In 2004, the Netherlands introduced legislation banning the sending of unsolicited electronic messages to natural persons. In 2008, the ban was broadened to include unsolicited electronic messages sent to legal persons. However, the legislation also includes exceptions to the restrictions on sending spam.
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The provisions of the European Directive on Privacy on electronic communications (2002/58/EC), in particular regarding the banning of spam, were adopted on 4 November 2003 by the Dutch Lower House in the form of the Telecommunications Act. In 2003, the Netherlands integrated Article 12 of the European Directive 97/66/EC into chapter 11 of the Act. Article 11.7, paragraph 1, provides that it is unlawful to transmit electronic messages for commercial, personal or charitable purposes without first receiving the consent of the recipient (the "subscribing natural person").
In the Netherlands, spam includes any text or spoken messages transmitted via an electronic communication network that can be stored on a network or in the recipient's peripheral devices until such time when the message is uploaded by the recipient (Article 11.1). Accordingly, all unsolicited advertisements transmitted to natural persons via e-mail, SMS, MMS and voicemail fall within the scope of the ban on spam.
Until 2008, the ban on spam only applied to messages sent to a natural person, and thus its application was limited to messages targeting consumers and small unincorporated entities. In view of the financial implications that spam has on the business sector, however, provisions were introduced to include messages sent to legal persons.
On 22 January 2008 an amendment to the Telecommunications Act (Amendment of the Telecommunications Act relating to the installation of an antenna register, the extension of the ban on sending unsolicited electronic communications as well as the regulation of various issues, Parliamentary Papers 2007-2008, 306661) was enacted. Consequently, the sending of spam to legal persons is also prohibited.
Except where an exception applies, each recipient, whether a natural or a legal person, must consent to receiving the unsolicited commercial, non-commercial or charitable messages.
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Ira Piltz, Greenpoint Technologies