The New Dutch Cookie Regime
The new Dutch cookie regime will
come into effect on 8 June 2012. The rules introduce a stricter regime for most
cookies, which is based on informed and explicit consent. It is expected that
the new Dutch legislation will be stricter than the implementation of the
EU-requirements which has already taken place in most other Member States.
Summary of the new rules
Strong link between cookies
The new legislation is premised upon a strong
link between cookies and data protection/privacy, mainly due to the use of
cookies in profiling. The new cookie rules therefore contain various references
to the Dutch Data Protection Act. Most notorious is the notion that the use of
cookies for commercial, charitable or idealistic purposes is presumed to involve
the processing of personal data. This introduces a burden of proof where the
website publisher has to prove that the tracking cookie does not process
personal data. In practice, this will make it easier for the Dutch Data
Protection Authority (College bescherming persoonsgegevens) to
telecom authority OPTA). Please note that this legal presumption only
enters into force from 1 January 2013, as opposed to the rest of the cookie
The old cookie rules were based on a right of refusal of cookies, in practice
rules however, require the user to give consent to the placing and retrieving of
cookies. There has been considerable discussion as to how consent can be
The legislature has made clear that currently, browsers are
not capable of producing this consent, leaving it to websites to obtain consent.
The Dutch legislator indicated that this could be different with future
At this moment, it is unclear how consent must be obtained;
neither the relevant regulatory bodies, nor the Dutch legislature have provided
instructions or guidelines on how consent must be obtained. It is expected that
consent can in practice be obtained by a pop-up or splash screen, though other
options are also available.
As with the old rules, information on the
purposes, placing and removal of cookies should be provided to users. It is
The exception to the requirements of
information and consent is for so-called "functional cookies". If cookies are
essential in the process of communication or to provide the user with a
requested service, there is no need to obtain informed and explicit consent
prior to the placement or access of the cookie. Examples of functional cookies
are cookies used to facilitate online payment or cookies used for displaying
online content such as videos. Due to the absence of guidelines, it is unclear
if so-called analytical cookies, used for monitoring the actions of visitors on
a website, will be considered as functional cookies.
Upcoming cookie seminar
Much more can be said about the national
and international implementation of the new cookie rules for your business. In
June, we will host a seminar to talk you through the new cookie regime, the
latest national and international developments and give you practical examples
of how your website could be adjusted to comply with the new legislation. We
will circulate an invitation in the course of this week.
Please also see
website, which provides an overview of the implantation in the various
member states and the practical guidelines published by other supervisors.
Should you have any questions, please feel free to contact
Gerrit-Jan Zwenne or
Berend van der Eijk.
The content of this update is of general interest and is not
intended to apply to specific circumstances. The content should not,
therefore, be regarded as constituting legal advice and should not be relied
on as such. In relation to any particular problem which they may have,
readers are advised to seek specific advice. Further, the law may have
changed since first publication and the reader is cautioned accordingly.
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