Bosselaar Strengers Legal Partners

 

The following law(s) specifically govern personal data / information:

  1. Algemene Verordening Gegegensbescherming (AVG, General Data Protection Regulation or GDPR). The GDPR is applicable since 25th May 2018;
  2. General Data Protection Regulation Implementation Act (UAVG). Where the GDPR leaves room for national choices in the implementation of the GDPR, these have been specified in the UAVG;
  3. Wet politiegegevens (the Police Data Act), regulates the protection of personal data at the police;
  4. Wet justitiele en strafvorderlijke gegevens (the Judicial and Criminal Data Act), regulates the processing of judicial data (in personal files) and the VOG (“Verklaring Omtrent het Gedrag”), which is a certificate of conduct issued by the Dutch Minister of Legal Protection declaring that an applicant has not been convicted for any crime relevant to the performance of their duty;
  5. Kieswet (Elections Act); and
  6. Wet Basisregistratie Personen (BRP), (Personal Records Database), regulates the correct use of personal data of the residents of the Netherlands, such as the actions of municipalities in recording, changing and providing personal data in the BRP.

These are the 6 main acts supervised by the AP.

 

The key data protection principles in this jurisdiction are:

  • Lawful basis for processing
  • The GDPR provides an exhaustive list of legal bases on which personal data may be processed:

    1. consent of the data subject for one or more specific purposes;
    2. contractual necessity;
    3. compliance with a legal obligation of the controller to perform the relevant processing;
    4. protection of the vital interests of the data subject or of another natural person;
    5. performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; or
    6. legitimate interests (i.e. the processing is necessary for the purposes of legitimate interests pursued by the controller, except where the controller’s interests are overridden by the interests, fundamental rights or freedoms of the affected data subjects).

    The processing of sensitive personal data requires stronger grounds and is only permitted under certain conditions, of which the most relevant are:

    1. explicit consent of the affected data subject;
    2. the processing is necessary in the context of employment or social security law; or
    3. the processing is necessary for the establishment, exercise or defence of legal claims.

  • Transparency
  • Personal data must be processed lawfully, fairly and in a transparent manner. Regarding the processing of personal data, controllers are obliged to provide certain information to data subjects. Such information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.


  • Purpose limitation
  • Personal data may only be collected for specified, explicit and legitimate purposes and must not be further processed in a manner that is incompatible with those purposes.


  • Data minimisation
  • The processing of personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which those data are processed.


  • Accuracy
  • Personal data must be accurate and, where necessary, kept up to date.


  • Storage limitation
  • Personal data must be stored in a form that permits identification of data subjects for no longer than it is necessary for the purposes for which the personal data was initially collected.


  • Integrity and confidentiality
  • Personal data must be processed in a manner that ensures appropriate security of those data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.


  • Accountability
  • The controller is responsible for processing of data in accordance with the GDPR. In particular, the controller is obliged to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in compliance with the GDPR.


 

The supervisory authority / regulator in charge of data protection is:

Autoriteit Persoonsgegevens (AP), the Dutch Data Protection Authority.

 

Is there a requirement to register with a supervisory authority / regulator?

No, not in general.

An organisation does have to register a Data Protection Officer (DPO) online (there is no fee payable), in case of a new registration, an alteration of a previous registration or in case of a cancellation of a previous registration.

This is a requirement irrespective of whether the appointment of the DPO is mandatory or voluntary.

 

Is there a requirement to notify the supervisory authority / regulator?

No, not in general (contrary to the former data protection law “Wet bescherming persoonsgegevens”).

In the following situations, notification can be required (depending on the circumstances):

  1. breach of personal data (“Meldingsplicht datalekken”);
  2. in case the DPIA has revealed that the intended processing poses a high risk and an organization cannot find measures to limit this risk, the AP has to be consulted prior to processing. This is called a preliminary consultation;
  3. applying for a permit regarding the processing of criminal personal data. According to the GDPR, the processing of criminal personal data is generally prohibited. It is only allowed under government supervision or in cases where the processing is permitted under the UAVG. If this is not the case, then a permit from the AP must be applied for; and
  4. registration of the DPO, de “functionaris voor de gegevensbescherming” (FG).

 

Is it possible to register with / notify the supervisory authority / regulator online?

