The Combating of Unsolicited Advertising 

Direct marketing purposes
The purpose of direct marketing is to enable or maintain a direct relationship between you and an organisation. The term ’direct marketing’ does not include unaddressed door-to-door distribution and market research. If, however, a bank were to send you a letter containing offers of new products that have been selected for you, then this does constitute direct marketing. If you receive a telephone call during your evening meal by a telecommunications provider offering you a subscription, this is also a type of direct marketing.

Conditions governing the use of personal data for direct marketing purposes
For an organisation to contact you for direct marketing purposes, it will first of all require your personal data. In many cases, it will already be in possession of such data, as you are already one of its customers. If that is not the case, an organisation can purchase or rent your data from a third-party organisation.

The Wet bescherming persoonsgegevens (Wbp) [Dutch Data Protection Act] stipulates what is and is not permitted when handling your personal data. This act stipulates which rights you have and which obligations organisations have that use your data in order to contact you with unsolicited advertising. The College bescherming persoonsgegevens (CBP) [Dutch Data Protection Authority (Dutch DPA)] is responsible for supervising compliance with the Wbp.

You address data may be rented out or sold if you have authorised this or if the organisation has a justified interest in such use. These are the two main grounds underlying the trade in addresses and the use of personal data for direct marketing purposes. Further information about these can be found on the fact sheet entitled The Disclosure of Your Personal Data [Verstrekken van uw persoonsgegevens ].

In addition to the Wbp, the Telecommunicatiewet (Tw) [Telecommunications Act] also plays an important role in the case of certain types of advertising. This act contains all regulations in the field of the electronic communications sector. Advertising via the telephone and by e-mail also fall under the scope of this act. Chapter 11 of the Tw includes stipulations governing the use of personal data relating to subscribers and users by communications providers, among others. The Onafhankelijke Post en Telecommunicatie Autoriteit [Independent Post and Telecommunications Authority] and the Dutch DPA are both monitor compliance with chapter 11 of the Tw.

Justified interest
Your personal data may only be used if this is necessary in order to look after the justified interest of the organisation or that of another organisation to which the data are being supplied. What this means is that your data may be used within the context of normal business activities or the everyday management of the organisation. If the purpose of an organisation is the trading in addresses, this activity will, in most cases, fall within the normal business activities of the organisation. This does not mean, however, that they are permitted to contact you for advertising purposes without your consent. The organisation must first of all consider whether its interest in the use of your data is equal to your rights and interests, including your interest that your personal data should not unnecessarily be distributed and your right not to be harassed by unsolicited advertising material. Aspects that may play a part when weighing up the interests of both parties include the data actually being processed (do they consist only of an individual’s name, address, postcode and place of residence, or are further data included?), the relationship with the customer (is the data subject a regular or an occasional customer?), how well-informed is the customer and how easy it is for him to register his objection to the processing of his data. Chapter 4 of the Dutch DPA study Koning klant. Het gebruik van klantgegevens voor marketingdoeleinden [The Client is King. The use of customer data for marketing purposes] contains detailed examples of how these interests are evaluated. The organisation must be able to demonstrate to you and, if necessary, also to the Dutch DPA or the courts that it has considered the customer’s interests.

Consent
If the organisation has no justified interest when using your data, you may be asked for your unequivocal consent for the use of your data. ‘Unequivocal’ means that there must be no doubt as to the specific use that will be made of your personal data and for which you have given your consent. This means that you must be informed effectively and in advance as to the uses to which you are giving your consent. You may withdraw your consent at any time.

Obligation to provide information
An organisation is not only obliged to inform you in all cases that require your consent, but it must also do so as soon as it has made use of your data. The organisation must inform you about who it is, the purpose for which it will use your data and what you can do if you do not agree. The precise moment at which an organisation is required to inform you depends upon the manner in which it obtained your data. If the organisation obtains the data from you personally, it must inform you of this in advance. If the organisation obtains your address from another organisation and uses this for advertising purposes, however, you must always be informed as soon as you receive unsolicited advertising material. Further information about the duty of disclosure can be found in the fact sheet entitled Your right to Information [Uw recht op informatie].

What happens if the data are incorrect?
You have the right to know what personal data an organisation holds about you, what these are being used for and from where these were obtained. You can request this information using the model letter that the Dutch DPA developed for this purpose. If an organisation makes use of your data, it must provide you with a summary of your personal data within four weeks of your request to access to the data. It is also required to state the purpose for which the data are being used, who has received the data and from where the data have been taken. In return for providing this information, the organisation is entitled to make a charge not exceeding € €0.23 per page, up to a maximum of € € 4.50. Further information about the right to view personal data can be found in the fact sheet entitled Access to Your Personal Data [Inzage in uw persoonsgegevens].

You are also entitled to request that data be corrected. This means that you may ask to have your personal data corrected, supplemented, erased or blocked. Data may only be corrected if they are incorrect, incomplete or not relevant for the purpose for which they are being used. Further information about the right to correct data can be found in the fact sheet entitled The Correction of Your Personal Data [Correctie van uw persoonsgegevens].

