The Commission of OPTA, the Dutch Independent Post and Telecommunications Authority, has fined two Dutch citizens and the companies, Abodata V.O.F. and H.P.T. Development B.V., a total of EUR 510,000.00 for distributing unsolicited electronic messages (also known as spam) to consumers. Following a previous warning issued by OPTA, at least 4.5 million additional spam e-mail messages were sent by or on behalf of these people and companies. Using the name, Thuiswerkcentrale (“Home employment centre”), the above-mentioned companies used these spam messages to offer home-based work, allowing interested parties to respond by calling an expensive 0900 telephone number. Callers then waited in a queue for minutes on end or were kept on the line for as long as possible to generate the highest possible call charges. In this way individual consumers were cheated out of dozens of euros. As Chris Fonteijn, the OPTA chairman, says, “If after receiving a warning you continue to pester consumers with unsolicited e-mail messages, you can expect to receive a heavy fine. This is the largest fine which OPTA has imposed to date for a contravention of the spam prohibition.”
Complaints concerning spam
Acting in response to the constant stream of complaints which have been received from consumers on OPTA’s website, www.spamklacht.nl, OPTA conducted raids at three addresses in June 2007. Here, various forms of evidence was seized concerning the joint venture Thuiswerkcentrale. Following a thorough investigation OPTA discovered the following:
- Two people had extensively contravened the spam prohibition for periods of more than 25 and almost 36 months respectively;
- The spam messages were sent to consumers without the recipient’s prior consent;
- These electronic messages, which offered home-based work, did not state the sender’s actual identity, nor did they contain a valid address (postal or otherwise) or telephone number;
- Thuiswerkcentrale did not heed requests made by consumers to stop sending them e-mail messages.
It was clear from the facts and circumstances that it was not Thuiswerkcentrale’s intention to offer consumers actual home-based work (or the services of an agency in this respect) but rather deliberately to ensure that they made calls to an 0900 number which lasted as long as possible. No less than EUR 1.7 million was generated in this way.
Chris Fonteijn responded by saying, “I am pleased that we were able to fine these offenders based on the spam prohibition. Impending legislation will ensure that in the future we will be able to act more effectively against the misuse of toll numbers, because OPTA will be able to close down these types of “fake” telephone services. Until that time I would like to advise consumers to think carefully before they call similar 0900 numbers, because they could be used for such practices.”
Additional reporting to the police
Amongst other things, the spam prohibition is designed to promote safe Internet use and to protect the privacy of Internet users. Every spam message is a violation of the privacy of the recipient and undermines consumers’ confidence in Internet. The people behind Thuiswerkcentrale deliberately contravened this prohibition. It is for this reason that the companies and the two individuals responsible were fined a total of EUR 510,000.00. OPTA is of the opinion that these fines are sufficiently punitive and deterrent in their effect to dissuade these companies and others from contravening the law (or to do so again). The parties concerned may file an administrative or judicial appeal against the ruling imposing this fine. In addition, OPTA has reported the offence to the Dutch police (Bovenregionale Recherche Noord- en Oost-Nederland or BR NON).
 The amendment of Section 4.4 of the Telecommunications Act [Telecommunicatiewet], the BUDE (