transmitted via an electronic communication network that can be stored on a network or in the recipients peripheral devices until such time when the message is downloaded by the recipient (Article 11.1). Accordingly, all unsolicited advertisements transmitted to natural persons via e-mail, SMS, MMS and voicemail fall within the scope of the ban on spam.

Until 2008, the ban on spam only applied to messages sent to a natural person, and thus its application was limited to messages targeting consumers and small unincorporated entities. In view of the financial implications that spam has on the business sector, however, provisions were introduced to include messages sent to legal persons.

This was an amendment of the Telecommunications Act relating to the installation of an antenna register, the extension of the ban on sending unsolicited electronic communications as well as the regulation of various issues, Parliamentary Papers 2007-2008, 306661). Consequently, the sending of spam to legal persons became unlawful.

Excluding some exceptions, each recipient, whether a natural or a legal person, must consent to receiving the unsolicited commercial, non-commercial or charitable messages.

Email legislation in the Netherlands allows for Exceptions

Exceptions to the ban on spam sent to both natural and legal persons
A sender may use the electronic contact details (for example the e-mail address) of a legal or natural person to send unsolicited commercial, non-commercial, or charitable messages, if:

(i) the sender obtained the electronic contact details within the context of the sale of its products or services;

(ii) the message that is transmitted relates to its own similar products or services; and

(iii) at the time of obtaining the contact details, the recipient was offered the opportunity to oppose the use of its electronic contact details in a free-of-charge and easy manner.

If the recipient does not express opposition at the time of the sale, in each transmitted communication the option to raise an objection under the same conditions must be offered once again. Subsequently, if this objection is raised, the sender must take all measures to stop this processing (Section 41 subsection 2 of the Dutch Personal Data Protection Act).

Exceptions to the new ban on spam sent to legal persons

Two new exceptions apply to legal persons specifically.

First, no explicit prior consent is required when the recipient – being a legal person acting in the course of its business or profession – has made generally known that it wants to receive unsolicited marketing messages, has provided the address for receiving these messages, and has indicated the types of messages for which this address may be used. The provision of an electronic contact address is equated with consent.

Second, no prior consent is required if the subscriber is established in a country outside the European Economic Area (namely, the countries of the European Union, Iceland, Norway and Liechtenstein) and the sender has fulfilled the applicable provisions in that country with respect to the sending of unsolicited communications.

This information is sourced from Internet Business Law Services.

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