OPTA Is Not Obliged to Investigate on Basis of A Single Complaint about Spam
In the Netherlands, Section 11.7 of the Telecommunications Act
prohibits the sending of spam messages to natural persons. As of 1
July 2009 this prohibition will be extended to a general ban on
spam, which means that legal persons too may file a complaint if
they receive spam messages. The Telecommunications Act has charged
OPTA with the enforcement of the ban on spam. OPTA may send
spammers a warning with regard to violations of the ban on spam,
but Section 15.1 of the Telecommunications Act also gives OPTA the
power to impose penalties on violators.
The public can file complaints with OPTA with regard to
receiving spam. The criteria for filing such a complaint are that
the sender must be located in the Netherlands, and that the message
received must have a commercial, non-commercial or charitable
nature. Since OPTA monthly receives a large number of complaints
with regard to spamming (see the website of OPTA especially devised
for that purpose, www.spamklacht.nl), one may wonder whether OPTA
is obliged, on account of its role, to take up all these
complaints. The Court of Rotterdam has recently ruled that it is
not.
The Ruling
On 22 January 2009 the Court of Rotterdam rendered a judgment
against OPTA's rejection of a request from a private person to
take action against a possible violation of the ban on spam. The
Court dismissed this request as unfounded. The full ruling has not
yet been published, but a summary can be found on the website of
OPTA.
The claimant in these proceedings had filed a complaint with
OPTA on 29 April 2007 about an e-mail message he had received. The
message at issue had a non-commercial nature and had been sent by a
political party. The claimant had not given permission for
receiving this e-mail, so that the message was within the ban on
spam. OPTA has been conducting an enforcement policy for the
combating of spam for several years, and has been receiving large
numbers of complaints. It was established in the proceedings that
OPTA had only received one complaint about the message from the
political party. In OPTA's opinion, one single complaint
received is not sufficient to take action against such a message,
and for that reason OPTA denied the request for enforcement on 4
September 2007. The claimant filed objections to this decision,
which OPTA dismissed as unfounded. Subsequently, the claimant took
the case to the Court of Rotterdam.
On the basis of the dispute that was submitted, the Court ruled
that the right of OPTA to choose to enforce the law against senders
of spam messages is a power, but not an obligation. The Court
further held that OPTA's enforcement policy against spam is in
accordance with the Special Privacy Directive (2002/58/EC) and the
Telecommunications Act, and the Court further considered this
policy not unreasonable. With regard to this specific case, the
Court held that OPTA's denial of the request for enforcement
was right, since OPTA had received only one single complaint, which
moreover concerned only one e-mail message received. The Court also
remarked that the fact that the sender is a political party does
not mean that there is a special circumstance on account of which
OPTA should have deviated from its enforcement policy.
It is still possible to bring an appeal against this ruling
before the Trade and Industry Appeals Tribunal. The ruling of the
Court of Rotterdam takes into account the discretionary power of a
public body, and therefore offers little hope for an appeal. Even
less hope in this case, since only one complaint was filed, and
this complaint is moreover directed against one single spam
message.