Dutch Senate approves new Telecom Act: net neutrality and restricted use of cookies codified
In a late night plenary debate on May 8th, the Senate of the Netherlands (Eerste Kamer) adopted several amendments to the Telecommunications Act in order to comply with EU Directives on IT and telecom law. The changes of law, proposed by the Dutch Parliament last June, lead to a new legal constellation unique in the European Union
As we reported earlier on this website, the majority of Dutch MPs is particularly concerned about maintaining a free and open Internet, the protection of privacy and consumer interests. As a result of these considerations, Parliamentary debates on the implementation of EU regulations on telecom were led into a direction that differs from the legal situation in surrounding countries. The Dutch Telecommunications Act now prescribes net neutrality in The Netherlands. Telco's and ISPs c.s. are no longer allowed to 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. The Netherlands is the only EU country and the second state in the world - after Chile -, to codify this principle, despite critical comments from the European Commission on this approach.
In addition, the new telecom law prescribes that Dutch privacy law applies to the use of all tracking cookies, because the legislator has introduced 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. This means data protection law is applicable and that these cookies may only be placed with the “unambiguous consent” of the consumer. Although the law acknowledges that requests for consent should not ruin user friendliness of websites, many stakeholders fear this is exactly what will happen. Furthermore, this legal presumption puts Internet companies that do not specifically ask for unambiguous consent for the use of tracking cookies in the position to prove that their cookies are not handling personal data. If they fail to do so, their current web practice is deemed unlawful by supervisory authorities and fines may be expected. Minister Verhagen of Economic Affairs has promised the Senate that supervisory authorities shall not enforce this part of the law (the legal presumption) until December 31 of this year, but still, this may put Dutch internet companies at a competitive disandvantage in comparison to companies from abroad.
The amended telecom legislation will enter into force upon publication in the official journal of the Dutch government. For more background information, read our previous reports on this matter on FutureOfCopyright.com:
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