Tag Archive: ACM

NETHERLANDS – high fines imposed on both publishing company and its shareholder

By Richard van Schaik and Róbin de Wit

Yesterday, the Authority for Consumers and Markets (“ACM”) reported that it has imposed a € 745,000 fine on a Dutch publishing company for violating rules regarding unfair commercial practices – such as sending unsolicited follow-up shipments -, telemarketing and distance selling. A striking detail is that not only the company was fined, but the ACM also imposed a € 300,000 fine on the ultimate shareholder for exercising de facto leadership with respect to the violations.

Background

In short, the background of the case is as follows.

In the period from 2011 to 2013, the company approached a great number of consumers through telemarketing, its website and by regular mail with the aim to sell a trial package for a low amount. After the sale, consumers received follow-up shipments unsolicitedly, for which they had to pay.

Furthermore, offers were presented to be free of charge – which was not the case -, clear information regarding the company’s offers was withheld and consumers were asked for a direct debit authorization, which is not allowed for this type of telephone sales.

Lastly, the company did not provide mandatory information about the purpose of the call, meaning that consumers did not have sufficient information to decide whether or not they wanted to continue the conversation.

Despite warnings issued by the ACM in response to several complaints the ACM received from consumers, the company did not follow up on its commitment to reorganize its sales operations and to monitor its call centers more strictly. This made the ACM to decide to investigate the matter and subsequently, to impose fines. The ultimate shareholder was fined for the fact that it was aware of the ongoing violations and failed to take actions against it.

The company lodged a notice of objection to the decision of the ACM.

Please click here for the report issued by the ACM.

Permanent link to this article: http://blogs.dlapiper.com/privacymatters/the-netherlands-high-fines-imposed-on-both-publishing-company-and-its-shareholder/

The Netherlands: Dutch websites massively violate privacy laws by unsolicitedly placing tracking cookies

 

Dutch newspapers report that Dutch websites massively violate privacy laws by passing on information about surf and click behavior of visitors to advertising companies, without permission of the visitors involved. Such information is collected through so-called tracking cookies.

Under Dutch cookie law, website operators need to consider the application of article 11.7a Telecommunications Act (Telecommunicatiewet) for the use of cookies, except for those which are “strictly necessary for the provision of an information society service requested by the subscriber or user”. This means that all cookies that are not strictly necessary for the essential operation of the website require prior informed (opt-in) consent. Tracking cookies do not fall under this “strictly necessary” exemption. On the contrary: tracking cookies or similar data files placed or accessed, are considered to be personal data, unless the party placing such cookies or information can prove otherwise.

Rules on cookie consent are subject to new legislation under which the required opt-in consent may be changed to implied consent. However, because of the privacy sensitivity the this new legislation will not apply to tracking cookies. This means that the required opt-in consent remains unchanged so that even after a legislative change Dutch websites will still be in violation of the Telecommunications Act. Therefore, parliamentary questions are currently asked to the Dutch state secretary of Justice, Fred Teeven.

Although no sanctions have been imposed yet by the Dutch supervisory authority (Authority for Consumers & Markets (“ACM”)), the ACM does acknowledge that not every website complies with Dutch cookie laws. Currently, the ACM is investigating companies that violate the laws so it is likely that the first fine will be imposed soon.

For further information, please contact Richard van Schaik (richard.vanschaik@dlapiper.com) or Róbin de Wit (robin.dewit@dlapiper.com).

Permanent link to this article: http://blogs.dlapiper.com/privacymatters/the-netherlands-dutch-websites-massively-violate-privacy-laws-by-unsolicitedly-placing-tracking-cookies/

The Netherlands: Dutch energy company is fined for violating the Dutch telemarketing rules

Last week, the Dutch Authority for Consumers and Markets (“ACM”) imposed a fine on energy company Essent for violating the Dutch telemarketing rules. In short, Essent had called several consumers with respect to a commercial offer, albeit that a large number of the consumers approached was registered with the Do Not Call Me Register (“Register”). This means that Essent was not allowed to approach these consumers unsolicited by telephone, unless it concerned a former customer of Essent. Clearly, Essent had failed to remove addresses from such registered consumers (not being former customers) from its call files and approached them unsolicited by telephone in violation of article 11.7 of the Dutch Telecommunications Act (Telecommunicatiewet).

From an investigation carried by the ACM in response to several complaints from consumers, it turned out that Essent made use of phone numbers of consumers who had left their contact details through surveys on Essents website for which a prize could be won. ​​Under Dutch law, Essent may only use such contact details for telemarketing purposes if the consumer (not being a former customer) has expressly and unambiguously consented thereto. This was not always the case. Therefore, Essent was obliged to compare the phone numbers obtained through its website with the phone numbers included in the Register prior to using them. Essent had failed to do so and called the consumers anyway, as a result of which the purpose of the Register was being undermined. This caused the ACM to impose a fine amounting to € 47,500.

For further information, please contact Richard van Schaik (richard.vanschaik@dlapiper.com) or Róbin de Wit (robin.dewit@dlapiper.com).

Permanent link to this article: http://blogs.dlapiper.com/privacymatters/the-netherlands-dutch-energy-company-is-fined-for-violating-the-dutch-telemarketing-rules/