The Netherlands: Amended Telecommunications Act

The Upper House of the Dutch Parliament approved the amended Dutch Telecommunications Act on May 8, pursuant to an EU wide directive – the Cookie Amendment – on the topic.

The Act considerably tightens the rules concerning the use of cookies in order to protect the privacy of website users. Cookies are the tiny files that websites place on visitors’ computers which then enable the website, for example, to analyze which pages users visit on the site. The technology can also be used to allow commercial websites to target future advertising at users.

The amendment requires anybody who wants to apply cookies (or who uses device fingerprinting on user-devices such as computers, tablets or smartphones and digital television) to provide users with clear and unambiguous information about the purposes for which the cookies (or device fingerprinting) are placed. In addition, cookies may only be placed or accessed after obtaining the prior and explicit consent of the user.

Under Dutch law, the burden of proof has shifted from the Dutch Data Protection Authority to the party placing the tracking cookie to prove that the tracking cookie does NOT process personal data.

The Dutch Parliament is currently considering a further amendment which, if passed, will defer the entry into force of this shift in the burden of proof to December 31, 2012. We will keep you informed.

For a discussion on how the UK Data Authorities propose introducing the same EU amendment to the use of cookies, please visit this interesting post on the UK Law Gazette site for a discussion of the practical business implications of the new rules within the UK.