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Article Netherlands: Amended Telecommunications Act Prescribes Net Neutrality, Stricter Cookie Provisions

(May 15, 2012) On May 8, 2012, the Senate (Eerste Kamer) of the States-General (Staten-Generaal, the Dutch Parliament), unanimously adopted amendments to the Telecommunications Act in order to conform to European Union Directive 2009/136/EC. (Peter van der Veen, Dutch Senate Approves New Telecom Act: Net Neutrality and Restricted Use of Cookies Codified, FUTURE OF COPYRIGHT (May 9, 2012).) The Directive amended several EU laws on information technology and telecommunications. (Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on Universal Service and Users' Rights Relating to Electronic Communications Networks and Services, Directive 2002/58/EC Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector and Regulation (EC) No 2006/2004 on Cooperation Between National Authorities Responsible for the Enforcement of Consumer Protection Laws [hereinafter Directive 2009/136/EC], OFFICIAL JOURNAL OF THE EUROPEAN UNION L 337/11 (Dec. 18, 2009).) According to the Directive, Member States were to adopt and publish by May 25, 2011, “the laws, regulations and administrative provisions necessary to comply with this Directive.” (Directive 2009/136/EC, art. 4(1) ¶ 1.)

Reportedly, the amendments made to the Telecommunications Act “lead to a new legal constellation unique in the European Union,” and because of Dutch legislators' particular concern over “maintaining a free and open Internet, the protection of privacy and consumer interests, … Parliamentary debates on the implementation of EU regulations on telecom were led into a direction that differs from the legal situation in surrounding countries.” (van der Veen, supra.)

Net Neutrality

One key amendment is the adoption of provisions on net neutrality, making the Netherlands the first country in Europe and the second in the world (after Chile) to “guarantee free access to internet under the law.” (Net Neutrality Laid Down in Dutch Law, DUTCH DAILY NEWS (May 9, 2012).) This means that telecommunication companies and Internet Service Providers (ISPs) may no longer “block, delay or obstruct in any way, services and other internet and/or telecom traffic, unless this is necessary for reasons of congestion management, security, continuity of the network, et cetera.” (van der Veen, supra.) The net neutrality law will not only guarantee that access to the Internet is neutral, but also prohibit filtering of the Internet. (Loek Essers, Dutch Net Neutrality to Become Reality After Senate Approves Law, PC WORLD (May 9, 2012).)

The aim of the net neutrality provisions is “to prevent telecom providers from blocking or throttling services such as Skype or WhatsApp, an Internet SMS [Short Message Service],” and “from making prices for their Internet services dependent on the services used by the subscriber.” While traffic may be throttled in order to prevent congestion or protect the network (provided that the ISPs “treat traffic of the same type equally”), it may not be blocked except when necessary “to protect the integrity and security of the network or users' terminals.” (Essers, supra.)

There is one significant exception to this provision against throttling, however; a religious exception clause, whereby an Internet user may request that an ISP filter the user's Internet traffic based on ideological grounds, “by blocking services and applications.” (Id.; Eerste Kamer der Staten-Generaal, Session 2010-2011, 32 549 Amendment of the Telecommunications Act to Implement the Revised Telecommunications Directives [in Dutch], art. 7.4a(1)(e) (last visited May 9, 2012).) Reportedly, many Dutch politicians fear the exception may pave the way for Internet censorship, despite its intended effect of allowing filtering at a customers' request. (Essers, supra.)

The religious exception clause was mistakenly inserted in the proposed law in 2011 by an accidental vote in favor of it by the Dutch Labor Party. To repair the error, a new amendment aimed at nullifying the clause will be added to an unrelated law on traffic regulation, Senator Han Noten of the Labor Party was quoted as explaining. However, the Christian Union party wants a religious filtering exception to be retained in the Act, and it filed a motion in the Senate on May 8, to be submitted to a vote on May 15, requesting that the government “explore the possibilities for religious and ideological Internet filtering by providers on explicit request of the subscriber.” (Id.)


The amended Act also makes Dutch privacy law, notably the Personal Data Protection Act, applicable to the use of all tracking cookies, through the introduction of “the legal presumption that the use (placing and reading the file on the device of an end user) of a tracking cookie constitutes processing of personal data.” Thus, the “unambiguous consent” of the consumer is required for cookies to be placed. (van der Veen, supra.)

In addition, if an Internet company does not specifically request unambiguous consent to use a tracking cookie, it must prove that its cookies are not handling personal data, or face its activities being deemed unlawful by supervisory authorities and made subject to fines. The legal presumption part of the Act is not to be enforced, at the Senate's insistence, until December 31, 2012, but there remains concern that the measure may place Dutch Internet companies at a competitive disadvantage with foreign companies. (Id.) The provision requiring that consumers be informed of and give their consent to the use of cookies on their computers was tightened by the Dutch House of Representatives' amendment of the Act. (Net Neutrality Laid Down in Dutch Law, supra.)

Other Significant Changes Noted

Other key changes in the Law include stipulations on:

    • the obligation of service providers to inform customers as quickly as possible if customer details come into the public domain;
    • the provision of image and text mediation service to help disabled users communicate more easily with businesses and government bodies;
    • the implementation of a new frequency policy for wireless communication, “with flexibility as its key,” to speed up the formulation of and simplify procedures and rules and to abolish superfluous ones, facilitating quick adaptation to changing circumstances and technological developments in the telecommunications market;
    • anti-wiretapping, to restrict providers from using network management techniques such as Deep Packet Inspection (DPI); and
    • the prevention of ISPs from disconnecting customers except on grounds of failure to pay or fraud or in response to a court order. (Id.; Essers, supra.)

The amended Act will come into force after being signed by the Queen and officially published in the Official Gazette of the Kingdom of the Netherlands (Staatsblad van het Koninkrijk der Nederlanden). (Essers, supra.)

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