What does the Telecommunication Act entail and what has changed?

The Telecommunications Act is the primary legislation governing the telecommunications sector in the Netherlands, including a chapter on privacy and telecommunications transposing the Directive on Privacy and Electronic Communications (2002/58/EC) (as amended) ('the ePrivacy Directive'). Prior to the amendment of the 1 July 2021, the provision on unsolicited communications included an opt-out mechanism in regard to telemarketing calls made by natural persons, which is now replaced with an opt-in consent requirement. In addition, the do-not-call register is no longer used.

What are the new conditions that businesses must follow in a business-to-consumer relationship?

From the 1 July 2021 onwards, companies will need prior, opt-in consent for both automated and non-automated unsolicited calls, with a commercial, ideological, or charity related purpose, unless an exception applies.

The first exception relates to client relationships, which includes both current and former clients for up to three years. The three-year timeframe follows from a non-legally binding industry code, the Code for Telemarketing 2021. 

The exception applies if the following criteria are met:

• the individuals provided their contact information in the context of a previous purchase;
• at the time of that purchase, the individual was informed that their contact information can be used for unsolicited communications;
• the individual was provided a way to opt-out of being contacted for telemarketing calls when providing their contact information; and
• the telemarketing relates only to the company’s own similar products or services.

The second exception relates to ideological and charitable organisations, for communication to:

• (former) donors/sponsors;
• volunteers; or
• people that have attended manifestations of the charity or ideological organisation.

In both scenarios, individuals should be offered the right to opt-out in each communication. After opting-out, the individual may not be contacted again.

In addition, the caller ID needs to be turned on, prohibiting anonymous calls.

What about in the context of a business-to-business relationship?

Strictly, the opt-in consent mechanism does not apply to business-to-business relationships, unless it concerns smaller enterprise structures such as sole proprietorships and commercial partnerships.

Businesses, however, are still offered a certain degree of protection. When calling another business for telemarketing purposes, the following requirements apply:

• the contact details of the business need to be published; and
• it must be clear that these contact details may be used for telemarketing purposes (e.g. if there is a separate phone number listed for advertising or other offers); or
• the business that is being contacted is established outside of the European Economic Area and the telemarketing is carried out in accordance with local telecommunication laws.

What does it mean now that there is an opt-in as opposed to an opt-out?

The new rules mean that opt-in consent is required for all telemarketing calls to individuals, collected in accordance with Article 7 of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR').

In addition, individuals should be informed of their rights, including their right to opt-out in each communication.

What about enforcement?

The Authority for Consumers and Markets ('ACM') is the supervisory authority. Individuals can submit complaints with the ACM for alleged violations of the Telecommunications Act. The burden of proof lies with the company responsible for the communications. Companies are therefore recommended to document how consent is obtained. In case of violations of the Telecommunications Act, the ACM may initiate enforcement proceedings and may impose an administrative fine of maximum €900,000 per violation.

Chantal Van Dam Senior Associate
[email protected]
Femke van der Eijk Paralegal
[email protected]
Hogan Lovells, Amsterdam

1. See: https://www.eerstekamer.nl/behandeling/20210301/publicatie_wet_3/document3/f=/vlgpei3zykyr.pdf