Netherlands Audio and Video Recording Laws

The Netherlands has comprehensive laws governing audio and video recording, balancing the right to privacy with the legitimate interests of individuals and organizations. Dutch recording laws are primarily found in the Wetboek van Strafrecht (Criminal Code) and are further supplemented by European Union regulations, particularly the General Data Protection Regulation (GDPR), known locally as the Algemene Verordening Gegevensbescherming (AVG).

Can You Record Conversations in the Netherlands?

According to the Criminal Code of the Netherlands, you are legally allowed to record conversations that you take part in or instruct someone else to record a conversation that you are a part of.

Section 139a of the Criminal Code states that it is illegal to record or eavesdrop, using a technical device, a conversation taking place in a dwelling, premises or enclosed room, without being an active participant in the conversation and without receiving instructions to do so by a participant in that conversation.

Section 139b states that it is illegal to surreptitiously record or eavesdrop, using a technical device, conversations taking place anywhere else other than in a dwelling, premises or enclosed room without being a participant in the conversation or without receiving instructions to do so by a participant in the conversation.

Section 139a and 139b do not apply to the recording of:

• Data that is processed or transferred by means of telecommunication or using a computerized device or system.
• For the purpose of implementation of the Intelligence and Security Services Act 2002.

Note: In the case of 139a, you can record conversations taking place in a dwelling, premises or enclosed room, using a technical device, as long as the device is in place and is not concealed, on the consent of the individual who uses the dwelling, premises or enclosed room, except in cases where obvious misuse is evident.

Can You Record Phone Calls in the Netherlands?

Section 139f of the criminal code states that it is illegal to intentionally produce the image of a person when that person is in a home or a place where there is a reasonable expectation of privacy using a technical device that is not clearly visible and installed without notice.

Places with a reasonable expectation of privacy include dwellings, changing rooms, washrooms, and other areas not open or visible to the public.

It is also illegal to be in possession of an image knowingly or with reasonable suspicion that it has been obtained in violation of section 139f of the criminal code.

Section 139g of the criminal code makes it illegal to make public an image obtained illegally in violation of section 139f.

Recording Laws for Organizations in the Netherlands

Since the Netherlands is part of the European Union, the country has adopted the GDPR (General Data Protection Regulations), a guideline established by the EU to control the collection and use of EU citizens’ data by companies that have access to such data, regardless of whether or not they operate within the EU.

This data includes phone calls, videos, employee information, etc.

The GDPR is known as the AVG (Algemene Verordening Gegevensbescherming) in the Netherlands and is enforced by the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, or AP). Check out the laws outlined under the GDPR on this page.

GDPR and AVG: Impact on Recording in the Netherlands

The EU’s General Data Protection Regulation (GDPR), implemented in the Netherlands as the AVG, has significant implications for recording activities. Any recording that captures personal data, such as faces, voices, or license plates, must comply with these regulations.

Key GDPR/AVG Requirements for Recording

• Legal Basis: You must have a legal basis for processing personal data through recordings. This could be consent, legitimate interest, or contractual necessity.
• Transparency: Individuals must be informed about the recording, its purpose, and how the data will be used.
• Data Minimization: Only collect what is necessary for the stated purpose.
• Storage Limitation: Recordings should not be kept longer than necessary.
• Security: Appropriate measures must be taken to protect recorded data.

Personal Use Exemption

The GDPR provides an exemption for purely personal or household activities. This means that if you record conversations or take videos for purely personal reasons with no intention to share publicly, you may be exempt from most GDPR requirements. However, once you share recordings publicly (such as on social media), the GDPR applies fully.

GDPR Enforcement Examples

The Dutch Data Protection Authority (AP) actively enforces privacy regulations. In May 2024, the AP fined Clearview AI €30.5 million (approximately US$33.5 million) for violating the GDPR by processing personal data, including facial images and biometric data, of Dutch citizens without proper legal basis or consent.

Workplace Recording Rules in the Netherlands

Workplace recording in the Netherlands is governed by both criminal law and the GDPR/AVG. The rules differ depending on whether the employer is recording employees or employees are recording their employers.

Employer Recording of Employees

Employers in the Netherlands can only monitor their staff if they meet the requirements of privacy legislation. According to the Autoriteit Persoonsgegevens (Dutch Data Protection Authority), employers must satisfy the following conditions:

• Legitimate Interest: The employer must have a legitimate interest that outweighs the employees’ right to privacy, such as protecting company assets, ensuring workplace safety, or monitoring work performance.
• Necessity: Monitoring must be necessary, meaning the employer cannot achieve the goal through less intrusive means.
• Transparency: Employees must be informed about monitoring activities, including what is monitored, why, when, and how.
• Right to Confidential Communications: Employers cannot read emails that are evidently private or monitor personal phone calls.
• Works Council Consent: If the organization has a works council (ondernemingsraad), consent must be obtained before implementing monitoring systems.
• Data Protection Impact Assessment (DPIA): For large-scale or systematic monitoring, employers must conduct a DPIA to assess privacy risks.

