30 September 2002

Gerrit-Jan Zwenne

There is a lot to do about unsolicited commercial email (‘spam’) in the Netherlands. Recently, the Court of Appeal in Amsterdam reversed the judgment of the District Court in which at the request of XS4ALL a prohibition on spam was imposed on the direct marketing company Ab.fab. According to the court, ‘spamming’ is allowed if the recipients have the opportunity to indicate that they do not wish to receive it. This will change shortly as a result of the new e-communications privacy directive that has been adopted recently.


Spam is the popular name for unsolicited electronic commercial communications. The name stands for commercial or charitable messages that are sent via electronic mail (such as email and SMS) to persons who have not asked for it. Well-known examples are email messages with recommendations for probably not fully harmless weight loss products (“be-slimmer weight loss products”) and high performance preparations (“natural marriage enhancers” and “new penis enlargement pills”) and also the SMS-messages that were spread some time ago on a large scale by some providers of sex lines (“Call Me! 1 €pm”).

Spam leads to a lot of nuisance. Users are annoyed because their mailboxes are polluted with messages they have not asked for and which they do not need. Internet providers are annoyed too: the large quantities of traffic the spammers generate result in networks becoming slower and obstructed. And this finally annoys everyone. This explains why there are so many anti-spam feelings.[1]

The core of the problem is that only a very small part of the costs of spam actions are borne by the spammer responsible for it. An opportunistic person can easily reach hundreds of thousands or even millions of Internet users by means of special ‘spamware’. Consequently for such spammers, who are often paid on the basis of the number of messages sent or read, there is little incentive to limit the extent of their traffic.

On the other hand there are the costs which those internet users bear to download all these unsolicited messages. In a report from the European Commission of last year it was calculated that the download costs of an average Internet user with an ordinary narrowband Internet connection (max. 64 kb/s) may amount to about € 30 per year. With around 400 million users worldwide the total amount will be more than € 10 billion.

Current rules for spam

What rules exist for spam? At this moment, article 11.6 of the Dutch Telecommunications Act (TA) as well as article 7:46h of the Dutch Civil Code (CC) include rules for ‘unsolicited calls for commercial, idealistic or charitable purposes’, the statutory term for messages that are not sent upon request. One regulation originates from the Telecoms Privacy Directive (97/66) and the other from the Distance Selling Directive (97/7). Both regulations distinguish between calls which are established without human intervention and calls which are established with human intervention. Calls without human intervention comprise faxes and so-called automated calling devices. These are automated systems, which are not so commonly used anymore, that call subscribers and subsequently play a recording with a commercial message, often spoken by a well-known person. On the basis of the articles 11.7, first paragraph, TA and 7:46h, second paragraph, CC these kind of calls are only allowed if the subscriber has previously given his permission. In other words: an ‘opt-in system’ applies.

In the Netherlands there has been some discussion about the question whether for unsolicited email and SMS-messages prior permission is required or that it is enough that an ‘unsubscribe opportunity’ is offered. It was a legal question whether email and SMS must be regarded as a call system without human intervention, for which the act requires opt-in, or as a call system with human intervention, for which only an opt-out is required.[3]

XS4ALL – Ab.fab

Therefore, the question whether there is an automated call system with or without human interference in case of spam was an important legal question in the interlocutory proceedings that XS4ALL, a Dutch Internet Service Provider, had initiated against the direct marketing company Ab.fab.[4] In these proceedings, XS4ALL adopted the standpoint that the sending of electronic mail falls under using a call system without human interference, so that an opt-in is required for this and Ab.fab first has to obtain permission from the persons to whom it wants to send the email messages.

As there is no conversation or interaction with a seller in case of email and SMS, the standpoint of XS4ALL is obvious at first. However, a closer study of the parliamentary history and the European directives provides another view. The European legislator has explicitly meant that the concept ‘call systems with human interference’ must be interpreted in a limited way and that this limited interpretation does not include electronic mail (email and SMS).

An important and, according to the court, decisive argument can be derived from the Distance Selling Directive (97/7). In Annex 1 to this directive an indicative listing is given of ‘techniques for distant communication’. This includes not only the ‘telephone without human interference’ (call robot, audiotext) but also ‘electronic mail’ as a separate category. This can only mean that the concept ‘call robot without human interference’ does not imply ‘electronic mail’. The conclusion can only be that the legislator has meant that the strict opt-in requirement, applicable to call robots without human interference, is not applicable to electronic mail. This is why the less strict opt-out requirement applies to this last category.

This is confirmed by the parliamentary history of the Distant Selling Act[5] and more recently by the treatment of the bill for the implementation of the Electronic Commerce Directive (2000/31). In the explanatory memorandum to the last bill it is remarked about the articles 11.7 TA and 7:46 CC that “sending email in the Netherlands is not equal to an automatic call machine without human interference, so that the ‘opt-out’ regulation in both articles is applicable to communication via email”.[6]

In the XS4ALL-Ab.fab proceedings, the court could only decide that these statutory provisions in any case did not include an obligation on the basis of which Ab.fab would only be able to send commercial email unsolicitedly after the permission thereto of the recipients. As the other arguments that XS4ALL advanced were not relevant according to the court, the court decided that Ab.fab was allowed to send unsolicited commercial email if its recipients are offered a clear and free opt-out opportunity.

