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Dutch new law prohibits ‘B2B spam’


As from 1 October 2009 important changes have been made in the Dutch spam legislation. Two changes that are worth mentioning are:
- the expansion of the scope of the spam-prohibition; and
- the introduction of the so called "do-not-call-me" register.

Ban on B2B spam
The scope of the original prohibition of unsolicited commercial communication was limited to commercial messages (addressed) to individual persons. Therefore business-to-business com-munication was not subjected by this law. This resulted into a requirement for the Dutch senders of unsolicited emails to acquire an "opt in" from the private individuals whom they wished to address, while for the same communication to companies the sender could rely on the "soft opt out" regime.

As from 1 October 2009 the scope of the here above mentioned prohibition was expanded to also B2B communication. This means that a company is not allowed to send spam-documents electronically unless they have permission (f.i. through a subscription) from the recipient.

International commercial communications
Since the Telecommunications Act has territorial effect this new statutory rule only applies to Dutch senders. This has been confirmed by the Dutch government in the Explanatory Memo-randum on the amendments in the Telecommunications Act (nr. 30.661, nr. 3 of the year 2005-2006). This means that Dutch companies are prohibited from sending unsolicited emails to addressees throughout the European Economic Area (EEA), while the other way around foreign companies are free to send such messages to Dutch recipients (unless this is prohib-ited by the laws of the country where they are established).

If the addressee of a "spam" message has its actual place of business outside the EEA, the sender must comply with the law concerning sending unsolicited electronic communications of the addressee's country.

For more information on the new rules on spam, please visit the CMS Derks Star Busmann IP/TMT Newsflash 2009, no. 4

New tool against "telephone spam": blacklist for call centres
The Dutch legislator has also introduced the "do-not-call-me" register, which intends to meet the needs of the society. Starting 1 October call centres and sales companies who are using calls as tools for their sales are bound to the "do-not-call-me" register. How does it work?
Before placing an unsolicited telephone call, the caller needs to check the "do-not-call-me" register before making the call. If the target number is on the list of the register, the caller is prohibited to call this number. If the person is not on the list of the register, then the salesper-son remains free to place the call and make his offering, but he will then be obliged to inform the person he is calling, among other things, of the possibility to use the "do-not-call-me" register and prevent future unsolicited phone calls.