Dutch government introduced a proposal for a change in cookie
rules for public consultation, signalling its new view on cookie
On 20 May 2013, the Dutch Minister of Economic Affairs
proposed amendment on cookies for public consultation. The
draft amendment is the result of the new way the Dutch government
looks at cookies, and it aims to exempt additional categories of
cookies from the cookie rules. In the Explanatory Memorandum to the
draft amendment, the Minister took the opportunity to clarify that
cookie consent might, under certain circumstances, be given
implicitly and that if browsers allow users to actively configure
its settings, this could constitute consent.
First, the draft amendment aims to exempt those cookies with no
or low consequences to the user's privacy from the cookie
consent and information requirements. If the privacy consequences
are indeed low, this includes, but is not limited to, the placing
of analytics (for analysing and improving a website), affiliate (to
analyse the effectiveness of advertisement) and a/b-testing cookies
(for comparing the effectiveness of multiple advertisement
variants). Earlier, the Minister had
indicated that only first party analytics cookies may be
exempted from the consent requirement. The exemption in the
consulted amendment relates to both first and third party
Secondly, in the Explanatory Memorandum the Minister states that
where the provision requires prior informed consent (opt-in) from
the user, this consent may also be given implicitly, as
long as the implied consent is based on a clear action by the user,
and not on an omission to act. According to the Minister, if the
user is clearly informed upon entry of the website that the
continued use of the website constitutes consent with the placement
of cookies, doing so implies giving consent for the placement of
cookies. The Minister refers to an
Opinion of WP29, which states that "[consent] could
include [...] a behaviour from which consent can be reasonably
Finally, if a web browser enables users to consent to the
placement of specific cookies coming from specific parties by
actively configuring the browser's settings, this should be
regarded as prior informed consent from the user, according to the
Minister. Pre-configured browser settings, however, cannot construe
The deadline for the consultation ended on 1 July 2013. At the
moment, the Dutch government is in the process of drafting the
final proposed amendment, which will be sent to the Dutch
parliament upon completion. Parliament then still has the right to
make amendments to the proposal before it is enacted. It remains
therefore uncertain when and how the proposal will be enacted.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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On 25 May 2016 the European Commission adopted a legislative proposal amending the AVMSD. Highlights of its provisions are set out in this article.
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