New regulations e-marketing and marketing by telephone
The sending of unsolicited messages for commercial,
non-commercial or charitable purposes by fax or, for instance, by
e-mail, MMS or SMS, to natural persons and legal persons is only
allowed if the sender can prove that prior to the sending of the
message concerned he had obtained the recipient's consent
(opt-in). Since 2004 this rule applies if the recipient is a
natural person. As a result of the extension of the ban on SPAM to
legal persons, it will become more difficult to practice
e-marketing.
Furthermore, a Do Not Call Registry will be
established, which will also impose some restraints on
marketing-by-telephone businesses.
This article will discuss both developments.
Extension of the ban om SPAM
The 'ban on SPAM'
The ban on sending electronic messages for commercial,
non-commercial or charitable purposes without the prior consent of
the recipient has been laid down in Section 11.7 (1) of the Dutch
Telecommunications Act (Telecommunicatiewet
('Tw')). This ban is also called the 'ban on
SPAM'. Electronic messages means: any text, spoken, sound
or visual messages which are transmitted via an electronic
communication network and which can be stored on the network or the
peripheral devices of the recipient until it is uploaded by the
recipient (Section 11.1 under i of the Tw).
The ban on SPAM applies, for instance, to the sending of commercial
messages via automatic calling systems, faxes, e-mail, SMS or
MMS.
The legislative way that led to the extension of the ban on
SPAM
At first, the opt-in regime solely applied to
subscribers being natural persons (Section 11.8 of the TW). The TW
defines a subscriber as a natural person or a legal person being a
party to an agreement with a provider of public electronic
communication services for the provision of such services.
The Minister of Economic Affairs already announced in December
2004 that the ban on SPAM would be extended to subscribers being
legal persons. The reason is that not only citizens are hindered in
their private lives by unsolicited electronic communications, but
the business sector is swamped with SPAM every day too. The
self-regulation established by the business sector in the form of a
code of conduct has proved not to be very successful. As a result
of the many exceptions to the opt-in regime, the starting point of
the opt-in had eroded. There was also a lack of enforcement
instruments.
Extension of the ban on SPAM
There is some confusion about the exact date of entry
into force of the extension of the ban on SPAM for legal persons.
According to the website of the Ministry of Economic Affairs the
extension of the ban on SPAM will already apply as of 1 October.
However, the official Decree establishing the date of the entry
into force in the Dutch Bulletin of Acts and Decrees mentions two
different dates: the amended Section 11.8, concerning the lifting
of the restriction of the ban on SPAM to subscribers being natural
persons, will enter into force on 1 October, but the amendment of
Section 11.7 regarding the ban on SPAM in the event of legal
persons will enter into effect on 1 July 2007. For this reason
we advise our clients, for reasons of safety, to depart from
the entry into force of the ban on SPAM as of 1 July 2009. For
the sake of reassurance it can be observed in this respect that the
chances of enforcement of the ban on SPAM for legal persons before
1 October are very small, since the Dutch Independent Post and
Telecommunications Authority (Onafhankelijke en Post en
Telecommunicatie Autoriteit ("OPTA")) has announced
on its website that it will not start enforcing until 1 October
2009.
As regards the substance, the amendment of the ban of SPAM
entails the following: the obligation to obtain the prior consent
(opt-in) of a subscriber no longer only applies in the event that
this subscriber is a natural person, but also in the event that
messages are sent to a subscriber being a legal person. In view of
the entry into force of the ban, it is important to approach these
legal persons before 1 July 2009, so that the prior consent can be
obtained in time.
In order to still allow the business sector some space after 1
July 2009 when sending electronic messages (e-mail, SMS,
MMS) to legal persons and natural persons as part of their
professional and business practice, a certain relaxation of the
opt-in regime has been stipulated in the new subsection 2 of
Section 11.7 of the Tw. Under certain circumstances the sender may
assume that consent has been given, for instance if the legal
person has made it generally known that it wants to receive
unsolicited marketing messages, has provided the address where it
wants to receive these messages, and, if so desired, has indicated
for what kind of messages this electronic contact address may be
used. The making available of such a contact address will be put on
a par with the giving of prior consent for receiving unsolicited
commercial electronic messages. Mind you, according to the Dutch
Data Protection Authority and OPTA, the mere handing over of a
business card can not be put on a par by the potential
recipient with the giving of consent.
It is still the question to what extent the statements of
individual employees of a company may be attributed to the business
that must be regarded as a subscriber.
A sender is furthermore not obliged to request the prior consent
either in the event that the electronic message is sent to a
subscriber in a country outside the European Economic Area (in
other words: countries outside the European Union, Iceland, Norway
and Liechtenstein) and the sender has fulfilled all provisions
applicable in that country with respect to the sending of
unsolicited communications.
To conclude, the already existing exception of the former second
subsection of Section 11.7 (currently the new third subsection)
continues to apply. The sender may use the electronic contact
details (for instance the e-mail address) of both a natural and a
legal person in order to send unsolicited commercial,
non-commercial or charitable messages, on the condition that:
(i) the sender has 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
has been offered the opportunity to object to the use of
his electronic contact details (in a free-of-charge and easy
manner). If the recipient does not make use of this possibility to
object at the time of the sale, in each transmitted communication
the option to register an objection under the same conditions must
be offered once again. In the event that this objection is
registered, the sender must take all steps required to stop the
processing.
The do not call registry
In addition to an extension of the ban on SPAM a national Do
Not Call Registry will be established as of 1 October 2009.
Pursuant to the new fifth subsection of Section 11.7 of the Tw, the
use of means other than automatic calling systems without human
interference, faxes or electronic messages, for instance
telephones, to transmit unsolicited communications for
commercial, non-commercial or charitable purposes is permitted
unless the - subscriber - recipient has made it known that he does
not wish to receive these unsolicited communications. Mind you,
this rule only applies to subscribers who are natural persons and
not to legal persons. If a subscriber has opposed the receipt of
unsolicited communications, his contact details will be entered
into the Do Not Call Registry.
In each transmitted communication, therefore during the call,
the subscriber must be notified that this registry exists. The
subscriber must also be given the opportunity to oppose any further
use of his electronic contact details free of charge, and
the opportunity to be immediately entered into in the Do Not
Call Registry.
The purpose of the registry is to protect a subscriber against
unsolicited communications for which he has indicated that he does
not want to receive them. It is now prohibited to contact
subscribers who are registered in the Do Not Call Registry
by telephone.
Telemarketing companies can therefore only use files from which
the details which have been included in the Do Not Call
Registry have been removed or at least blocked. These
companies are therefore obliged to continually check the files they
use and to clear these files.
The telemarketing prohibition does not apply in the event that
the contact details have been obtained in the context of the sale
of a product or service and these details are used to transmit
unsolicited communications with respect to own similar products
or services or donations to a non-commercial or charitable
organization.
Pursuant to the new subsection 6 of Section 11.7 of the Tw the
Do Not Call Registry will be kept by an administrator
appointed by the Minister. Meanwhile, the Minister has appointed
the foundation Stichting Infofilter as administrator.
Thus, this foundation will also act as the controller within the
meaning of the Dutch Personal Data Protection Act for the data in
the Do Not Call Registry.
Possible sanctions
OPTA is charged with the enforcement of the ban on SPAM. Depending
on the seriousness and the duration of the violation, a violation
of the ban on SPAM may lead to a maximum penalty of €450,000.