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Dutch Case Says Email Harvesting Illegal
leomekenkamp writes "According to the /. readers there is probably something good as well as something bad in what a Dutch judge had to say in the case of E-mailgids versus NTS: NTS was convicted of illegally harvesting e-mail addresses for spam purposes from the e-mailgids site. According to the judge NTS was guilty because they did not act according to the terms of usage that are on the e-mailgids site, but were bound to them, even though they did not specifically have to click an 'I agree'; the terms of use are clearly mentioned on the main index page, and that was enough for the judge. Unfortunately all links are in Dutch..."
but were bound to them, even though they did not specifically have to click an 'I agree'
How many of you would like to be bound to an EULA even if you didn't click an 'I agree'?
"Unfortunately all links are in Dutch..."
The links are in Dutch. Ishint dat weird?
My email address wasn't harvested because I lost it in a shmelting accident.
I'm always skeptical about 2nd hand interpretations of judicial decisions. At face value, this sounds bad, because it appears to find you are bound by the terms of a Clickwrap contract even if you don't explicitly agree to it.
On the other hand, if this case basically held that abiding by robots.txt is mandatory for spiders, I think I would support that. If the judge held that the terms of use applies even if this site's robots.txt did not forbid crawling, then that is horrendous.
Just for the record, Holland != The Netherlands; 'Holland' is just a name for 2 provinces: North & South Holland. The Netherlands are made up of 12 provinces.
Back on topic: yes, if you are in The Netherlands and you are using a Dutch website (thus implying that you know Dutch), you are bound by Dutch law, that's no surprise. If you used the site without knowing any Dutch (which is technically possible) the judge would have taken that into account also. Dutch judges are far from brain-dead;
However (to abuse your example) if you were here in NL and visited a Dutch website for a Dutch car dealer which stated in it's click-through that by using that site you are bound in contract to buy a car there would not hold up in court. No court here in NL. No judge here would _ever_ find such a contract valid.
And you know why? Because when you visit a site one might reasonally expect NOT to be forced into buying something just by visiting that site. That is simply rediculous, and the judge knows it. Disallowing harvesting email addresses and using them for non-personal purposes is ethically, morally and law-technically perfectly normal, and a judge here takes that into account.
Wenn ist das Nunstueck git und Slotermeyer? Ja! Beiherhund das Oder die Flipperwaldt gersput.
This is a very important point, and one that warrants extra attention.
Dutch contract law (much as contract law anywhere else in the world) requires contracts to be entered willingly and in good faith. This is something that the Dutch courts don't just pay lip service to.
In the case of the hypothetical car dealer, a client that was somehow directed to the page would most likely not have entered in the contract willingly. Proving mala fide would also be a rather easy job for the defense.
As people often say, It's not just common sense: it's THE LAW!
Pathman, Free (as in GPL) 3D Pac Man
I've translated some of the terms of use, see below.
Door uw gegevens aan de E-mailgids toe te voegen, gaat
u ermee akkoord dat deze via de E-mailgids te vinden zullen
zijn.
By adding your data to the E-mailguide, you agree this data
will be searchable through E-Mailguide.
De gegevens in de E-mailgids mogen uitsluitend worden
gebruikt voor het verzenden van enkelvoudige berichten. Het
gelijktijdig verzenden van al dan niet commerciële
berichten aan meer dan een adres - mailingen - is expliciet
niet toegestaan, zulks op straffe van een dwangsom van Hfl.
1000,- per overtreding, waarbij elk bericht in een
geconstateerde mailing als een individuele overtreding
gezien zal worden.
The data in the E-mailguide can exclusively be used for
sending single messages. Sending multiple messages of
either a commercial nature, or not, to more than one
address (mailing), is explicitly forbidden, punishable by
the sum of 1000 guilders per violation, where each message
in an acknowledged mailing will be seen as an individual
violation.
Ook is het niet toegestaan om gegevens uit de
E-mailgids over te nemen in andere gegevensverzamelingen,
tenzij voor eigen gebruik. Middels een aantal
controle-adressen in de E-mailgids zal toezicht worden
gehouden op het naleven van deze voorwaarden. Overtreders
zullen binnen en buiten rechte worden vervolgd.
It is also forbibben to transfer data from E-mailguide into
other databases, except for personal use. By use of a
number of control-addresses in E-mailguide, adherence to
these rules will be checked. Violators will be procecuted
within and without the law.