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Netherlands: Proposed Legislation to Enhance Protection of Computer Data

(Aug. 17, 2010) On July 28, 2010, Dutch Minister of Justice Hirsch Ballin sent for comment to various agencies a legislative proposal to provide citizens with greater protection against abuse of computer data. The proposed changes would amend the Criminal Code and the Code of Criminal Procedure. The draft document is also available for public comment until September 30, 2010; highlights of the document were set forth in a press release. (Press Release, Dutch Ministry of Justice, Hirsch Ballin Strengthens the Approach to Computer Crime (July 28, 2010),
; Wetsvoorstel versterking bestrijding computercriminaliteit [Law proposal reinforcing control of computer crime] [in Dutch] (click Concept regeling for the text & Ontwerp regeling for elucidation of the plan) (July 28, 2010),

Under the proposal, persons with legitimate access to a given computer who take non-public data from it without authorization would be subject to a term of up to one year of imprisonment. This would make the punishment that already applies to offenders who are employees of telecommunications networks or services applicable more broadly. Thus, any employee of a company or institution who deliberately copied, for example, a famous Dutch citizen's personal data in order to sell the information to a third party would be criminally liable for such actions were the proposal to become law. (Press Release, supra.)

The proposal would also make punishable the receipt of stolen computer data. Under the current law, persons who digitally pass on stolen information to third parties are not punishable, because from a legal perspective the data is not considered to be “property” (since it still exists in the computer), making prosecution for receiving stolen goods impossible. Under the draft proposal, the owner would not have to have actually lost the computer data in order to subsequently prosecute a third party for receiving stolen goods; nevertheless, in order for that party to be convicted of the crime, “it remains important that the defendant knew or could have suspected that the relevant information came from a crime.” (Id.)

The prohibition against monitoring, tapping, or recording confidential conversations would be broadened by the legislative proposal. Current law prohibits surreptitious recording of conversations in a residence or closed-off area if the person recording the conversation is not a participant in it. The proposal calls for this prohibition to apply as well “to perpetrators who participate in the conversation and have recorded it without permission, which brings Dutch legislation in line with existing statutory provisions in France and Germany.” (Id.) Punishment upon conviction of such an offense would be up to one year of imprisonment. Thus, in Ballin's view, anyone who, as a participant in a confidential conversation, made surreptitious recordings and then placed them on the Internet with the aim of harming people would deserve punishment. The recording of conversations in a public area in a visible manner remains non-punishable. (Id.)

The proposal also gives the Public Prosecutor independent authorization to have information that might incur punishment removed from the Internet. Many Internet providers reportedly already cooperate in voluntarily in a “notice and take down” code of conduct, whereby they “remove data if it is abundantly clear that the information is wrongful or punishable.” (Id.) In cases where the code seems insufficient, the proposal gives the Public Prosecutor the authority to order that the disputed data be made inaccessible on-line, e.g., if the data must be blocked quickly to prevent an even worse situation from developing, and also to impose an order for incremental penalty payments. (Id.)