Netherlands tightens telemarketing rules from July

The Dutch legislator is taking its next step in protecting individual consumers against unwanted commercial calls. As of 1 July, an amendment to the Dutch telemarketing rules will enter into force, under which consent of the consumer will almost always be required for telemarketing.

This follows a sustained volume of consumer complaints about unwanted commercial calls. Consumers say they feel pressured during sales conversations and are not being given sufficient time to consider offers carefully. The legislative amendment affects all organisations that use telemarketing in the Netherlands.

The new rules

The soft opt‑in exception for telemarketing is abolished as of 1 July. Until then, organisations have been permitted to use the contact details of existing or former customers to call them with promotional offers for their own, similar products or services, without prior consent. This exception ends on 1 July.

Organisations will, in principle, need to obtain valid consent before calling customers for the sale of products or services, including existing consumer relationships. Consent must be freely given, specific, informed and actively indicated, as required by the General Data Protection Regulation (GDPR). Organisations must also be able to demonstrate that consent has been obtained and when it was given.

The soft opt‑in exception will continue to apply to digital direct-marketing channels, such as email, SMS and app-based messaging. Subject to certain conditions, organisations may still approach existing customers via these routes without explicit prior consent.

Limited exceptions

The new telemarketing rules provide for a limited number of exceptions to the consent requirement. These include business-to-business (B2B) telemarketing, subject to certain conditions. Exceptions remain in place for telemarketing directed at legal entities and individuals acting in the exercise of their profession or business and for telemarketing by non‑profit and charitable organisations and by publishers of daily and weekly newspapers and magazines.

Caller ID 

Where an organisation holds the necessary consent to make telemarketing calls or falls within a permitted exceptions, telemarketing calls may proceed; however, in all cases, the caller ID must not be disabled. Anonymous calls are not permitted.

Compliance tips

The Netherlands Authority for Consumers and Markets (ACM) and the Dutch Data Protection Authority supervise compliance with the telemarketing rules. In recent years, the ACM has increasingly enforced the telemarketing rules, with several investigations currently ongoing. Organisations will be looking to start to review and adjust their organisation's processes, forms and contracts ahead of 1 July to ensure compliance with the new rules.

Mapping customer calls

A useful starting point is to identify which groups an organisation and its service providers are calling, for what purposes and on what legal basis. The question to critically assess is whether each type of call qualifies as "direct marketing". 

Purely informational or service-related calls can fall outside the scope of the telemarketing rules, but only if they contain no promotional elements such as sales stimulation, discount codes or lead generation. Where calls are intended to be non-commercial, it is advisable to adapt call scripts to reflect this. For calls that do qualify as direct marketing, the next question is whether the organisation can rely on one of the exemptions or has valid, demonstrable consent in place.

Consent records

Clear, separate tick boxes are advisable for telemarketing consent; pre‑ticked boxes or consent buried in general terms and conditions are best avoided. Online forms, apps or other existing channels can be used to allow individuals to indicate whether they wish to be contacted by telephone for commercial purposes. Keeping records of the channel, date and under which wording consent was obtained, and ensuring this information can be easily retrieved, is worth particular attention. Refreshing consent at regular intervals can help ensure it remains current and reflective of the recipient's actual wishes.

Calling lists 

A central system for recording specific objections and blocking requests –  and propagating these across all calling lists and campaigns is worth establishing. Categorising the customer database to distinguish between contacts that may be called without consent, such as legal entities and B2B contacts who have made their number available for commercial purposes, and those for whom prior consent is required, can reduce risk significantly.

External call centres 

Where third parties are engaged to make calls on an organisation's behalf, a review of agreements to ensure they clearly allocate responsibilities for obtaining, recording and managing consent and include appropriate audit rights to monitor compliance is advisable.

Staff training 

Employees involved in telemarketing, including sales, marketing and customer service teams, benefit from a clear understanding of when and how consent needs to be obtained, recorded and respected. Call scripts will need to be updated to reflect the new requirements and to ensure that non-commercial calls do not contain promotional elements.

Start obtaining consent 

Organisations will want to begin collecting consent from their existing customer base before 1 July through ongoing customer interactions, renewal moments or dedicated consent campaigns. Consent obtained before the new rules take effect will remain valid, provided it meets the GDPR requirements.

Privacy notices 

A review of privacy notices, cookie statements and other customer-facing documentation to reflect the consent-based approach to telemarketing may be appropriate. Individuals should be clearly informed about the purposes for which their telephone number may be used and how they can withdraw consent.  

Under the Court of Justice of the EU (CJEU) case law, no separate lawful basis under article 6 GDPR is required where electronic contact details are used for direct marketing in accordance with the Dutch direct marketing rules. However, where those rules do not apply, such as a call that is not considered "direct marketing", a lawful basis under the GDPR must still be sought to the extent the GDPR applies.

Osborne Clarke comment

The revised telemarketing rules represent a significant shift for any organisation conducting telemarketing activities for commercial purposes. With 1 July approaching, timely preparation and compliance is essential. 

For more information about the impact of these changes on or assistance in reviewing your telemarketing practices, please do not hesitate to contact the Osborne Clarke team.