We have asked Anna den Hartog, head of our TMT and Data Protection practices at our Dutch office Eversheds Faasen to give us her thoughts on some of the key changes in law relevant for the TMT sector in the Netherlands.
"Before I became a lawyer in 2001, I have worked for several years as a ICT manager for a large outsourcing company and I have worked as an interim in house legal counsel for international technology companies such as Microsoft and ASML. Furthermore, I am member of the board and one of the founders of the Dutch Privacy Law Association and a member of the board of the Dutch Association for ICT and Law so I am very well aware of the new trends and topics in the Dutch market.
Actually, there is a lot going on in the field of Dutch TMT legislation and case law. There are many changes coming through so I will focus on the most significant hot topics at this moment which I mention below".
Neutrality of the net
This summer, the Dutch parliament ("Tweede Kamer") and senate ("Eerste Kamer") adopted an amendment to the Dutch Telecommunications Act that amongst others provides for net neutrality. The Netherlands is now, after Chili, the second country in the world, that has laid down by law the principle of net neutrality. In short, the principle implies that internet access providers are not allowed to give priority to certain types of internet traffic. Furthermore blocking or charging extra money for certain types of internet services is not allowed under the new act.
Cookies
The Dutch legislator has at first instance issued a proposal for a new act to implement the European Directive 2009/136/EC on cookies legislation. However, the wording led to a lot of criticism because it implied amongst others that for each cookie, an internet user had to give his or her explicit consent by means of accepting a pop up screen. This interpretation of the European Directive was far stricter than in other European states. The proposal was rejected and withdrawn by the legislator and has now been changed in a way that the consent of an internet user for the placement of a cookie can e.g. be done by means of browser options. However, the current versions of many browsers do not make the distinction in settings that is required under the new proposal. Another option will be that the internet user gives his or her consent on a central website of the provider of the website. The proposal is accepted by the Dutch Parliament but is now subject to discussion in the Dutch senate.
Please note that the discussions on consent only regard the "tracking cookies", i.e. the cookies that track the web surfing behavior of internet users, and not the cookies that are only used to improve services provided through internet or that e.g. remembers language preferences.
Consumer law, auto renewal provisions in contracts
The Dutch legislator has adopted an act implying in short that consumer contracts can not be renewed automatically if the contract does not provide a consumer with the right to terminate the contract at any time upon a month's notice. The new act will be effective as of January 1st 2012 and will have a big impact on various consumer contracts within the TMT branch such as software subscriptions, subscriptions regarding internet based services, telecom contracts etc.
Changes in company law
Finally, of relevance, is that a bill is pending to simplify the laws regulating B.V. companies. For example the minimum capital requirement will no longer be valid. The Netherlands is recognized by many international TMT companies as a prime location from which to serve their markets in the EU and the EMEA region as a whole and its serves an important role as a European transport hub. The changes will make the B.V. even more of an internationally competitive legal form which will cater to the shareholder's needs.
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