Several stakeholders representing the online advertising, publishing and e-commerce industry have requested the Dutch Senate to substantively review the recently adopted Dutch cookie law after the summer recess.
It is generally quite normal for the Dutch Senate to merely deal with bills that have been adopted by Dutch Parliament as a formality, a so-called “hamerstuk”. However, several stakeholders (Bond van Adverteerders, Centrum voor Merk en Communicatie, Dutch Dialogue Marketing Association, Interactive Advertising Bureau, Nederlands Uitgevers Verbond, Thuiswinkel.org, PMA and VINEX) have requested (PDF) the Dutch Senate to substantively review the bill that has been adopted by Dutch Parliament. The stakeholders´ request letter contains several arguments against the adopted bill. According to these stakeholders, the adopted bill is at odds with the ePrivacy Directive´s goal of a harmonized privacy regime across the EU. This would put Dutch providers at a competitive disadvantage compared to their competitors in other Member States.
The letter refers to three observations made by Kennedy Van der Laan in an analysis of the adopted bill. The three observations the letter refers to are:
- the assumption of processing personal data when cookies are used for certain purposes extends the scope of the Dutch Data Protection Act (“DDPA”) to activities that do not involve the processing of personal data;
- this assumption reverses the burden of proof when cookies are used for certain purposes, even though such a reversal does not currently exist under the DDPA;
- the explanatory text of the bill seems to suggest that the aforementioned assumption is incontestable.
It is now up to the Dutch Senate to decide whether they will deal with the adopted bill as a formality or that they will pursue a substantive review.