Data Protected - Netherlands

Last updated July 2018

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

ePrivacy | Marketing and cookies

National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone

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General | Data Protection Laws

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National Legislation

General data protection laws

The General Data Protection Regulation (EU) (2016/679)(“GDPR”).

The Dutch GDPR Implementation Act (Uitvoeringswet Algemene Verordening gegevensbescherming) (“UAVG”) applies in the Netherlands from 25 May 2018.  The former Personal Data Protection Act (Wet bescherming persoonsgegevens) has ceased to apply. The UAVG is to a large extent identical to the old Dutch Personal Data Protection Act.

 

Entry into force

The GDPR applies from 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

Dutch Data Protection Authority (Autoriteit Persoonsgegevens) ("DPA"). The Autoriteit Persoonsgegevens was formerly known as the College Bescherming Persoonsgegevens.

Mailing address:

Autoriteit Persoonsgegevens
Postbus 93374
2509 AJ Den Haag
The Netherlands

Visiting address:

Bezuidenhoutseweg 30
2594 AV DEN HAAG
The Netherlands

https://autoriteitpersoonsgegevens.nl/

The DPA will represent the Netherlands on the European Data Protection Board.

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR or the UAVG.

Exemptions to notification

Not applicable.

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Scope of Application

What is the territorial scope of application?

The GDPR applies the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

As regards its territorial scope, the UAVG primarily applies to the processing of personal data in the context of the activities of the establishment of a controller or a processor in the Netherlands.

It will also apply to the processing by a controller or processor not established in the Netherlands of the personal data of data subjects who are in the Netherlands, where the processing activities are related to: (i) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Netherlands; or (ii) the monitoring of their behaviour to the extent that their behaviour takes place within the Netherlands.

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited. 

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

The UAVG provides for some national derogations. For example, the scope of automated individual decision-making is extended. Furthermore, the GDPR rules will, in principle, not apply to: (i) processing of personal data relating to criminal investigations; or (ii) processing exclusively for journalistic purposes or for the purpose of academic, artistic or literary forms of expression.

In addition, it will not be possible to withdraw consent to process personal data for journalistic purposes, for example to withdraw consent to publication or broadcasting of an interview once given.

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Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as IP addresses and cookie identifiers.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the Data Protection Directive.

Are there any formalities to obtain consent to process personal data?

Obtaining consent will become much harder under the GDPR. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The Article 29 Working Party has issued Guidelines on Consent (WP259).

Under the UVAG, it is not possible to withdraw consent to the processing of personal data for journalistic purposes, for example to withdraw consent to the publication or broadcasting of an interview once given.

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

The UAVG does not provide for a different age limit and the age at which a child can provide a valid consent. Thus the age limit is 16 years old.

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Sensitive Personal Data

What is sensitive personal data?

Sensitive personal data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Sensitive personal data may only be processed if a condition for processing sensitive personal data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the field of employment law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

The UAVG provides for some specific national derogations regarding  the processing of sensitive personal data. It allows such processing under specific conditions, including: (i) processing of data necessary for scientific or historical research purposes or statistical purposes; (ii) processing of data revealing racial or ethnic origin; (iii) processing of data revealing political opinions in a public capacity; (iii) processing of data revealing religious or philosophical beliefs for purposes of mental care; or (iv) processing of genetic data if such processing is related to the person from which these data are obtained from.

The UAVG also allows the processing biometric data for authentication and security purposes (e.g. biometrics-based access systems to computers and buildings).

Are there additional rules for processing information about criminal offences?

It is only possible to process information about criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law.

The UAVG authorises the processing of information about criminal convictions or offences, inter alia, in the following circumstances: (i) processing required to safeguard national or public security; (ii) processing undertaken by Dutch law enforcement; (iii) processing undertaken by or on behalf of a public authority, provided that such processing is necessary for the performance of the duty of such public authority, and there are adequate safeguards that ensure that the private life of the data subject is not disproportionately impacted; (iv) processing necessary with a view to the treatment or care of the data subject ; (v) criminal record checks on applicants in some cases; (vi) processing in accordance with the Dutch Works Councils Act, where such criminal data relates to employee; or (vii) processing by licensed security or criminal investigations organisations in certain situations.

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing sensitive personal data on a large scale (including processing information about criminal offences).

The UAVG does not provide for additional conditions regarding the appointment of a data protection officer.

What are the duties of the data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

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Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing sensitive personal data on a large scale; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV).

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above. 

The Dutch DPA has drawn up and published a (non-exhaustive) list of examples of types of “high risk” processing for which a Data Protection Impact Assessment (gegevensbeschermingseffectbeoordeling) must be carried out prior to processing. The list includes a range of examples of “high risk” processing including matters such as the processing of genetic data or CCTV usage.

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Rights of Data Subjects

Privacy notices

A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

The Article 29 Working Party has issued Guidelines on Transparency (WP260).

In the Netherlands, there is no obligation for privacy notices to be in Dutch and may therefore be provided in English.

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex. 

Rights to data portability

Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

The Article 29 Working Party has issued Guidelines on data portability (WP242).

Right to be forgotten

A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data. 

Objection to direct marketing

A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes the processing of their personal data for profiling purposes.

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).

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Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. 

Specific rules governing processing by third party agents (processors)

A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.

The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).

