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IP Address
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Your Internet provider can track your Internet activity.
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Privacy Laws in Netherlands

IVPN customers in the Netherlands trust us every day with their increasing demand for privacy and security. Understand why privacy is such an important issue for customers in the Netherlands.

Data Retention by ISPs

In 2009 the Netherlands passed the EU’s Data Retention Directive into law. This means that all ISPs in the Netherlands must retain personal data of all customers, including all their web-browsing history and email data, for six months after they leave the ISP’s service[1]. Under the Dutch law telephone companies were also required to store information about all fixed and mobile phone calls for a year. The legislation further sanctioned that access to data was not subject to a prior review by a court or independent administrative authority, which was profoundly upsetting to online privacy and human rights advocates in the Netherlands.

However, the District Court of The Hague held in March 2015 that the law was unconstitutional. Interestingly, the Dutch court conceded that scrapping the data storage would have security implications, but contended that it still did not justify the breaches in privacy that the law caused. The Dutch government conceded that due to the court’s decision providers would therefore not be required to store data for the purpose of investigations. Unsurprisingly, the Dutch authorities showed serious concern that the decision would seriously affect the ability of authorities to “fight crime”[2]. The ministry is seriously concerned about the effect this will have on fighting crime.”

The Dutch court’s decision against the data retention law appeared in line with an April 2014 decision by the European Court of Justice (ECJ), which declared the European Data Retention Directive to be a gross violation of privacy rights under European law and, therefore, was declared to be invalid[3]. The ECJ made particular reference to the fundamental principle of privacy in its decision[4]. It should be noted that the Dutch government decided to ignore that decision by the ECJ and to largely maintain its national data retention law on the grounds of fighting what it called serious criminal offenses[5].

Digital Copyright Laws

Dutch copyright law is very specific. The Dutch Copyright Act (Auteurswet) grants protection to literary, artistic or scientific works. The Copyright Act does not protect an idea as such, however original it may be. What the Act does is protect only the original expression, or the original application of an idea. The Dutch have a test for originality to ascertain whether it can be copyrighted, which is whether the work “reflects an original expression and the personal imprint of the author”[6]. It is worth noting that the Dutch legislature has been taking explicit steps in recent years to protect the fair use of copyrighted material, i.e. have a more liberal, even ‘relaxed’ view with regard to making certain types of online material free from copyright restrictions[7].

Dutch case law has provided mixed messages with regard to online privacy. On the one hand, in 2005, a Dutch court ruled that ISPs should not hand over user information to content industry group BREIN, which was looking to sue a number of file-sharers, on mostly privacy grounds. The decision was seen as a victory for privacy advocates. However, in 2006 a court in Amsterdam allowed the same company, BREIN, to demand that ISPs hand over the private data of a number of BitTorrent users. The Amsterdam court stated that ISPs in the Netherlands should hand of customer data based on a two-pronged doctrine, namely that (1) it must be sufficiently plausible that an unlawful act has been committed; and (2) there must be no reasonable doubt that it was committed by the subscriber whose NAW-data (name, address and domicile info) is being requested[8].

Freedom of Speech and Censorship

Freedom of speech and freedom from censorship are enshrined rights in the constitution of the Netherlands. This is echoed in the country’s strong freedom of expression record, as seen in Freedom House’s survey Freedom of the Press: 2016, in which the Netherlands tied with three other countries as having the freest media ranking in the world[9]. There has been a tendency for the Dutch to prosecute certain types of so-called ‘hate speech’ in recent years, particularly against anti-immigrant views. This can have a chilling effect on freedom of speech and be considered censorship of a sort.

Future Trends

The Netherlands will continue to be under pressure by other European Union countries to enact data retention laws that are more focused on ‘fighting terrorism’ than preserving privacy rights. The Dutch have proven somewhat resistant to this thus far, although this could logically be reversed at some time in the future.

Our Take

The Netherlands remains more respectful of online privacy than most EU states. But the Dutch need to remain vigilant against government surveillance.

Interested in other countries? See our Comparison of Internet Privacy Laws page.

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