PRINS the Netherlands is not so much on the infra structure but rather on the content as regards the infrastructure, the Dutch Telecommunications Law provides for several mechanisms that ensure that Internet access is broadly a vailable on an equitable and reasonable basis. Also, the Dutch govemment as well as the supervising authorities OPTA and NMa published documents dealing with Intemet access. 23 The documents and discussions resulted by the end of 2001 in a Bill on ensuring accessibility to and availa bility of Intemet 4 The Bill was approved by the dutch cabinet and send for consideration to the raad van state In the Netherlands. access to internet and thus internet content is considered essential for the sound development of the information society. Here, the Dutch govemment in particular focuses on access to public sector infommation. It is argued that without such access some citizens and consumers will not be a ble to reap the enefits of the infomation society. Also, access to public sector infomation, is regarded to bean mportant instrument in enhancing citizens and consumers rights in the infomation society. Under dutch aw rights citizens have been provided with access rights to infomation being held by the public sector. ICTallows public sector bodies to provide access to a massive amount of infomation, enabling citizens to exercise their legit imate(democratic)rights more effectively. Simultaneously, public sector bodies discover that the (large repositories of) information they hold, represent a vast economic value, tempting them to exploit their resources. These two developments can easily lead to tensions. Also, other interests such as intellectual property rights and privacy rights, may hinder the free a vailability of public sector information In 2000, the Dutch government issued several policy documents on this matter 25 The documents have chos information must be easily and widely accessible and avalable, In particular the that ICT(in the long tem) will have on the relationship between the government and the citizen Also, the Comm ission on Constitutional Rights in the Digital Era proposed in its 2000 report to codify a new fundamental right on access to and openness as well as availa bility of govemment infomation. Finally, in August 2001, another govemment advisory commission (the Commission allage) stressed the importance of a transparent andaccessible public sector. The publication ofall public ector infomation on the Internet, could be an important instrument in establishing Kabel en consument marktwerk en digitalserng TK(Parliamentary Papers)1999-2000, TK 2000-2001. 27008 nrs. 1-18. Consultation document ofoPTA and Nr Naar een optmale beschkbaarheid van overheidsinfomatie, TK 1999-2000, 26387, nr. 7: Nota Contract met de toekomst, TK(Parliamentary Papers)1999-2000, 26387, nr. 8 The afore-mentioned document Contract mete toekomst For an over iew and d scuss ion of the vanous Dutch policy plans, see the reportpublshed by the Rathenau Institut(an advsory body of the Parlament): M. de vries, et elektronische overheidsinformatie het nieinre milennium in, Rathenau Instituut, mei 2001 28 Commission on Constitutional Rights in the Digital Era, Report, May 200
PRINS 6 the Netherlands is not so much on the infrastructure, but rather on the content. As regards the infrastructure, the Dutch Telecommunications Law provides for several mechanisms that ensure that Internet access is broadly available on an equitable and reasonable basis. Also, the Dutch government as well as the supervising authorities OPTA and NMa published documents dealing with Internet access.23 The documents and discussions resulted by the end of 2001 in a Bill on ensuring accessibility to and availability of Internet.24 The Bill was approved by the Dutch cabinet and send for consideration to the Raad van State. In the Netherlands, access to Internet and thus Internet content is considered essential for the sound development of the information society. Here, the Dutch government in particular focuses on access to public sector information. It is argued that without such access some citizens and consumers will not be able to reap the benefits of the information society. Also, access to public sector information, is regarded to be an important instrument in enhancing citizens and consumers rights in the information society. Under Dutch law rights citizens have been provided with access rights to information being held by the public sector. ICT allows public sector bodies to provide access to a massive amount of information, enabling citizens to exercise their legitimate (democratic) rights more effectively. Simultaneously, public sector bodies discover that the (large repositories of) information they hold, represent a vast economic value, tempting them to exploit their resources. These two developments can easily lead to tensions. Also, other interests such as intellectual property rights and privacy rights, may hinder the free availability of public sector information. In 2000, the Dutch government issued several policy documents on this matter.25 The documents have chosen an ambitious perspective: all government information must be easily and widely accessible and available. In particular the policy document Contract with the future 26 provides a clear analysis of the impact that ICT (in the long term) will have on the relationship between the government and the citizen.27 Also, the Commission on Constitutional Rights in the Digital Era proposed in its 2000 report28 to codify a new fundamental right on access to and openness as well as availability of government information. Finally, in August 2001, another government advisory commission (the Commission Wallage) stressed the importance of a transparent and accessible public sector. The publication of all public sector information on the Internet, could be an important instrument in establishing 23. Kabel en consument: marktwerking en digitalisering , TK (Parliamentary Papers) 1999-2000, TK 2000-2001, 27008, nrs. 1-18. Consultation document of OPTA and Nma. 24. <http://www.minaz.nl/data/1008340703.doc>. 25. Naar een optimale beschikbaarheid van overheidsinformatie , TK 1999-2000, 26387, nr. 7; Nota Contract met de toekomst , TK (Parliamentary Papers) 1999-2000, 26387, nr. 8. 26. The afore-mentioned document Contract met de toekomst . 27. For an overview and discussion of the various Dutch policy plans, see the report published by the Rathenau Institut (an advisory body of the Parliament): M. de Vries, Met elektronische overheidsinformatie het nieuwe millennium in, Rathenau Instituut, mei 2001. 28. Commission on Constitutional Rights in the Digital Era, Report, May 2000
