On 19 January 2010, the Dutch regulatory authority for telecommunication and postal markets (OPTA) published new anti-spam policy guidelines setting out the circumstances under which OPTA will enforce the anti-spam regulation as stipulated in the Dutch Telecommunications Act.

The Dutch Telecommunications Act provides that the use of automatic calling systems, fax messages and electronic messages (such as e-mail, sms and mms) for the transmission of unsolicited communication for commercial, non-commercial or charitable purposes is only allowed if the recipient has provided prior approval (opt in consent). Each successive e-mail should contain an unsubscribe option and the identity of the person by order of whom the message was sent.

However, opt in consent is not required if:

  • the contact details of the recipient were obtained in the context of the sale of products or services of the sender and the messages relate to similar products or services;
  • the recipient is a legal entity or a private individual acting in his/her professional capacity and (i) the contact details are used in accordance with the purpose as indicated by the recipient (e.g. in case of an e-mail address displayed on a company’s website and explicitly designated for receipt of marketing material); or (ii) the recipient has its residence or seat outside the EEA and the relevant requirements regarding unsolicited communications as valid in that particular country are satisfied.

Please note that from 1 October 2009 not only private individuals but also companies may rely on Dutch anti-spam regulation.

According to the 2010 anti-spam policy guidelines, OPTA will not enforce these marketing consent requirements following a single complaint but will take enforcement action and set the amount of any fine dependent on the seriousness of the relevant breach and the relevant circumstances, including:

  • the number of complaints;
  • the number of messages sent;
  • whether a specific breach has occurred repeatedly;
  • the damaging nature of the breach for recipients;
  • the damage which was caused by the relevant message in the opinion of internet service providers; and
  • whether the methods or means or the way these have been used also constitute a breach of privacy rules or a wrongful act.

OPTA does not evaluate the content of the relevant message; rather it evaluates the impression the recipient has of its damaging character.

OPTA may impose an order for periodic penalty payments or an administrative fine up to a maximum of EUR 450,000 depending on the seriousness of the breach. In the 2010 anti-spam policy guidelines it is stated that OPTA determines the seriousness of a breach, amongst other factors, by reference to the benefit acquired by the infringer or the damage caused. In general, if the relevant breach does not justify a penalty OPTA will only issue an official warning.