Last week, the Dutch Authority for Consumers and Markets (“ACM”) imposed a fine on energy company Essent for violating the Dutch telemarketing rules. In short, Essent had called several consumers with respect to a commercial offer, albeit that a large number of the consumers approached was registered with the Do Not Call Me Register (“Register”). This means that Essent was not allowed to approach these consumers unsolicited by telephone, unless it concerned a former customer of Essent. Clearly, Essent had failed to remove addresses from such registered consumers (not being former customers) from its call files and approached them unsolicited by telephone in violation of article 11.7 of the Dutch Telecommunications Act (Telecommunicatiewet).
From an investigation carried by the ACM in response to several complaints from consumers, it turned out that Essent made use of phone numbers of consumers who had left their contact details through surveys on Essents website for which a prize could be won. Under Dutch law, Essent may only use such contact details for telemarketing purposes if the consumer (not being a former customer) has expressly and unambiguously consented thereto. This was not always the case. Therefore, Essent was obliged to compare the phone numbers obtained through its website with the phone numbers included in the Register prior to using them. Essent had failed to do so and called the consumers anyway, as a result of which the purpose of the Register was being undermined. This caused the ACM to impose a fine amounting to € 47,500.