Yes, but this is only available online for the following:

 

The key data subject rights under the data protection laws of this jurisdiction are:

  • Right to information
  • Pursuant to Articles 13 and 14 GDPR, data subjects have the right to be provided with information on the identity of the controller, the reasons for processing their personal data and other relevant information necessary to ensure the fair and transparent processing of personal data.


  • Right of access
  • A data subject has the right to obtain from a controller certain information in respect of the data subject’s personal data as listed in Article 15 GDPR.

    Additionally, the data subject may request a copy of the personal data being processed.


  • Right to rectification of errors
  • Pursuant to Article 16 GDPR, data subjects have the right to rectification of inaccurate personal data.


  • Right to deletion/right to be forgotten
  • Data subjects have the right to erasure of their personal data (the “right to be forgotten”) if one of the reason as listed in Article 17 GDPR apply.


  • Right to restriction of processing
  • Data subjects have the right to request restriction of the processing of personal data, which means that the data may only be processed for limited purposes as defined in Article 18 GDPR.


  • Right to data portability
  • Data subjects have a right to receive a copy of their personal data in a commonly used machine-readable format, and transfer their personal data from one controller to another or have the data transmitted directly between controllers (Article 20 GDPR).


  • Right to object to processing
  • Data subjects have the right to object, on grounds relating to their particular situation, to the processing of personal data where the basis for that processing is either public interest (Article 6 para 1(e) GDPR) or legitimate interest of the controller (Article 6 para 1(f) GDPR). The controller must cease such processing unless it demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the relevant data subject or requires the data in order to establish, exercise or defend legal rights.

    Data subjects have the right to object to the processing of personal data for marketing purposes, including profiling.


  • Right to withdraw consent
  • A data subject has the right to withdraw their consent at any time (Article 7 para 3 GDPR). The withdrawal of consent does not affect the lawfulness of processing based on consent before the withdrawal.


  • Right to complain to the relevant data protection authority(ies)
  • Data subjects have the right to lodge complaints concerning the processing of their personal data with the competent data protection authority.


  • Right not to be subject to automated individual decision-making
  • Under certain circumstances, data subjects have the right not to be subject to a decision based solely on automated processing of data (including profiling), which produces legal effects or similarly significantly effects for the data subject (Article 22 GDPR).


 

Is there a requirement to appoint a data protection officer (or equivalent)?

It is mandatory to appoint a DPO in the following 3 situations:

  1. For government agencies and public organizations, regardless of the type of data they process;
  2. For organizations whose core activities include large-scale regular and systematic monitoring of individuals. This may include e.g. profiling people for risk assessments, camera surveillance and monitoring someone’s health via wearables;
  3. For organizations whose core activities include the processing of special categories of personal data on a large scale.

An organization can voluntarily appoint a DPO, which is advisable for companies that perform government tasks such as energy companies, housing corporations and public transport companies.

The same rules apply to the voluntarily appointed DPO as to the mandatory DPO, e.g. regarding their duties.

 

Do data protection/ privacy impact assessments need to be carried out in certain circumstances?

A DPIA is mandatory if the data processing is likely to pose a high privacy risk for the data subjects. This must be determined by the controller itself. In any case a DPIA must also be performed if an organization:

  1. systematically and comprehensively evaluates personal aspects based on automated processing, including profiling, and makes decisions which affect people;
  2. processes special personal data or processes criminal data on a large scale; or
  3. widely and systematically monitors people in a publicly accessible area (e.g. with camera surveillance).

In the abovementioned situations, processing data may not start before a DPIA has been performed and, if necessary, the AP consulted.

 

Does this jurisdiction have any specific data breach notification requirements?

In certain circumstances an organization (controller) is obliged to report a data breach to the AP. It depends on the (potential) impact of the data breach on the protection of personal data and the privacy of those involved.

It is not necessary to report a data breach if it is unlikely that the data breach will result in a risk to the rights and freedoms of the data subjects.

The so-called “Guidelines meldplicht datalekken” (Guidelines notification breach of personal data) help to determine whether or not there is an obligation for the controller to notify the AP.

Notification to the AP has to take place without undue delay and in event within 72 hours of the organization first becoming aware of the breach.

