On May 19, 2016, the District Court of Rotterdam ruled that the Netherlands Authority for Consumers and Markets (ACM) had correctly imposed fines on online affiliate marketing firm Daisycon for violation of the spam prohibition. However, the District Court did lower the fine because ACM exceeded the reasonable time limit.
What was the court’s opinion?
The District Court upheld ACM’s ruling that Daisycon violated the spam prohibition in three different roles. The court is of the opinion that Daisycon as advertiser, publisher and affiliate network is responsible for observing the spam prohibition. As such, Daisycon must therefore demonstrate that it, in all of these roles, obtained the consent of all recipients who received the dispatched emails in question. Daisycon failed to do so.
In addition, the court believes it is correct that ACM holds the de facto executive responsible for the violations. Furthermore, the court opines that it has not been established that all individuals whom ACM investigated were subscribers. However, sufficient subscribers nevertheless remain for establishing a violation of the spam prohibition.
The court is of the opinion that the fines are not disproportionally high. However, ACM should have combined the fines for the violations by Daisycon in its roles as advertiser and publisher. Since these fines taken together do not exceed the maximum fine limit, the level of the fine is not affected. However, the court does lower the imposed fines, because it believes that the reasonable time limit has been exceeded as a result of the lengthy decision-making process and legal proceedings. The court has set the total amount of the fines at EUR 795,000.
Daisycon, as an affiliate network, was involved in the dispatch of over two billion unsolicited commercial emails, with regard to which it could not be established that their recipients had given their consent to receiving them. In addition, these recipients were unable to unsubscribe from said commercial emails effectively. Daisycon played a central role in the dispatch of these spam messages.
In past cases, ACM has imposed fines on publishers and advertisers for violation of the spam prohibition. In this case, ACM also fined an affiliate network. An affiliate network acts as the link between, on the one hand, advertisers, who wish to distribute promotional material, and, on the other hand, publishers, who possess address databases, and who take care of the actual dispatch of the messages. Thanks to the affiliate network, they are able to find each other, thus making it possible for the promotional materials of advertisers to be distributed quickly among a large group of consumers. Ten to fifteen of such affiliate networks are active in the Netherlands. The ruling reveals that, besides the advertisers and publishers, affiliate networks, too, can be held responsible for properly obtaining consent for sending unsolicited commercial emails.
Daisycon has six weeks to decide whether or not it wishes to file an appeal with the Dutch Trade and Industry Appeals Tribunal (CBb) against the District Court of Rotterdam’s ruling.
Read the decision of the District Court of Rotterdam