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Dutch to accept implied consent for cookies?

Phil Lee
26/02/2013
Recent developments in the Netherlands indicate that the Dutch may soon exempt first party analytics cookies from EU cookie consent requirements and allow website operators to imply their visitors' Recent developments in the Netherlands indicate that the Dutch may soon exempt first party analytics cookies from EU cookie consent requirements and allow website operators to imply their visitors' consent for other types of cookies.

Background to Dutch rules on cookies

By way of a re-cap, European cookie consent rules (article 5(3) e-Privacy Directive) were implemented in article 11.7a of the Dutch Telecommunication Act in June of last year. These rules, overseen by the Telecommunication Authority, became effective on 5th June 2012 and require anyone who uses cookies to:

(a) obtain consent from the user on whose terminal equipment the cookies are stored, and

(b) clearly and comprehensively inform the user about the purposes of the cookie usage.

However, the Dutch cookie regulation went one step further and created a legal (refutable) presumption that the use of tracking cookies (over multiple websites) for commercial purposes constitutes processing of "personal data" under the Dutch Data Protection Act and this presumption became effective on 1st January 2013.

During the parliamentary debate, the Telecommunication Authority was urged not to enforce all rules before the 1st of January 2013 and the Telecommunication Authority accepted this grace period. As a result, most Dutch businesses have therefore only just started to make their websites compliant with the new consent rules. Since the start of the new year, Dutch residents have therefore started to see cookie pop-ups on almost every site they visit.

Recent developments

The government has concluded that there is widespread unhappiness amongst users with this practice.  The Minister for Economic Affairs (Mr. Kamp) has therefore encouraged Parliament to "soften" the effects of the cookie regulation and proposed two measures:

First-party analytics cookies

Firstly, the Minister has indicated that the Telecommunication Act will be amended. As a result of the amendment, the use of first-party analytics cookies will be allowed without consent. The duty to inform users about their use will still apply.

The Minister had previously announced in December, and reiterated in early February, that he was working with the Telecommunication and Data Protection Authority on crafting a more lenient regulatory regime for first-party analytics cookies. Initially, it therefore seemed this cooperation between the Telecommunication Authority, the Data Protection Authority and the government would result in regulatory guidelines concerning analytics cookies. Now it seems that the government will introduce legislation instead.

This proposal is expected to be submitted to Parliament mid-March.

Implied consent

Secondly, the Minister said the government is considering new regulations that would make it possible to obtain users' "implied" consent. The Minister indicated that if a user is informed of the fact that a website uses cookies and how he can refuse those cookies, his consent can be implied if he continues to browse the website without changing his cookie settings.

If this approach is implemented, website owners would then no longer need to actively seek explicit consent for the use of cookies in the Netherlands. The approach would be in line with the position adopted by the UK Information Commissioner (ICO), who already acknowledges implied consent as a viable solution. However, implied consent was not an option previously accepted by the Telecommunication Authority: in each of the FAQs issued it stated that a user must actively supply its consent with the use of cookies. The government's proposal is therefore a major departure from the current state of affairs.

As for the applicable timeline, this will depend on the legislative instrument used to implement this change but could potentially be a matter of weeks.

What this means now

In the meantime, these announcements by the Minister do not change the law (yet) and the Dutch Telecommunication Authority is still authorized to enforce the current cookie rules. The Minister is competent to instruct the Telecommunication Authority to suspend enforcement of the provisions but there is currently no information on whether the Minister has ordered (or will order) this.   However, taking these latest developments into account, it seems likely that the strict opt-in consent standards currently in force in the Netherlands will transition to implied consent over the coming months, bringing the Netherlands into line with much of the rest of Europe. 

With thanks to our friends Nicole Wolters Ruckert and Hester de Vries from Kennedy Van der Laan for this update.

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