Cookie law latest – Dutch developments

Posted on October 21st, 2011 by

Draft legislation mandating ‘opt-in’ consent for cookies in the Netherlands was discussed before the Upper House of the Dutch Parliament earlier this month.  

An interim report of these discussions has just been published, and this makes clear that the Upper House raised several concerns about the Dutch proposals (with particularly vocal criticism from the Christian Democratic Party).  As a consequence, a large number of questions have now been referred back to the Dutch government for further consideration, with a response expected by 17 November 2011.

While it’s too early to say whether this means that the currently proposed strict opt-in requirements will get shot down, the level of concern voiced by the Upper House is, at least, an encouraging sign that a more pragmatic approach may eventually prevail in the Nethelands.  

Key highlights from questions asked of the government include:

  1. Will the cookie opt-in proposals put the Netherlands at a competitive disadvantage as against countries that adopt a more ‘lenient’ implementation of Article 5(3) e-Privacy Directive?
  2. What will the impact be on the user experience of Dutch internet users? What will the impact be of consent regimes adopted by other Member States on users’ internet experience?
  3. Which party has to obtain the unambiguous consent? Can responsibility to obtain consent be delegated from, say, a publisher to an advertiser?
  4. What cookies will fall within the scope of the proposed regulation? Are analytics cookies exempt?
  5. Can opt-in consent be given via browser settings?

Thanks to Nicole Wolters Ruckert at Kennedy Van der Laan who alerted us to this development and highlighted some of the (very valid) questions being raised.