Data subjects only have to be informed if a data breach is likely to pose a high risk to their rights and freedoms (can it lead to physical, material or immaterial damage to the data subjects such as discrimination, (identity) fraud, financial damage and reputation damage). If the controller can demonstrate that this is not the case, there is no obligation to report the data breach to the data subjects involved (the organization may have to notify the AP that the data breach has not been reported to the data subjects and the reason why).

 

The following restrictions apply to the international transfer of personal data / information:

  1. If a company transfers personal data from the Netherlands to another EU country, that company has to comply with the general requirements of the GDPR. The EU is one jurisdiction in the protection of personal data.
  2. Separate rules apply to the transfer of personal data from the Netherlands to countries outside the EU, so-called third countries. Third countries: all countries outside the EU, with the exception of the countries in the European Economic Area (EEA). These are Norway, Liechtenstein and Iceland. These countries have an equivalent level of protection of personal data.
  3. Restrictions. The transfer of personal data from the Netherlands to third countries is only allowed in the following situations:
    1. the transfer is based on an adequacy decision. The European Commission (EC) can take an adequacy decision which means that the data protection in that country is of a comparable level to the GDPR. Such a decision can be made regarding an entire country but also about a specific sector within that country (e.g. in Canada, where only commercial companies are within the scope of the adequacy decision). In cases where there is an adequacy decision, no additional safeguard is required for transfer to that country or sector.
    2. the transfer is based on appropriate safeguards, which are:
      1. a standard contractual clause established by the EC;
      2. approved codes of conduct and certification, accompanied by binding and enforceable commitments from the party in the third country to apply the appropriate safeguards.
      3. a transfer based on binding corporate rules (BCR), which are global privacy policies that apply within organizations for the transfer of personal data to countries without an adequate level of protection (third countries) worldwide. All employees and entities within the group (including the Dutch and European offices) must adhere to the privacy policy.
    3. If it is not possible to transfer to third countries based on one of the aforementioned safeguards, then you can invoke one of the exceptions based on article 49 GDPR:
      1. express consent data subject;
      2. transfer is necessary for the performance of a contract between the data subject and the controller and another natural or legal person;
      3. transfer is necessary for the establishment, exercise or defense of legal claims;
      4. transfer is vital for the data subject or for other persons, if the data subject is physically or legally unable to give his consent;
      5. transfer was made from a register established by law that is intended to inform the public (e.g. data from the cadastre or trade registers.

 

Do the data protection laws in this jurisdiction have “extra-territorial effect” (i.e. do they apply to organisations outside this jurisdiction)?

With regard to its geographic scope, the GDPR combines the principles of establishment, market place and territoriality.

Pursuant to the principle of establishment, the GDPR is applicable for processing activities carried out in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing itself takes place in the EU.

Pursuant to the principle of the market place, the GDPR is applicable for the processing of personal data of data subjects situated in the EU by a controller or processor who is not situated in the EU, where the processing activities are related to (i) the offering of goods or services to such data subjects situated in the EU, irrespective of whether a payment of the data subject is required; or (ii) the monitoring of their behaviour as far as their behaviour takes place within the EU (principle of the territoriality).

 

The following rules specifically deal with marketing:

The Telecommunicatiewet and the GDPR.

Regarding telemarketing, on 1st March 2020 the “Wet van 10 februari 2021 tot wijziging van de Telecommunicatiewet in verband met het invoeren van een opt-in-systeem voor het overbrengen van ongevraagde communicatie voor commerciële, ideële of charitatieve doeleinden aan natuurlijke personen” (“Act of Law of 10 February 2021 amending the Telecommunications Act in connection with the introduction of an opt-in system for the transmission of unsolicited communications for commercial, idealistic or charitable purposes to natural persons”), was published in the official journal (“Staatsblad”). This act will come into force on July, 1 2021.

This act introduces an opt-in system for telemarketing. The starting point of this new system is that telemarketing to natural persons may not take place unless they have given explicit permission to such marketing or there is a customer relationship between the parties.