Covert Monitoring by Employers

Covert or secret monitoring of employees is prohibited except in very rare circumstances. Hidden surveillance is only permitted when:

• There is a concrete and demonstrable suspicion of criminal activity or serious misconduct.
• Less intrusive methods have failed or would not be effective.
• The monitoring is time-limited and proportionate.
• The data collected is only used for the original purpose of the surveillance.

Continuous or permanent monitoring of individual employees is generally forbidden and considered disproportionate.

Employee Recording of Employers

Employees in the Netherlands may secretly record conversations with their employers, provided they are participants in the conversation. Under Dutch criminal law (Article 139a and 139b), it is only prohibited to record conversations in which you do not participate.

Key considerations for employees:

• You must be present and participating in the conversation to legally record it.
• You do not need to announce that you are recording.
• You should have a legitimate interest, such as gathering evidence of workplace misconduct or protecting your legal position.
• Leaving recording equipment behind after exiting the room is illegal.
• Publishing recordings without consent may violate GDPR principles and damage employment relationships.

Recording Evidence in Dutch Courts

Dutch courts generally take a liberal approach to recorded evidence. Under Dutch civil law, there are no strict restrictions on what can be used as evidence. Tape recordings, witness statements (testimonium de auditu), and other forms of evidence can all be submitted.

Secretly recorded phone calls are permissible in both civil and criminal proceedings. However, the court has discretion to exclude evidence if the recording was a flagrant violation of privacy (as established in HR 16-10-1987, ECLI:NL:HR:1987). The court weighs the interest of truth-finding against privacy and other interests.

In practice, secretly recorded evidence is usually accepted, but courts may view the act of secret recording negatively, which could affect other aspects of the case, such as compensation awards or assessment of the relationship between parties.

Notable Court Cases Involving Recording

Dutch courts have ruled on numerous cases involving secret recordings, establishing important precedents for recording law in the Netherlands.

Workplace Recording Cases

Amsterdam District Court (2010): An employee secretly recorded conversations with the company director. The court found no unacceptable privacy violation because the conversations were mainly business-related. The fact that the director did not expect the recordings did not change this assessment. However, the judge awarded lower compensation because the recordings contributed to escalating the situation.

North Holland District Court (2013): An employee secretly recorded conversations with an absentee supervisor. The court ruled the recordings were not unlawful because the discussions were purely business-related. The recordings served a legitimate purpose: avoiding future disputes about what was said in earlier conversations.

Court of Appeal ‘s-Hertogenbosch (2016): An employee recorded some conversations he was not present for, which the court ruled was a serious privacy breach and a criminal offence under Article 139 of the Penal Code. However, for conversations where he was present, the court found the recording was technically not allowed but was understandable given the anticipated unpleasant nature of the conversation.

North Holland District Court (2022): An employer denied making a profit-sharing agreement. The employee had secretly recorded the conversation where the general director made the promise. The judge found the recordings sufficiently proved the agreement and awarded the employee €485,939.85 gross in profit-sharing.

Cases Where Recording Damaged Employment Relations

Gelderland District Court (2020): The court called it “extremely improper” when an employee secretly recorded behavior-related conversations with a supervisor. The recordings further damaged the employment relationship.

Central Netherlands District Court (2021): An employee recorded conversations without prior notice. The court agreed with the employer that participants should be able to speak freely without fear of being secretly recorded. Even when the employee claimed health-related memory difficulties, the court found they should have announced their intent to record. A good employee is expected to state their intent to record.

Rotterdam District Court (2018): While acknowledging that an employee recording their own conversation is not a criminal offense, the court found that prolonged secret recordings contributed to a profound and lasting disturbance in the employment relationship, especially since the employee used the recording as a threat. The contract was terminated for this reason.

The Hague District Court (2021): The employment contract was terminated due to a permanently disturbed relationship after the employee had secretly recorded performance reviews.

The Hague District Court (2022): The court noted that making recordings to reflect on one’s position is not inherently blameworthy. However, secretly making and publishing eight recordings was found to be blameworthy and caused a serious breakdown in the employment relationship. The court found that publishing recordings without consent violated GDPR’s lawfulness and transparency principles.

The Chetu Case (2022): Employer Surveillance of Remote Workers

In a landmark case, a Dutch court ruled against U.S.-based software company Chetu, Inc. after it terminated a remote employee in the Netherlands who refused to keep his webcam on for the entire nine-hour workday. The employee argued this was an invasion of privacy, noting the company could already monitor his screen-sharing.

The court held that Chetu’s requirement for continuous video surveillance violated the employee’s fundamental right to a “private life” under Article 8 of the European Convention on Human Rights. Citing a ruling from the European Court of Human Rights, the court noted that “video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee’s private life.”

Chetu was ordered to pay approximately €75,000 in damages, including unpaid compensation, wrongful termination damages, and transition assistance.