Specific notice of breach laws apply to the electronic communications sector under the Privacy and Electronic Communications Directive

Moreover, controllers in certain sectors may be required to inform sectoral regulators of any breach. For example, financial services firms may be required to inform the Dutch National Bank and/or the Dutch Authority for the Financial Markets of any breach.

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. Transfers can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (ii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.

The position is broadly the same as under the Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.

The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).

Notification and approval of national regulator (including notification of use of Model Contracts)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer. 

For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority that will cover transfers from anywhere in the EU.

In the Netherlands, binding corporate rules have been approved for ABN AMRO Bank N.V., ADP (controller and processor), Akzo Nobel N.V. (controller), Align Technologies B.V. (controller and processor), Arcadis (controller), BakerCorp International Holdings Inc. (controller), CISCO, D.E. Master Blenders 1753 ex Sara Lee International B.V., Koninklijke DSM N.V. and affiliated companies, ING Bank N.V., LeasePlan Corporation N.V. (controller), NetApp Inc. (controller), Nutreco N.V. (controller), Rabobank Nederland, Royal Philips Electronics, Schlumberger Ltd., Shell International B.V., TNT Express (controller), TMF Group B.V.(controller and processor), Univar (controller) and Vopak (controller).

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Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The Article 29 Working Party has issued Guidelines on administrative fines (WP253).

Imprisonment

The UAVG does not provide for potential criminal offences or imprisonment for breach of the GDPR.

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing. 

In the Netherlands regulators have the power to enter residences without the consent of the owner. Furthermore, obligations of secrecy cannot be invoked against the DPA to the extent that information or cooperation is required regarding that organisation’s own involvement in data processing.

Practice

In the Netherlands, there is no current enforcement practice in relation to the GDPR and the UAVG.

However, the breach notification obligation for personal data processing has been enforced by the DPA under the old Personal Data Protection Act since 2016. According to press reports, the DPA received more than 10,000 data breach notifications in 2017. Most of these data breaches concerned information that was sent to the wrong recipient.

The DPA considers ex officio investigations an important and effective instrument to ensure general compliance and awareness and therefore dedicates a significant amount of its limited resources to such labour-intensive investigations. The DPA issued 635 enforcement orders in 2017 and, similar to the years before, imposed no administrative fines.

Under the GDPR and UAVG, the DPA has already been undertaking investigations focused on the obligation to appoint a data protection officer within 400 Dutch public authorities and bodies. Only about one in twenty have fulfilled this obligation, but the DPA has not imposed administrative fines yet.

The Dutch Authority for Consumers and Markets (“ACM”) also actively enforces the ePrivacy provisions of the Telecommunications Act (Telecommunicatiewet). In 2014, the ACM imposed a fine of €47,500 on energy provider Essent for non-compliance with the rules on the special register (colloquially referred to as the bel-me-niet-register or “do-not-call-me-register”) that is kept by an independent third party and which contains the contact details of subscribers who formalise their objection to being called by inclusion in the register.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

As of 5 June 2012, the Telecommunications Act implements the amendments to the Privacy and Electronic Communications Directive. These provisions are enforced by the ACM.

In March 2015, provisions on cookies came into force under the Wet van 4 februari 2015 tot wijziging van de Telecommunicatiewet (“Cookie Law”).

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Cookies

Conditions for use of cookies

Under the Cookie Law, consent is needed for the use of cookies. However, there are exceptions where the cookie is: (i) placed to obtain information about the quality or effectiveness of a service provided and that only has a limited impact on the user's privacy (e.g. used for analytics purposes, unless used to create a profile for the relevant user); (ii) strictly necessary for the provision of a service; or (iii) used solely to help perform the communication.

Regulatory guidance on the use of cookies

An Explanatory Memorandum has been issued to provide examples of the sort of cookies that will be exempt from the consent requirements.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

The Telecommunications Act prohibits unsolicited communication by e-mail (as well as faxes and automated communication systems) for commercial, non-commercial or charitable purposes, unless the sender can demonstrate prior consent of the subscriber. The identity of the sender, an opt-out address and e-commerce information must be provided.

Conditions for direct marketing by e-mail to corporate subscribers

The provisions on unsolicited communication via e-mail also apply to corporate subscribers.

Exemptions and other issues

No prior consent is required for unsolicited electronic messages to corporate subscribers (legal entities or individuals acting in a commercial capacity) if contact details are used that were published and designated by the subscriber for that purpose, or where the subscriber is established in a country outside the EEA and the local rules on unsolicited communication are complied with.

The recipients of electronic contact details may use those details to transmit communications for commercial, non-commercial or charitable purposes where the similar products and services exemption applies.

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Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

The Telecommunications Act has a separate regime for unsolicited communication for commercial, non-commercial or charitable purposes by telephone. In principle, such communication is allowed, but subscribers may opt out.

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

The regime with regard to unsolicited communication via telephone does not apply to corporate subscribers but only to natural persons.

Exemptions and other issues

There is no prescribed form for opting out, but an important method is provided via a special register (colloquially referred to as the bel-me-niet-register or “do-not-call-me-register”) that is kept by an independent third party and which contains the contact details of subscribers who formalise their objection to being called by inclusion in the register. In individual calls, subscribers should be reminded of the register and be offered the possibility to object to further use of their electronic contact details and to be included immediately in the register.

The restrictions on unsolicited commercial communications do not apply where the contact details have been obtained in connection with a sale of a product or service or a donation to a charity, and these contact details are used for direct marketing of own similar products or donations to the same non-commercial or charitable organisation.

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