Friday, 24 June 2011

Cookies opt-in and net neutrality law - pro-consumer Dutch approach

Many times we have mentioned on this blog changes that the harmonizing of European telecommunication law demands from the Member States (e.g. Would you like a cookie? ; Online tracking infringing e-privacy? ; Consumer friendly mobile phone contracts). This week the Dutch Parliament was busy with setting new laws that adapt Dutch law to the required European level but, more interestingly, go beyond the minimum standard of protection expected to be given to consumers.

Firstly, the Dutch Parliament decided to choose for the opt-in system as far as internet cookies are concerned (Tweede Kamer voor cookie opt-in), instead of the opt-out system that was also a possibility according to the e-Privacy Directive. This means that consumers will have to agree (in clear, certain way) to have their personal information store and traced by internet service providers. This consumer's permission will have to be given only once, and what's troubling and potentially problematic is that it has not been made clear in the law whether the consumer would have to consent to every different cookie that the service provider uses or whether it would be sufficient if he consents once to a given service provider (website) collecting and storing his information. As it has been mentioned previously, the most likely application of this regulation in practice will be by placing a cookie-icon on a browser that will inform consumers about the cookies that are being placed by advertisers on this website and will give a chance to consumers to register in a 'do-not-follow-me' register. This application is supposed to be placed on all websites by June 2012... This sounds to me, however, as an example of an opt-out system, so I wonder whether it will be seen as having complied on the new law. The internet service providers claim that this is the only practical way to inform consumers about cookies and that enforcing a demand of having to inform consumers individually about every cookie and asking them for a permission each and single time would be a logistic and practical nightmare... It remains to be seen what wins: protection of consumer interests that Dutch government seems to wish for or the practical approach of the internet service providers' representatives...

Secondly, Dutch Parliament passed a law on net neutrality (Netneutraliteit opgenomen in Telecomwet). Network neutrality means that providers of telecommunication services are not allowed to block consumers' access to network applications, charge extra for them or prioritize one application over the other. In practice, it means that mobile phone providers will have to enable consumers the same bandwidth to connect with all potential websites/internet applications that consumer might want to use, without being able to claim that access was limited or blocked due to e.g. strenuous traffic at the moment, demands of the application (e.g. some applications might slow down the entire network) or simply protection of their own interests (e.g. when consumer wants to connect to skype via their mobile phone, making a phone call via his skype account instead of via his mobile phone). This is seen as a huge progress in protection of consumers, but also of free and independent internet. Surprisingly, the European Commission has not taken a stand on this issue just yet, despite having made lots of statements about then need to keep internet open and despite having received reports on mobile phone service providers blocking consumers' access to VoIP traffic, e.g. (Net Neutrality Advocates Hope Dutch Law Will Inspire Others). Instead EC has adopted a 'wait and see' policy, which means that they will present a report on practices of blocking access to certain application by mobile operators in near future. In the meantime, it seems that according to European standards consumers 'are fine', as long as they are informed about these limitations by their mobile operators and as long as they know that they will be charged extra for making use of certain services via their phones. Dutch legislator considers that to be a too low standard and expects more protection for its own consumers with passing the net neutrality law (so far only Chile has similar regulation). Interestingly, it was the consumers' protests against a new policy of KPN (Dutch mobile operator) who intended to raise charges for its customers using Skype and WhatsApp (free text messaging) applications that led to this legislative initiative. It will be interesting to see whether Dutch example will be followed by other Member States or maybe will energize the European Commission to take more action on this subject. On the other hand, Dutch consumers might be forced to start paying more for their mobile phone subscriptions, to compensate the operators, but that is also something that will have to be watched closely in the coming months. 

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