What happens if you do not wish to receive direct mail or telephone calls?
As trading in addresses and the use of personal data for direct marketing purposes is, in many cases, permitted, the Wbp also grants data subjects the right to lodge their objection. Invoking this right enables you to prevent your personal data from being sold or rented out. You may also avail yourself of this entitlement in order to prevent telemarketing and direct mail. If you lodge your objection to direct marketing, you are not required to state the reason for this objection. An organisation must respect your objection at all times and may not impose a charge for honouring this objection. You should ask the organisation to confirm your complaint in writing within two weeks. If you lodge your objection, the organisation may decide to mark your data or to include it in a non-mailing list.

How can you lodge your objection?
In practice, it is best if you lodge your objection in writing with the relevant organisation. You can use the Dutch DPA’s model letter for this purpose. If an organisation does not agree with your complaint and you wish to take the matter to court, you must demonstrate what steps you yourself have taken. If the organisation does not respond to your request or the response is not to your satisfaction, you may ask the Dutch DPA to mediate. Even if you ask the Dutch DPA to mediate, the Dutch DPA will first of all ask you to submit a copy of any correspondence. Further information about this can be found in the fact sheet Mediation by The Dutch DPA in Respect of Your Data [Bemiddeling door het CBP inzake uw gegevens].

What can you object to?
Objection does not always mean that an organisation may no longer use your data altogether. The only restriction that then applies is that the data no longer may be used for direct marketing purposes. If you, for example, as a subscriber to a weekly magazine, lodge an objection to the publisher of the magazine, the publisher is still entitled to make use of your data in order to send the magazine to you and to charge the applicable subscription charge. However, the publisher is no longer permitted to send you any offers or to sell or rent out your data.

How should you be informed of your right to object?
An organisation must inform you of your right to object:

• In every advertising message. This may be done, for example, by providing a freepost address, a 0800 telephone number or an e-mail address, to which you can send a message lodging your objection.
• By means of a general announcement, in the event that the organisation supplies your personal data, which it has obtained itself, to a third-party organisation or in the event that it is making use of your personal data on behalf of third-party organisations. A general announcement is understood to involve the placing of an advertisement in a newspaper, newsletter or door-to-door newspaper. When data are being supplied to others on a regular basis, the organisation is obliged to notify you of your right to object at least once a year.

Types of advertising
There are a number of different channels that organisations can use in order to contact you with offers:

1. Door-to-door advertising
   This takes the form of leaflets that are placed in your letter box. They are not addressed to you specifically, as the leaflets involved do not carry your name or address. Neither the Wbp nor the Tw, which contains a description of the rights and duties apply in the case of door-to-door advertising. The Reclame Code Commissie [Dutch Advertising Code Authority] has drawn up the Code brievenbusreclame, huissampling en direct response advertising [Code for door-to-door advertising, home sampling and direct response advertising] and the Code verspreiding ongeadresseerd reclamedrukwerk [Code for the distribution of unaddressed advertising material]. These codes contain rules and regulations governing the content of advertising and its distribution.
2. Addressed advertising material
   This too takes the form of leaflets that arrive via your letterbox, but they are addressed specifically to you, in that your name and/or address are included. Advertising material that is addressed to the recipient is also known as direct mail. This type of advertising is subject to the Wbp, but not to the Tw. In addition, the Reclame Code Commissie has also drawn up the Code brievenbusreclame, huissampling en direct response advertising [Code for door-to-door advertising, home sampling and direct response advertising]. This code contains rules and regulations governing the content of advertising and its distribution.
3. Telephone
   Organisations may contact you by telephone either via your landline or mobile telephone number. Contacting individuals by telephone for advertising purposes is also known as telemarketing. No consent is required for this type of advertising, unless you have indicated in advance that you do not wish to be contacted. The organisation is, however, obliged actively to inform you during each telephone conversation that you are entitled to lodge an objection. Telemarketing is subject both to the Wbp, as well as to the Tw. Telemarketing is also required to comply with the Code Telemarketing [Telemarketing Code], which is managed by the Reclame Code Commissie.
4. Fax, e-mail, MMS and SMS
   Organisations may contact you by fax, e-mail, MMS or SMS. Unsolicited contact by e-mail or mobile telephone (SMS or MMS) is also known as spam. Spam also includes calling or faxing using an automatic calling system, i.e. that you are called by a computer. An automatic call made by internet telephony is also known as spit. The sending of spam or spit is forbidden, in accordance with the Tw, unless you have given consent to this or you are, or once were, a customer of the organisation. In the latter instance, the advertising in question must be for similar products or services. The organisation is, however, obliged to inform you each time that you are entitled to lodge an objection. The Reclame Code Commissie has drawn up the Code Verspreiding Reclame via e-mail [Code for the Distribution of Advertising by e-mail]. The code contains rules and regulations governing the sending of advertising messages by e-mail, which, amongst other things, impose limits as to the size and extent of the e-mail.

