Privacy and e-commerce experts debate controversial cookie legislation

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12 September, 2011

On September 8th, the seminar ‘Privacy: the current status’ was held in The Hague and organized by ECP EPN, platform for internet society. The latest developments were discussed regarding privacy protection in the Netherlands and Europe. The main focus were the amendments to the Dutch Telecommunications Act, which included stricter regulations regarding cookies. The new telecom law prescribes – in short – that privacy law applies to the use of all cookies and that cookies may only be placed with the “unambiguous consent” of the consumer. 

Bart Schermer, partner at Considerati and privacy expert, was the chairman and led the seminar during the day. Keynote speakers such as Steve Kenny eBay / Marktplaats and Anne-Wil Duthler, Senator for the Dutch liberal party VVD, shared their views on privacy and cookies with the audience. Steve Kenny mentioned the enforcement of stringent opt-in rules (such as unambiguous consent) might risk distorting the Internal Market and could lead to legal uncertainty as the stricter opt in rules apply on anyone established in the Netherlands.  Therefore, he argues for a less stringent approval for placing cookies; ‘informed consent’. Anne-Wil Duthler emphasized consumers should recover their control over the personal data they store and she mentions Google’s Data Liberation as a great example. Furthermore, she argues that companies in return should actively take care of sustaining their information management. 

A clear privacy policy is something companies can work on. During the seminar the use of Privacy Impact Assessments was mentioned as an example thereof. With Privacy Impact Assessments, the privacy risks of products or services can be identified and companies can take specific actions to manage these risks. The consumer’s confidence in privacy protection increases as a result thereof. Another option that was mentioned for the industry to prevent privacy problems is the so-called ‘Privacy by Design’. In that case, already during the development of a product or service the company takes the data protection and privacy needs of consumers into account.

The seminar ended with a debate on the Dutch Telecom law, with panelists Jitty van Doodewaerd, Privacy Officer of the Dutch Dialogue Marketing Association (DDMA), Maurice Wesseling, policy advisor of the Dutch Consumers federation (Consumentenbond), Jeroen Terstegge and Milica Antic, attorney at SOLV attorneys. Bart Schermer asked the panelists to share their view on certain statements. One of the statements was: “The new cookie legislation will benefit the privacy of the consumer”. All the panelists agreed on this, but also agreed on the fact that the implementation thereof might not be consumer-friendly. Furthermore, all panelists agreed that the Dutch implementation of the cookie directive is useless in an international context.

Other discussed statements were:
-  There should be a global privacy treaty
-  A broad duty to report data breaches should be implemented as soon as possible
-  The privacy legislation is not maintainable

You can read the full program here.

Nathalie Falot

Senior Legal Consultant

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