Telegraaf Media Case (ECHR, 2012): Journalist Source Protection

The European Court of Human Rights ruled that the Netherlands violated the rights of newspaper De Telegraaf and two journalists under Articles 8 (private life) and 10 (freedom of expression) of the European Convention on Human Rights.

The case arose when the AIVD (Dutch secret services) used surveillance measures against journalists to discover the source of leaked documents. The court found that while the main purpose was to close an information leak, the surveillance circumvented protections for journalistic sources. The statutory basis invoked did not provide appropriate safeguards against targeted surveillance of journalists aimed at discovering their sources.

This case established important protections for journalists conducting investigative work in the Netherlands.

Journalist and Media Recording Rights

Freedom of expression in the Netherlands is protected by Article 7 of the Dutch Constitution (Grondwet) and Article 10 of the European Convention on Human Rights (ECHR). These provisions provide significant protections for journalists engaged in recording and investigative work.

Journalistic Protections

• Source Protection: Dutch law and European human rights law strongly protect journalistic sources. Compelling journalists to reveal sources is only permitted in exceptional circumstances.
• Surveillance Limitations: Government surveillance of journalists requires appropriate safeguards and must be necessary and proportionate.
• Public Interest Defense: Recordings made in the public interest may be accorded greater protection, particularly for exposing wrongdoing.

Hidden Camera Journalism

While hidden camera journalism is not explicitly prohibited, it must be balanced against privacy rights. Courts consider factors such as:

• Whether the recording serves a legitimate public interest.
• Whether less intrusive methods could have achieved the same result.
• The severity of the privacy intrusion.
• Whether appropriate steps were taken to minimize harm to individuals.

Dashcam and Vehicle Recording Laws

Dashcams are legal in the Netherlands, and the Dutch Data Protection Authority does not specifically prohibit them. The law acknowledges the public interest of documenting possible traffic incidents.

Rules for Dashcam Use

• Personal Use Exemption: Private individuals using dashcams for personal purposes, such as documenting a road trip or providing evidence in a traffic dispute, are generally exempt from GDPR requirements.
• Public Sharing: If dashcam footage is shared publicly (such as on social media) or used for professional purposes, GDPR applies fully. Faces and license plates should be blurred before sharing.
• Court Admissibility: Dashcam footage is admissible in Dutch courts. However, the court has discretion to evaluate the legitimacy and admissibility of the evidence on a case-by-case basis.
• Privacy Considerations: Continuous recording that systematically captures others may raise privacy concerns. It is recommended to use dashcams that overwrite footage automatically and only save recordings when triggered by an incident (such as a G-force sensor detecting a collision).

Social Media and Public Sharing of Recordings

Making a recorded conversation public, such as via social media, is generally not allowed because it violates privacy rights. Key rules include:

• The personal use exemption under GDPR does not apply once recordings are shared publicly.
• Posting videos or recordings of identifiable individuals on public platforms requires consent or a legal basis under GDPR.
• Recordings in private settings carry greater privacy protections.
• Publishing recordings without consent may result in enforcement action by the Dutch Data Protection Authority or legal action by affected individuals.

Penalties

Dutch criminal law assigns offenses to categories, with maximum fines set for each category. The current fine amounts (as of 2024) are:

Table of Contents

📑 Table of Contents (click to expand)

• Can You Record Conversations in the Netherlands?
• Can You Record Phone Calls in the Netherlands?
• Recording Laws for Organizations in the Netherlands
• GDPR and AVG: Impact on Recording in the Netherlands
• Workplace Recording Rules in the Netherlands
• Recording Evidence in Dutch Courts
• Notable Court Cases Involving Recording
• Journalist and Media Recording Rights
• Dashcam and Vehicle Recording Laws
• Social Media and Public Sharing of Recordings
• Penalties
• Summary of Netherlands Recording Laws

Criminal Penalties for Recording Violations

• Section 139a (recording in dwellings/enclosed rooms without participation): Imprisonment not exceeding six months or a fine of the fourth category (up to €27,500).
• Section 139b (surreptitious recording elsewhere without participation): Imprisonment not exceeding three months or a fine of the third category (up to €11,000).
• Section 139c (intercepting telecommunications): Imprisonment not exceeding one year or a fine of the fourth category (up to €27,500).
• Section 139d (installing eavesdropping devices): Imprisonment not exceeding one year or a fine of the fourth category (up to €27,500).
• Section 139e (possessing/disclosing illegal recordings): Imprisonment not exceeding six months or a fine of the fourth category (up to €27,500).
• Section 139f (filming in private places): Imprisonment not exceeding six months or a fine of the fourth category (up to €27,500).
• Section 139g (publishing illegally obtained images): Imprisonment not exceeding six months or a fine of the fourth category (up to €27,500).

GDPR/AVG Penalties

In addition to criminal penalties, violations of GDPR/AVG can result in administrative fines imposed by the Dutch Data Protection Authority. These fines can be substantial, with maximum penalties up to €20 million or 4% of annual worldwide turnover, whichever is higher.

Summary of Netherlands Recording Laws