NetherlandsTelecommunicatiewet (Telecommunications Act), Article 11.7(1), (3) to (5) and (7), Prior Consent for Unsolicited Electronic Messages
Telecommunicatiewet, art. 11.7(1), (3)-(5), (7)
In force since .
A commercial messages rule binding public and private bodies.
- Obligation class
- Consent, Disclosure
As of .
What it requires
- Obtain the end user's prior consent before using an automatic calling or communication system without human intervention, a fax or an electronic message to send unsolicited communication for commercial, idealistic or charitable purposes, and be able to show that consent.
- You need no prior consent to send such communication to a legal person or to a natural person acting in the exercise of a profession or business only if you use electronic contact details that the recipient designated and made known for receiving unsolicited communication for those purposes and use them in line with the purposes attached to them, or the recipient is established outside the European Economic Area and that country's rules on unsolicited communication are met.
- You may use electronic contact details obtained from your customers in the context of the sale of a product or service for unsolicited commercial communication about your own similar products or services without fresh consent only if you can show that origin and clearly and explicitly offered the customer, free of charge and in an easy manner, the chance to object to that use when the details were collected and, if they did not object then, in every message you send.
- An idealistic or charitable organization may use contact details obtained in connection with a donation to it for unsolicited communication for its own idealistic or charitable purposes without fresh consent only if it can show that origin and offered the same chance to object at collection and in every message.
- In every such electronic message, state the real identity of the person on whose behalf the communication is sent and a valid postal address or number to which the recipient can send a request to end such communication. The requirements of Article 15e(1)(a) to (c) of Book 3 of the Civil Code apply to those messages, and they may not encourage the recipient to consult information on the internet that breaches that article.
If you get it wrong
Penalty structure
Article 15.4(2) lets the ACM fine a breach of a provision it supervises under Article 15.1(3) up to EUR 900,000 or, if that is more, 1 % of the undertaking's turnover, and Article 15.4(5) raises that maximum by 100 % where a fine for the same or a similar rule became final within the five years before the report of the breach.
- Rule
- Higher of
- As of
- Currency
- EUR
- Fixed cap
- 900,000
- Turnover percentage cap
- 1
Who enforces it
Enforcement body
The Authority for Consumers and Markets (Autoriteit Consument en Markt, ACM), which Article 15.1(3) of the Telecommunicatiewet charges with supervising compliance with the provisions of the Act other than those named in Article 15.1(1) and (2), and which Article 15.4(2) empowers to impose administrative fines.
What this law does
Article 11.7(1) prohibits the use of automatic calling and communication systems without human intervention, faxes and electronic messages to send unsolicited communication for commercial, idealistic or charitable purposes, unless the sender can show that the end user gave prior consent.
Article 11.7(3) lifts the prior-consent requirement of paragraphs 1 and 2 for communication to a legal person or to a natural person acting in the exercise of a profession or business, but only if one of two conditions is met. The first condition is that the sender uses electronic contact details that the end user designated and made known for receiving unsolicited communication for such purposes, and uses them in line with the purposes the end user attached to them.
The second condition is that the end user is established outside the European Economic Area and the rules in force in that country on unsolicited communication are met.
Article 11.7(4) departs from paragraph 1 for a sender that can show it obtained electronic contact details from its customers in the context of a sale of a product or service, so that it may use them to send unsolicited communication for commercial purposes about its own similar products or services, provided it clearly and explicitly gave the end user the opportunity to object free of charge and in an easy manner to that use.
That opportunity must be given when the details are collected and, if the user did not object then, in every message sent. Article 11.7(5) lets an idealistic or charitable organization that can show it uses contact details obtained in connection with a donation to it use them for unsolicited communication for its own idealistic or charitable purposes, on the same two opportunities to object.
Article 11.7(7) requires every such electronic message to state the real identity of the person on whose behalf the communication is sent and a valid postal address or number to which the recipient can send a request to end such communication. Article 11.7(7) also applies the requirements of Article 15e(1)(a) to (c) of Book 3 of the Civil Code to electronic messages sent for those purposes. The Act of rewrote Article 11.7 in full.
When LexLint raises it
When your app profile says your app sends automated outreach.