From 1 October 2009, Dutch laws for telephone marketing and commercial emails get tighter, with a new “Do not call” list and emails to businesses mostly moving from “opt out” to “opt in”. Berry van Lammeren of Ploum Lodder Princen, Rotterdam reports.
Topic: Telemarketing
Who: Dutch legislators
Where: Netherlands
When: August 2009
Law stated as at: 1 October 2009
What happened:
In November 2008 an amendment to the Telecommunications Act was passed. This becomes effective on 1 October 2009 and includes – among other things – changes with respect to the undertaking of telemarketing and the sending of unsolicited marketing emails to businesses.
Telemarketing
The amendment Act provides for a legal register to reduce consumer irritations as a result of unsolicited telemarketing; the Do-not-call-me register. The Dutch Foundation InfoFilter will manage this register. Private persons (including, but not limited to one-man businesses and firms), who do not want to receive unsolicited calls for commercial, ideal or charitable purposes can put their numbers on this register. Such a registration will apply for an unlimited period of time, unless the private person makes known that his contact details can be removed from the register.
As per 1 October 2009 it is prohibited to undertake telemarketing with private persons who have put themselves on this register. It is the responsibility of the telemarketer to bring his telephone records into conformity with the register – and to keep them updated.
Important Do-not-call-me scheme exemption
There is, however, an important exemption. If a caller has received a private person's telephone number in connection with the sale of his products and/or services or in connection with a gift to an idealistic or charitable organisation, the caller is allowed to undertake telemarketing with regard to similar products and/or services of its own, via that telephone number. This exemption is – for the greater part – similar to the exemption that (already) exists with regard to the sending of unsolicited direct marketing to private persons by fax, email, SMS, MMS or automatic call systems.
During every telemarketing communication with a private person the caller is obliged to actively point out the existence of the register and provide him with the opportunity to make an objection to any further use of his telephone number by the caller for unsolicited telemarketing. The caller is also obliged to actively provide the private person with the opportunity to be admitted to the Do-not-call-me register immediately.
Unsolicited marketing email to businesses
The amendment Act also introduces a prohibition on sending unsolicited communications to businesses (a legal person such as a limited company or a private person operating in the performance of his profession or business) for commercial, idealistic or charitable purposes by fax, email, SMS, MMS or automatic call system without the prior consent (opt in) of that business. But certain situations are exempt from this new "opt-in" rule. These are:
- the communicator makes use of an electronic address of the business that is disclosed by the enterprise for the purpose of receiving unsolicited marketing emails and other digital communications (e.g. marketinginfo@companyname.nl) and the use of the electronic address by the communicator is in compliance with the specific purposes for which the electronic address is provided; or
- the business is not situated in the European Economic Area and the communicator complies with the requirements for the sending of unsolicited communications of the country in which the enterprise is situated.
Why this matters:
Telemarketing
Until this amendment Act there were no regulations that prohibited the calling of private persons for marketing purposes. Although such kind of register (Infofilter; a self-regulating register of the business sector) already existed, callers were not legally obliged to consult it. As from 1 October 2009 telemarketers will no longer be able to call private persons who have registered themselves in the Do-not-call-me register.
It is the responsibility of the caller/marketer to bring his telephone records into conformity with the register – and to keep them updated. To this end, the Foundation Infofilter provides multiple services to bring marketers' records into conformity with the register and to keep them updated. ’Into conformity’ means, that telephone records have to be updated at least every four weeks.
Unsolicited marketing emails to businesses
As stated above, as from 1 October 2009 – in principle – prior consent will need to be obtained before sending to businesses unsolicited marketing emails and other types of communication as specified above.
Enforcement
Non-compliance with the Telecommunication Act (and, therefore, the above-mentioned regulations) can result in enforcement measures by OPTA (the Netherlands telecom regulatory authorities). In this respect the OPTA is entitled to the use of administrative enforcement and the imposing of (default) fines.
As a result of the great number of (minor) violations of the Telecommunications Act the OPTA primarily focuses on serious offences. For example: recently the OPTA imposed a fine of EUR 250.000 on a spammer – after first having given him an administrative warning – for sending great numbers of spam ( at least 21 million in less than five years) without the prior consent of the receiving private persons.
Applicability
To avoid any misunderstanding: the Telecommunications Act is a Dutch law that is applicable in the Netherlands for private and legal persons that send digital marketing communications or undertake telemarketing from the Netherlands. However, if an organisation in the Netherlands instructs a foreign organisation to undertake such activity, the organisation in the Netherlands will be considered to be the communicator, in which case the Telecommunications Act will apply.
Berry van Lammeren
Lawyer
Ploum Lodder Princen, Rotterdam
bvlammeren@plp.nl
