Netherlands
Updates (slimmed):
Remote Gambling Act amends in force 1/4/21
Online market opened October 1, 2021
New Online Gambling Code (NL) (EN) Dec 2021
Gambling advertising in youth media (NL) Feb 2022
FIFA 22 loot boxes March 2022 Bird&Bird
New rules for use of role models May 2022
Above from bureau Brandeis/ Lexology
News re devpts to Online Code (NL) June 2022
Social Media & influencer Marketing Code
Above effective July 1, 2022. SRC EN trans
Draft Decree (NL) new restrictions July 2022
Links refreshed December 2022, March 2023
NGA fines Bingoal for targeting youth
Taylor Wesssing/ Lex June 24, 2023
SRC ROK Code effective July 1, 2023 (NL)
Non-binding EN translation here
Authority update July 6, 2023 (NL)
Updated Field Marketing Code July 2023
Above applicable to all sectors NL / EN
Mr. Circus ruling (NL) July 31, 2024
www.woordentellen.com ruling August 21, 2024 (NL)
Kansspelautoriteit newsletter Sept/ Oct 2024
Links renewed October 24, 2024. New trans ROK
Kansspelautoriteit newsletter Oct/ Nov 2024
First evaluation of online gambling rules. CMS 22/11/24
KSA, Team Sauber, Dutch GP & Stake August 20, 2024
MPs vote on banning online slots and online advertising (EN)
IGB April 16. 2024. Not yet law
The Decree on Recruitment, Advertising and Prevention of Gambling Addiction (NL) from the Minister for Legal Protection came into force July 1, 2023 and under article 2ab bans 'untargeted' advertising, described as 'advertising via television and radio and in the public space'; additionally, advertising via the internet is only permitted if it is targeted in such a way that it does not reach people from vulnerable groups. Sponsorship was also prohibited in this law, events and programmes from July 2024 and sports and shirt sponsorship by July 2025. The preceding is per the accompanying memorandum (NL) and we are indebted to bureau Brandeis for their commentary of April 6, 2023 and CMS Netherlands 26 April here. See also a comprehensive round-up of the legal framework from ICLG in their Gambling Laws and Regulations Netherlands 2024 (EN) published November 2023; this sets out all the secondary legislation and policy and guidance documents.
Gambling in The Netherlands is regulated under the Gambling Act 1964 Wet op de kansspelen (NL); most recently, the significant development is the arrival of online or 'remote' gambling after amendments from the the country’s first online gambling bill the Remote Gambling Act (NL) came into force on 1st April 2021, introducing into the Gambling Act a licensing regime for online gambling which culminated in an initial ten licensees when the market opened on October 1st, 2021. The 1964 act carries broad recruitment and advertising rules under article 4a (EN) and refers in that article to secondary legislation that sets out specific requirements. These are, for our purposes, from the Decree on recruitment, advertising and prevention of gambling addiction (Besluit werving, reclame en verslavingspreventie kansspelen) NL and the (NL) Regulation on recruitment, advertising and prevention of gambling addiction (Regeling werving, reclame en verslavingspreventie kansspelen), also amended to reflect the new online regime. Both of these decrees/ regulations include marcoms rules, the decree carrying the weighty issue of the ban on untargeted advertising. The Regulation was amended May 2022 to prohibit the use in advertising of role models; amendment here (NL) in force end June 2022 and helpful commentary here (EN) from bureau Brandeis/ Lex. Rules are set out in English in the content section B that follows, or see the linked files.
The SRC announced (NL) May 16 in light of the regulatory announcement above its code will apply until July 1 2023; an amended version applicable from that date is here (NL); SRC English translation here.
The 'governing' authority is KSA, or Kansspelautoriteit; their announcement of the arrival of this new regime is here (NL), their 'additional advertising requirements' here (NL and EN) and their rules and guidance page here. There's a good explanation of the role of the Remote Gambling Act and supporting decrees here (NL), and A general introduction to gambling law in The Netherlands from Kalff Katz & Franssen via Lex is helpful in explaining the full context. There's strong emphasis in the legislation on the prevention of immoderate/ excessive gambling and the protection of consumers and accordingly a requirement for advertising to be 'careful and balanced.' There appear to be some early tensions between the authorities and the consumer watchdog in the Netherlands; story here (EN) and some inter-industry tensions over a new draft advertising code, referenced here in this October 2021 blog from CMS Netherlands/ Lex. See above for that 2023 code from online gambling providers/ the SRC.
SRC published the Advertising Code for Online Gambling (Reclamecode Online Kansspelen - ROK) effective July 1,2023. From the announcement: 'In addition to legislation, the ROK sets further requirements for advertising for online games of chance, such as restrictions on the use of bonuses, information about responsible participation and criteria for online games of chance advertising. SRC EN translation here.
