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Reportedly, the amendments made to the Telecommunications Act "lead to a new legal constellation unique in the European Union," and because of Dutch legislators' particular concern over "maintaining a free and open Internet, the protection of privacy and consumer interests, … Parliamentary debates on the implementation of EU regulations on telecom were led into a direction that differs from the legal situation in surrounding countries." (van der Veen, supra.)
One key amendment is the adoption of provisions on net neutrality, making the Netherlands the first country in Europe and the second in the world (after Chile) to "guarantee free access to internet under the law." (Net Neutrality Laid Down in Dutch Law, DUTCH DAILY NEWS (May 9, 2012).) This means that telecommunication companies and Internet Service Providers (ISPs) may no longer "block, delay or obstruct in any way, services and other internet and/or telecom traffic, unless this is necessary for reasons of congestion management, security, continuity of the network, et cetera." (van der Veen, supra.) The net neutrality law will not only guarantee that access to the Internet is neutral, but also prohibit filtering of the Internet. (Loek Essers, Dutch Net Neutrality to Become Reality After Senate Approves Law, PC WORLD (May 9, 2012).)
The aim of the net neutrality provisions is "to prevent telecom providers from blocking or throttling services such as Skype or WhatsApp, an Internet SMS [Short Message Service]," and "from making prices for their Internet services dependent on the services used by the subscriber." While traffic may be throttled in order to prevent congestion or protect the network (provided that the ISPs "treat traffic of the same type equally"), it may not be blocked except when necessary "to protect the integrity and security of the network or users' terminals." (Essers, supra.)
There is one significant exception to this provision against throttling, however; a religious exception clause, whereby an Internet user may request that an ISP filter the user's Internet traffic based on ideological grounds, "by blocking services and applications." (Id.; Eerste Kamer der Staten-Generaal, Session 2010-2011, 32 549 Amendment of the Telecommunications Act to Implement the Revised Telecommunications Directives [in Dutch], art. 7.4a(1)(e) (last visited May 9, 2012).) Reportedly, many Dutch politicians fear the exception may pave the way for Internet censorship, despite its intended effect of allowing filtering at a customers' request. (Essers, supra.)
The religious exception clause was mistakenly inserted in the proposed law in 2011 by an accidental vote in favor of it by the Dutch Labor Party. To repair the error, a new amendment aimed at nullifying the clause will be added to an unrelated law on traffic regulation, Senator Han Noten of the Labor Party was quoted as explaining. However, the Christian Union party wants a religious filtering exception to be retained in the Act, and it filed a motion in the Senate on May 8, to be submitted to a vote on May 15, requesting that the government "explore the possibilities for religious and ideological Internet filtering by providers on explicit request of the subscriber." (Id.)
The amended Act also makes Dutch privacy law, notably the Personal Data Protection Act, applicable to the use of all tracking cookies, through the introduction of "the legal presumption that the use (placing and reading the file on the device of an end user) of a tracking cookie constitutes processing of personal data." Thus, the "unambiguous consent" of the consumer is required for cookies to be placed. (van der Veen, supra.)
Other Significant Changes Noted
Other key changes in the Law include stipulations on:
- the obligation of service providers to inform customers as quickly as possible if customer details come into the public domain;
- the provision of image and text mediation service to help disabled users communicate more easily with businesses and government bodies;
- the implementation of a new frequency policy for wireless communication, "with flexibility as its key," to speed up the formulation of and simplify procedures and rules and to abolish superfluous ones, facilitating quick adaptation to changing circumstances and technological developments in the telecommunications market;
- anti-wiretapping, to restrict providers from using network management techniques such as Deep Packet Inspection (DPI); and
- the prevention of ISPs from disconnecting customers except on grounds of failure to pay or fraud or in response to a court order. (Id.; Essers, supra.)
The amended Act will come into force after being signed by the Queen and officially published in the Official Gazette of the Kingdom of the Netherlands (Staatsblad van het Koninkrijk der Nederlanden). (Essers, supra.)
|Author:||Wendy Zeldin More by this author|
|Topic:||Communications More on this topic|
|Jurisdiction:||Netherlands More about this jurisdiction|
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Last updated: 05/15/2012