The five most important points of the amendment:

  1. the current opt-out system will be replaced by an opt-in system (the issuing of the opt-in needs to be demonstrated and whether consent has been validly is subject to the requirements of the GDPR);
  2. the requirements to establish a customer relationship are aligned with the rules on email marketing. This means that an opt-out must also be offered for telemarketing at the time of collection;
  3. the definition of a customer relationship is being expanded for charities. This means that there can also be a customer relationship with sympathizers who have done voluntary work or attended an event;
  4. the maximum customer term is 3 years after the agreement (or donorship) (Telemarketing Code). This will remain the case, but the new law offers the option of setting a different shorter term later; and
  5. the start of the customer term will remain regulated in the Telemarketing Code. It starts at the end of a service or donorship or after the last purchase of a product.

 

Do different rules apply to business-to-business and business-to-consumer marketing?

No.

 

The following rules specially deal with electronic marketing (for example, by email, text message, WhatsApp message, online ads etc):

The “Telecommunicatiewet” (Telecommunications Act).

The ePrivacy directive has been implemented in the “Telecommunicatiewet” and currently forms, together with the GDPR, the legal framework and focuses specifically on the processing of personal data for electronic means of communication, including the use of cookies and telemarketing.

The ePrivacy directive will be revised/replaced by the e-Privacy regulation and will extend the scope to over the top services: online services where electronic communication is offered such as Whatsapp and will also represent the next step in the development of the cookie rules. On 9th March 2021, the European Data Protection Board adopted a statement 03/2021 on the ePrivacy Regulation.

The European regulators emphasize among other things that the so-called cookie walls must be prohibited explicitly, because the consumer cannot make a free choice without an alternative without tracking cookies.

When the e-Privacy Regulation comes into force, the AP will become the sole supervisory authority.

Currently the Dutch Authority for Consumers and Markets (ACM) supervises the e-Privacy Directive.

Effects:

  1. Permission will be required to approach a person for commercial, charitable or non-profit telephone calls, because the current opt-out system will be replaced by an opt-in system. This means that organizations have to register both their opt-ins and opt-outs (to demonstrate that valid consent has been obtained or that a customer relationship has been established). Furthermore, organizations may no longer contact a person by telephone if their consent has been withdrawn.
  2. As a result of organizations probably having less leads, it will be very important to optimally reach all such leads (so the use of data becomes very important).
  3. It will be more difficult to generate leads and a strategy could be to generate them in combination with a payment relationship, for example. low-threshold trial subscriptions, which can create a customer relationship.

 

The following rules specifically deal with cookies:

Telecommunicatiewet (Telecommunications Act) see above.

Regarding tracking cookies (in combination with other data collected about the website visit), not only the Telecommunications act is applicable, but the GDPR as well.

  • Functional cookies are allowed.
  • The use of analytical cookies is limited: cookies to improve a website are permitted, but such cookies may have little or no effect on the privacy of visitors.
  • All other cookies are only allowed if prior consent from the website visitors has been obtained.
  • Cookie walls are not allowed under the GDPR.

 

The consequences of non compliance with data protections laws (including marketing laws) are:

There are two categories of violations and corresponding maximum fines:

  1. If a controller fails to fulfil one of its obligations the AP can impose a fine of up to 10 million euros, or a fine of 2% of the worldwide annual turnover, if that amount is higher.
  2. If a controller violates the principles or foundations of the GDPR or the privacy rights of the data subjects, then the AP can impose a fine of up to 20 million euros or a fine of 4% of the worldwide annual turnover, if that amount is higher.

 

In broad terms, multinational organisations should be aware of the following key factors if they process personal data / information from individuals within this jurisdiction, without being located there:

The GDPR has a very wide (territorial) scope.

The GDPR applies to the processing of personal data regarding data subjects located in the Netherlands by a multinational as a controller or processor located outside the EU, if the processing relates to:

  1. The offering of goods or services to these data subjects regardless whether a payment is required by the data subjects; and
  2. The monitoring of the behaviour of data subjects insofar as this behaviour takes place in the EU.

Please note, that if in the abovementioned situation(s) the GDPR is applicable, the multinational located outside the EU is obligated to appoint a representative. This is a contact person for EU citizens and authorities regarding questions or complaints.

 

Multinational organisations should be aware of the following upcoming data protection developments:

At a European level, the EU is currently discussing the ePrivacy Regulation which will be repealing the current Privacy and Electronic Communications Directive (Directive 2002/58/EC). However, as of today there is still no fixed date by when this new Regulation will come into effect.

 

 

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Barbara Goossens
Bosselaar & Strengers Legal Partners
The Netherlands