Data protection and cybersecurity laws in Netherlands

Data protection

1. Local data protection laws and scope

  • General Data Protection Regulation ("GDPR") (Algemene Verordening Gegevensbescherming)
  • The Dutch GDPR Implementation Act ("DGIA") (Uitvoeringswet Algemene verordening gegevensbescherming)
  • The DGIA implements the GDPR. The DGIA includes, for example, exceptions for the processing of special categories of personal data and data relating to criminal law matters and exceptions to the data subject’s rights and controller’s obligations. 
  • Dutch Telecommunications Act ("TA"), (Telecommunicatiewet)

The TA implements EU ePrivacy Directive 2002/58/EC and also includes provisions on unsolicited electronic communications and the use of cookies (and similar techniques). The TA also imposes several requirements on providers of public electronic communications networks and publicly available electronic communication services with regard to the processing of personal data.

2. Data protection authority

3. Anticipated changes to local laws

The Collective Act Data Protection (Verzamelwet Gegevensbescherming) amends the DGIA and other laws related to data protection (such as article 3:17 of the Financial Supervision Act) on various topics and is currently in the preparatory phase.

4. Sanctions & non-compliance

Administrative sanctions:

Financial penalties are the primary sanction against the controller and the processor, thus, against the company.

  • Up to EUR 10m or up to 2% of the undertaking’s total annual worldwide turnover in the preceding financial year; or
  • Up to EUR 20m or up to 4% of the undertaking’s total annual worldwide turnover in the preceding financial year. 
Criminal sanctions:

N/A

Others:
  • Order for incremental penalty payments;
  • Processing prohibition;
  • Reprimand;
  • Warning.  

Please find an overview of the fines and sanctions imposed by the Dutch Data Protection Authority here.

5. Registration / notification / authorisation

Formally appointed data protection officers must be registered with the Dutch Data Protection Authority (here).

6. Main obligations and processing requirements

There are no substantive derogations from the GDPR.

7. Data subject rights

There are no substantive derogations from the GDPR.

8. Processing by third parties

There are no substantive derogations from the GDPR.

9. Transfers out of country

There are no substantive derogations from the GDPR

10. Data Protection Officer

There are no substantive derogations from the GDPR.

The DGIA provides that the data protection officer must maintain the secrecy of any information that becomes known to him or her pursuant to a complaint by or request from a data subject, unless the data subject agrees to disclosure.

11. Security

There are no substantive derogations from the GDPR

12. Breach notification

The data breach notification obligation vis-à-vis data subjects does not apply to financial companies as referred to in the Financial Supervision Act (Wet op het Financieel Toezicht).

13. Direct marketing

In summary, as referred in article 11.7 of the Telecommunications Act:

  • By fax, e-mail and SMS: prior consent required (opt-in).
  • By means of telephone or other means: allowed unless someone opted out. Also, be aware of the existence of the "do not call me register" (Bel-me-niet Register) and the "mail filter" (Postfilter).
  • There are a number of specific exceptions to the requirement of consent:
    • If the user is a legal entity or a natural person acting in the exercise of its/his/her profession or business, no prior consent shall be required for the transmission by means of electronic mail of unsolicited communications for commercial, idealistic, or charitable purposes:
      • if the sender when transmitting the communication makes use of electronic contact details intended and provided by the user and said contact details have been used in accordance with the purposes attached to said contact details by the user; or
      • if the user is based outside the European Economic Area and the rules regarding the sending of unsolicited communications in the country concerned have been followed.
    • A party that has acquired electronic contact details for electronic messages in the context of the sale of its product or service may use said data to transmit communications for commercial, idealistic, or charitable purposes with regard to its own similar products or services if, when the contact details were acquired, the customer was clearly and explicitly given the opportunity to object, free of charge and in a simple manner, to the use of said electronic contact details and, if the customer did not avail himself of said opportunity, he is offered the opportunity during every instance of communication, to object, on the same conditions, to the further use of his electronic contact data.   

14. Cookies and adtech

As referred in article 11.7a of the Telecommunications Act:

  • Using cookies or similar techniques is only allowed if the user has been provided with clear and complete information in accordance with the GDPR and has given consent for the action concerned. However, this rule does not apply if:
    • the cookie is used for the sole purpose of carrying out communications over an electronic communications network;
    • the cookie is strictly necessary to provide an information society service requested by the user; or
    • the cookie is used to obtain information about the quality or effectiveness of a service provided, on the condition that this has only limited impact on the user's privacy.