The combating of unsolicited advertising
In order to prevent the receipt of unsolicited advertising material, you can take the following steps:

1. Door-to-door advertising
   There are two types of stickers that you can stick to your letter box. The nee/nee [no/no] sticker indicates that you neither wish to receive unaddressed advertising material nor door-to-door or local newspapers. With the nee/ja [no/yes] sticker, you are only blocking unaddressed advertising material and you will continue to receive the door-to-door and local newspapers. The stickers can often be picked up free of charge from your local government offices.
   
   If you receive advertising material through your letter box despite displaying the sticker, you may submit a complaint to the advertiser or the distributor of the materials. Sometimes the telephone number of the distributor is printed on the material. The distributor is obliged to investigate the complaint and to provide a response within 4 weeks. If the response does not come on time or if the complaint has not been dealt with to your satisfaction, you may lodge a complaint to the Reclame Code Commissie [Dutch Advertising Code Authority].
2. Addressed advertising material
   In order to prevent direct mail in the future, you can register free of charge in a central database known as the Infofilter that you do not want to receive any addressed advertising material. You can register for the Infofilter in 3 different ways:
   • via the website of the Stichting Infofilter
   • on telephone number 0900-6661000
   • by letter to the Stichting Infofilter [Infofilter Foundation], Postbus 666, 1000 AR Amsterdam.
   Your data will remain in the database for a period of 5 years and applies to all companies that are linked to Infofilter. After this period, you must re-register. As the next of kin of a deceased person, you may also use Infofilter to register that you no longer wish to receive any advertising material in the name and address of the deceased individual.
   
   If you still receive addressed advertising material despite having registered with Infofilter, you may make use of your right to object. You can read about how to do this elsewhere in this fact sheet.
   
   Many people ask for their personal data to be erased from a system in order to prevent unsolicited advertising. However, in order to prevent addressed advertising material, it is better to lodge your objection against the use of your data than to request that your data be erased. If it is stated in a system that your data are blocked for commercial activities, there is a good chance that you will no longer receive any addressed advertising material. This is in contrast to a situation in which your data have been erased from the system. In that case, there is a greater chance that you will still receive advertising material. As soon as an organisation rents or buys an address database belonging to another body, which also includes your data, you will be contacted once again in the form of direct marketing activities. After all, by erasing your data, the organisation no longer knows that you do not wish to receive any advertising material.
   
   If an organisation does not comply with the Code brievenbusreclame, huissampling en direct response advertising [Code for door-to-door advertising, home sampling and direct response advertising], you may lodge a complaint to the Reclame Code Commissie.
3. Telephone
   In order to prevent telemarketing in the future, you can register free of charge in a central database, known as the Infofilter, that you do not wish to receive any offers by telephone. You can register in the Infofilter in 3 different ways:
   • via the website of the Stichting Infofilter
   • on telephone number 0900-6661000
   • by letter to the Stichting Infofilter [Infofilter Foundation], Postbus 666, 1000 AR Amsterdam.
   Your data will remain in the database for a period of 5 years and applies to all companies that are linked to Infofilter. After this period, you must re-register.
   
   If you receive offers by telephone despite having registered in the Infofilter, you may state during the conversation that you do not wish to receive such calls. If you are not satisfied with the response to that request, you may lodge a complaint to the Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA) [Independent Post and Telecommunication Authority] using a Telemarketing complaint form from the Consuwijzer [ConsuGuide].
   
   If an organisation does not comply with the Code Telemarketing [Telemarketing Code], you may lodge a complaint to the Reclame Code Commissie [Dutch Advertising Code Authority]. You may also lodge your complaint to the Stichting Consumentenlijn Telemarketing [Telemarketing Consumer Line Foundation]. If you no longer wish to be contacted by market researchers on the telephone, you can register with the Stichting Infofilter [Infofilter Foundation]. You can also de-register for contact by market researchers via the website www.uwmeningtelt.nl. This website is an initiative of the MarktOnderzoekAssociatie (MOA) [Market Research Association]. The MOA is an information centre for market research and opinion polls, an association that brings together providers and users of market research.
   
   Mr. Heemskerk, the State Secretary for Economic Affairs announced in July 2007 that he wishes to convert the Infofilter into a legally obligatory ‘don’t call me’ register. His plan is for this measure to take effect at the beginning of 2008. In due time, the Dutch DPA will amend this fact sheet.
4. Fax, e-mail, MMS and SMS
   In the case of unsolicited contact via fax, e-mail, MMS and SMS, you can lodge a complaint to OPTA via the website. You may also submit a complaint about your provider to the Geschillencommissie Telecommunicatie [Telecommunications Disputes Committee]. Your provider must however be a member of the Geschillencommissie. For complaints about violating the Code Verspreiding Reclame via e-mail [Code for the Distribution of Advertising by e-mail], you can contact the Reclame Code Commissie directly.

Table of unsolicited advertising

Please consult the fact sheet for further details about the above table

Addresses