New rules for spam

The ruling of the court in Amsterdam was disappointing for XS4ALL. In the press release the ISP says that it will gain advice about the possibilities to appeal to the supreme court. This does not seem very useful for the legal practice, as on 30 May 2002 a new European directive was adopted which includes new and stricter rules for unsolicited electronic communication for direct marketing purposes.

There has also been a lot of discussion on these new rules for spam in the European Parliament and in the Commission. In the first bill for the directive, the Commission departed from an opt-in without any special stipulations for the use of automatic call systems without human interference, as well as for faxes and email.[7] The so-called Article 29 Working Party, the consultative body of European privacy supervisors,[8] as well as the Economic and Social Committee supported this approach. This last body made the remark that companies within the EU will fall in arrears as a result of the opt-in regulation with regard to companies outside the EU.[9]

Subsequently, the European Parliament urged for a more balanced regulation in which an opt-out would apply to existing customer relationships. A compromise was finally opted for on that basis. The main rule is that prior permission of the recipient is required for the sending of unsolicited commercial communication that is sent by means of automated call systems without human interference (‘automatic calling machines’), fax or electronic mail.[10] In this Directive, the concept of ‘electronic mail’ is interpreted broadly, i.e. as any text, voice, sound or image message that is sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment recipient until it is collected by the recipient.

A quite important exception applies to communication to recipients with whom the sender already has a customer relationship. When the sender has obtained the electronic mail address (‘electronic contact details for electronic mail’) from the customer himself, this sender is permitted to use that address for sending marketing messages concerning his own products and services. A condition is though that a clear and free opt-out opportunity is offered to the recipients.[11] This opt-out opportunity must be included in any message sent. Furthermore, the directive prohibits the omission or hiding of the identity and contact details of the sender.[12]

The ePrivacy Directive is the final piece of the new regulatory framework for electronic communication. It has been published on 31 July 2002 and must be implemented before 31 October 2003.


  • Bergfeld & Lodder, ‘De moeizame strijd tegen spam’ (‘The difficult struggle against spam’), NJB 2002, p. 1050-1057 (in Dutch)
  • Dommering, Handboek telecommunicatierecht (‘Telecommunications Law Manual), The Hague: Sdu 1999, p. 627-631 (in Dutch)
  • Gauthronet & Drouard, ‘Unsolicited Commercial Communications and Data Protection, Commission of the European Communities, January 2001
  • Lodder & Suen, ‘SPAM: verbod, opt-out, opt-in? – de stand van zaken’ (‘SPAM: prohibition, opt-out, opt-in? – the stae of the art’), Computerrecht 2002, p. 34-35 (in Dutch)
  • Singewald, ‘Privacy en direct marketing’, in Berkvens & Prins (red.), Privacyregulering in theorie en praktijk (‘Privacy Regulation in theory and in practice’), Deventer: Kluwer 2002, p. 309-324 (in Dutch)
  • Zwenne, ‘Hoofdstuk 11 Telecommunicatiewet’ in Schmidt e.a. (red.), Tekst en Commentaar Telecommunicatiewet, Deventer: Kluwer 2001, p. 175-193 (in Dutch)

[1] See for example <>
[2] S. Gauthronet & E. Drouard, Unsolicited Commercial Communication and Data Protection, Commission of the European Communities januari 2001 <>
[3] Zwenne (T&C Tw) art. 11.7 not. 3.
[4] Resp. ELRO AD9917 (KG 02/183 P) and ELRO AE5514 (468/02 SKG and 543/02 KG)
[5] Bill Amendment of Book 7 of the Dutch Civil Code to meet directive no. 97/7/EC of the European Parliament and the Council of the European Union of 20 May 1997 concerning the protection of the consumer for distant agreements (OJ EC L 144) Parliamentary Documents II 1999-2000, 26861 no. 1-139a; Bulletin of Acts and Decrees 2000, 617 and Bulletin of Acts and Decrees 2001, 25.
[6] Parliamentary Documents II 2002-2002, 28197, no. 3 p. 43.
[7] Bill to Directive COM (2000)385 def., 2000/0189(COD) 12 July 2000.
[8] Article 29 Working Party, Advice 7/2000 on the bill for a Directive of the European Parliament and the Council submitted by the European Commission concerning personal data processing and privacy protection electronic communication sector of 12 July 2000 COM (2000) 385, (WP36) 2 November 2000 <>.
[9] Opinion ESC 2001/C123/11-25 April 2002.
[10] Art. 13, first paragraph, e-Privacy Directive.
[11] Art. 13, second paragraph, e-Privacy Directive.
[12] Art. 13, fourth paragraph, e-Privacy Directive.