15. Risk scale

Moderate

Cybersecurity

1. Local cybersecurity laws and scope

The Network and Information Systems Security Act ("NISSA", Wet beveiliging netwerk- en informatiesystemen), implementing NIS Directive (EU) 2016/1148.

2. Anticipated changes to local laws

There are no anticipated changes to local laws.

3. Application 

The NISSA applies to:

  • "digital service providers" (within the meaning of the NIS Directive) with a main establishment in the Netherlands, excluding small and micro enterprises; and
  • designated "vital operators" in the Netherlands, divided into:
    • "operators of essential services" (within the meaning of the NIS Directive); and
    • operators of other services of which the continuity is of vital importance for Dutch society.

The designation of vital operators can be found in the Network and Information Systems Security Decree ("NISSD", Besluit beveiliging netwerk- en informatiesystemen).

Digital service providers not established in the EU must appoint a representative that acts on its behalf. The representative may be addressed with regard to the NISSA based obligations.

4. Authority

The competent authority for digital service providers is the Minister of Economic Affairs and Climate (Minister van Economische Zaken en Klimaat). The Radiocommunications Agency Netherlands (Agentschap Telecom, part of the Ministry of Economic Affairs and Climate) acts as supervisor.

With regard to energy and digital infrastructure, the competent authority is the Minister of Economic Affairs and Climate. The Radiocommunications Agency Netherlands acts as supervisor.

With regard to (i) transport and (ii) the supply and distribution of drinking water, the competent authority is the Minister of Infrastructure and Water Management (Minister van Infrastructuur en Waterstaat). The Human Environment and Transport Inspectorate (Inspectie Leefomgeving en Transport) acts as supervisor.

For banking and financial infrastructure, the competent and supervising authority is the Dutch Central Bank (De Nederlandsche Bank).

For the health sector, the competent authority is the Minister for Healthcare. The Health and Youth Care Inspectorate (Inspectie Gezondheidszorg en Jeugd) acts as supervisor.

5. Key obligations 

NISSA 1 Some specific financial institutions designated by the Dutch Central Bank are exempted from part of the obligations referred to in this section. :

  • Digital service providers and operators of essential services must implement appropriate and proportionate technical and organisational measures to manage the risks posed to the security of their network and information systems and the possible impacts of security incidents. They must also implement appropriate measures to prevent and mitigate the impact of such security incidents;
  • Designated vital operators must notify the National Cyber Security Centre ("NCSC", part of the Ministry of Security and Justice), acting as Computer Security Incident Response Team "CSIRT") of:
    • (i) any incident with a significant impact on the continuity of the essential services,
    • (ii) any security incident in their network and information systems which may have serious adverse effects on the continuity of their service;
  • If an operator of an essential service uses a digital service provider, an incident at such digital service provider must be notified by such operator to the competent authority for the sector of such operator if the incident has a significant impact on the continuity of the service.
  • Digital service providers must notify the Minister of Economic Affairs and Climate (as competent CSIRT) and Radiocommunications Agency Netherlands (as competent authority) of any incident that may have serious adverse effects on the provision of their services.

6. Sanctions & non-compliance 

Administrative sanctions:
  • The competent authorities have several kinds of general investigative powers.
  • Fines can be imposed with a maximum of EUR 1m or EUR 5m depending on the violation.

NISSA based supervision and enforcement only applies to operators of essential services and digital service providers (e.g. not included are operators of other services of which the continuity is of vital importance for Dutch society).

7. Is there a national computer emergency response team (CERT) or computer security incident response team (CSIRT)? 

Yes. NCSC is the CSIRT for vital operators. NCSC is also the Point of Contact responsible for coordinating issues related to the security of network and information systems and cross-border cooperation at the EU level.

The Dutch Ministry of Economic Affairs is the CSIRT for digital services.

8. National cybersecurity incident management structure

During a cyber crisis, the National Manual on Decision-making in Crisis Situation is applied (hyperlink included below). NCSC plays a key role in such cyber crises.

The National Digital Crisis Plan (hyperlink included below) is a cyber-specific elaboration of the National Manual on Decision-making in Crisis Situation.

9. Other cybersecurity initiatives 

N/A

Portrait of Erik Jonkman
Erik Jonkman
Advocaat
Amsterdam
Portrait of Sanne Knopper
Sanne Knopper
Advocaat
Amsterdam