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HOLLAND?S TELECOMMUNICATION ACT: THE FIGHT AGAINST SPAM

By IBLS Editor

In 2004, the Netherlands introduced legislation banning the sending of unsolicited electronic messages, commonly known as spam, to natural persons. In 2008, the ban was broadened to include unsolicited electronic messages sent to legal persons. This legislation, however, includes exceptions to the restrictions on spam. This article provides a summary of Holland''''s spam law.

The Dutch Lower House adopted the provisions of the European Directive on Privacy on electronic communications (2002/58/EC), in particular regarding the banning of spam, by enacting the Telecommunications Act (hereafter the Act) on November 04, 2003.  The Netherlands also integrated Article 12 of the European Directive 97/66/EC into chapter 11 of the Act.  Article 11.7, paragraph 1, provides that it is unlawful to transmit electronic messages for commercial, personal, or charitable purposes without first receiving the recipient"s consent (the "subscribing natural person").

In the Netherlands, spam includes any text or spoken messages transmitted via an electronic communication network that can be stored on a network or in the recipient''''s 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.

On January 22, 2008, an amendment to the Telecommunications Act was introduced. 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.

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.

Penalization of spammers
The Dutch Independent Post and Telecommunications Authority (Onafhankelijke en Post en Telecommunicatie Autoriteit (OPTA)) has been effective in fighting spam by imposing administrative penalties for violations of the Telecommunications Act. Pursuant to Article 15.4 of the Act, OPTA may impose a penalty not exceeding USD $450,000. In November 2006, the European Commission praised OPTA for effectively supervising the ban imposed on spam. The Commission also complimented OPTA for reducing spam originating in the Netherlands by a reported 85%.

Severity of the penalties imposed on spammers
The first penalties imposed by OPTA date back to December 23, 2004. In the "Groenendaal" decision, penalties totaling USD $42,500 were imposed on a spammer who had sent various unsolicited e-mail messages using a false identity. In February 2007, Dutch authorities levied a USD $97,000 fine on an unidentified man for sending unsolicited electronic messages to consumers to promote erection enhancement pills, pornographic Websites and sex products. This was the first largest fine imposed by the Holland''''s telecommunications regulator. OPTA said it considered several factors, including the sheer volume of the messages, which totaled 9 billion at a minimum estimate

Full post as published by IBLS Internet Law Blog on December 09, 2009 (boomark / email).