Netherlands’ Strict New Cookie Rules Take Effect

By Gerrit-Jan Zwenne and Berend van der Eijk, of Bird & Bird LLP, The Hague.

The new Dutch cookie regime came into effect June 5, 2012, one day after its publication in the Government Gazette. The new rules introduce a stricter regime for most cookies which is based on informed 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 EU Member States.

A summary of the new rules follows.

Strong Link Between Cookies and Privacy

The new legislation is premised upon a strong link between cookies and data protection/privacy, mainly due to the use of cookies in profiling. Therefore, the new cookie rules 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 under which the website publisher has to prove that the tracking cookie is not used to process personal data. In practice, this will make it easier for the Dutch Data Protection Authority (College bescherming persoonsgegevens) to supervise the use of cookies (further to general supervision by the Independent Post and Telecommunications Authority (OPTA)). Please note that this legal presumption will enter into force from January 1, 2013, as opposed to the rest of the cookie regime.

Prior Consent

The old cookie rules were based on a right of refusal of cookies, in practice implemented by browser settings that make it possible to refuse cookies. By contrast, the new rules require the user to give consent to the placing and retrieving of cookies. There has been considerable discussion as to how consent can be obtained.

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 browsers.

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