Mustafa Akgul
2009-12-15 15:39:50 UTC
*Holland's Telecommunication Act: the Fight Against Spam
<http://feedblitz.com/r.asp?l=43000016&f=1246&u=11298&c=0>*
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.
http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2289
<http://www.feedblitz.com/t2.asp?/1246/11298/0/http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2289>
<http://feedblitz.com/r.asp?l=43000016&f=1246&u=11298&c=0>*
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.
http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2289
<http://www.feedblitz.com/t2.asp?/1246/11298/0/http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2289>