REGULATINGELECTRONIC COMMERCE IN THENETHERLANDS this transparency. 29 Validity and security of electronic(commercial) transactions Electronic commercal transactions are different from tradit ional commerca activities in that they no longer require the exchange of paper-based documents and written signatures. Electronic transactions are marked out by various unprecedented features, which companies, indiv iduals and regulators to their fascinationand dismay annot tackle by means of the traditional paradigms. The well-known paradigms have all developed along the lines of physical and local bounds of space and time These confines have, however, lost their meaning in a society that is characterised by timeless, borderless and virtual communication and interaction. Thus, legislative bodies at both an international and national level are working on a new regulatory framework to overcome the new problems and thus provide for trust and legal certa inty with respect to electronic transactions From this perspective, the European Union has adopted several Directives ddressing e-commerce reated problems, such as the formation of contracts that take place by means of digital communications. Also, a legal framework has been made towards the development of rules on the recognition of electronic signatures that meet certain criteria. All European measures are at present being implemented into Dutch law, meaning that either a bill is pending in Parliament, or a proposed text is being considered in governmental bodies 4.1 Signatures On 17 May 2001, the Bill on the implementation of the European Electronic Signatures Directive was put forward to the Dutch Parliament. 30 The Bill introduces a legal framework for electronic signatures that is to amend the civil Code, the Telecommunications Law and the lawon Econom ic Crimes In line with the European Directive, the provisions are designed to ensure that an electronic signature cannot be lega lly discrim inated aga inst solely on the ground that it is in electronic form. Interestingly, the Dutch proposal includes a more broad and open provision concerning the legal recognition of electronic signature compared to the European Directive. In defining electronic signatures the Dutch provision follows the example of the UNICTRAL Model Law on Electronic Commerce. Already in March 1998, a special working group of the Ministry of Justice had advised to introduce the so-called functiona lly equivalent appoach taken by UNCITRAL in its Model Law. Key objective of this approach is that the electronic document and the electronic signature must be functionally equivalent or In other words, fulfill the same relevant functions as a paper document and a manua signature. Amongst these functions are: the evidental function, the infomation and communicationfunction and the protection of third parties In the Netherlands, the establishment of a voluntary accreditation scheme for CAs is at present under consideration. CA's wishing users of their certificates to See:<http://wwwminaznl/wallage 30 TK (Parliamentary Papers)2000-2001, 27743, nrs. 1-2
REGULATING ELECTRONIC COMMERCE IN THE NETHERLANDS 7 this transparency.29 4 Validity and security of electronic (commercial) transactions Electronic commercial transactions are different from traditional commercial activities in that they no longer require the exchange of paper-based documents and written signatures. Electronic transactions are marked out by various unprecedented features, which companies, individuals and regulators to their fascination and dismay cannot tackle by means of the traditional paradigms. The well-known paradigms have all developed along the lines of physical and local bounds of space and time. These confines have, however, lost their meaning in a society that is characterised by timeless, borderless and virtual communication and interaction. Thus, legislative bodies at both an international and national level are working on a new regulatory framework to overcome the new problems and thus provide for trust and legal certainty with respect to electronic transactions. From this perspective, the European Union has adopted several Directives addressing e-commerce related problems, such as the formation of contracts that take place by means of digital communications. Also, a legal framework has been made towards the development of rules on the recognition of electronic signatures that meet certain criteria. All European measures are at present being implemented into Dutch law, meaning that either a bill is pending in Parliament, or a proposed text is being considered in governmental bodies. 4.1 Signatures On 17 May 2001, the Bill on the implementation of the European Electronic Signatures Directive was put forward to the Dutch Parliament.30 The Bill introduces a legal framework for electronic signatures that is to amend the Civil Code, the Telecommunications Law and the Law on Economic Crimes. In line with the European Directive, the provisions are designed to ensure that an electronic signature cannot be legally discriminated against solely on the grounds that it is in electronic form. Interestingly, the Dutch proposal includes a more broad and open provision concerning the legal recognition of electronic signatures compared to the European Directive. In defining electronic signatures the Dutch provision follows the example of the UNICTRAL Model Law on Electronic Commerce. Already in March 1998, a special working group of the Ministry of Justice had advised to introduce the so-called functionally equivalent approach taken by UNCITRAL in its Model Law. Key objective of this approach is that the electronic document and the electronic signature must be functionally equivalent or, in other words, fulfill the same relevant functions as a paper document and a manual signature. Amongst these functions are: the evidential function, the information and communication function and the protection of third parties. In the Netherlands, the establishment of a voluntary accreditation scheme for CA's is at present under consideration. CA's wishing users of their certificates to 29. See: <http://www.minaz.nl/wallage> 30. TK (Parliamentary Papers) 2000-2001, 27743, nrs. 1-2