For games of chance Definition An opportunity to compete in the distribution of a prize or premium in connection with the outcome of a random event on which the participants do not have a predominant influence. The Netherlands has a regulated offline gambling market, that consists of: a casino monopoly with 14 casinos (operated by Holland Casino), a state lottery, charity lotteries, a monopoly on lotto and sports betting, a monopoly on horse racing and private operators of 42.000 slot machines in arcades, bars and restaurants. Online gambling is forbidden advertising, the Self-Regulatory Organisation Stichting Reclame Code (SRC) manages the Advertising Code for Games of Chance (the link is to the rules in English, which are part of the Dutch Advertising Code - DAC hereafter). The Games of Chance code requires observance in particular of honesty, sensible participation, and vulnerable groups; details in our content section B below. For the record, and it’s this version that will of course be applied in adjudications etc., here is the Dutch version of the code. The underpinning legislation is the Gambling Act of 1964 (NL), unofficial English translation of key clauses here, and the implementing decrees linked in the opening section above; rules are all set out in full in the following content section B.
Commission Recommendation 2014/478/EU on “common principles for the protection of consumers and players of online (italics ours) gambling services and for the prevention of minors from gambling online” was published in July 2014. As a Recommendation, it is non-binding, but important. While much of the communications ground it covers is present in national legislation or self-regulation, it includes a provision that operators should include in their commercial communications “a clear ‘no underage gambling’ message indicating the minimum age below which gambling is not permissible.” This provision is anyway in force for gambling advertising in The Netherlands.
From April 1, 2022 'Wat kost gokken jou? Stop op tijd. 18+'. (How much does gambling cost you? Stop in time. 18+). Background from the authority here (NL)
Clause 12.1 from the Advertising Code for Online Games of Chance (EN) states: 'With each separate advertisement and in each (social) media account of the online gambling provider, the following information will be provided immediately clearly visible or audibly: a. The minimum age required for participation; b. The slogan ‘what does gambling cost you? Stop on time, 18+’ or its successor; (‘wat kost gokken jou? Stop op tijd, 18+’ of zijn opvolger) c. Online (on websites, email and social media), the warning that the content should not be shared with minors and young adults; d. The web page(s) of the online gambling provider on which the information of Article 5 of the Decree on Recruitment, Advertising and Prevention of Gambling Addiction is provided.' Additionally, to help players recognise the legitimacy of operators, the identification symbol should be used on operator websites; it should be clickable and take users to the authority's website. 'Vergunninghouder' means license holder.
Gambling advertising, as with all sectors, must also comply with the general advertising rules, i.e. those covering misleadingness, decency, safety etc., which are contained within Section A of the DAC (EN). Adjudications made against Gambling advertising (the link is to results in Dutch from a search of Gambling/ Kansspelen) are frequently on the basis of transgression of these general rules. The other significant influence in advertising regulation is The Unfair Commercial Practices Act 2008 (EN), which incorporates the UCP Directive 2005/29/EC via amendment of the Dutch Civil Code Book 6, sections 6.3.3/4 (EN, NL Jan 2023), albeit the law is closely reflected in the DAC.
As you might expect, the Gambling Act and the supporting decree, not to mention the Advertising Code for Games of Chance (EN, art. 6), prohibit the targeting of minors in all media. Additionally, from the linked code:
Some channel rules for online gambling advertising from the Advertising Code for Online Games of Chance (EN). Non exhaustive
Ban on untargeted advertising
a. Only such specifically targeted advertising that must not reach members of vulnerable groups;
b. No advertising:
1. Via a broadcast service;
2. In newspapers, magazines or other printed, publicly available means of communication;
3. That can be seen in a public place per Section 1 of the Public Manifestations Act, in a building accessible to the public as referred to in Section 174 Paragraph 1 of the Municipalities Act or on an associated property.
a. Has given people the opportunity to state that they do not wish to be exposed to the advertising;
b. Takes the best available measures to prevent an advertisement from reaching a member of the vulnerable group of people;
c. Demonstrates, using best available techniques, that at least 95% of individuals are not minors or young adults.
Sponsorship rules are under article 10 of the code, or see channel section C, Event Sponsorship header
Beyond those important requirements for the sector, gambling marcoms must also observe the general channel rules, i.e. those applicable to all sectors. Rules are set out in full under the General tab in channel section C; a ‘snapshot’ follows:
Updates since Sept 2022 (slimmed)
ACM case H&M & Decathlon (EN) Sept 2022
Influencer rules assembled by DDMA Oct 2022 (NL)
Shell CO2 offset ruling Jan 2023 SRC newsletter (NL)
Media Act January 2023 link (NL)
Sustainability Advertising Code (NL) Feb 1, 2023
EN translation of the above here Feb 7, 2023
ACM Sustainability Guidelines (EN) June 2023
Commentary on above CMS/ Lex July 11, 2023
ACM: Clear Information on Sustainability Aug 28, 2023 (EN)
Taylor Wessing on the above and ACM guidelines Nov 6, 2023
AFM Sustainability Claims Guidelines October 2023
ING environmental advertising ruling (NL); vid here (EN)
Primark, Arla foods smackdown Taylor Wessing
Above re green claims February 2, 2024
DLA Piper Environmental Advertising Claims Guide
Above from August 7, 2024 includes The Netherlands
Advertising, Marketing & Promotion Comparative Guide
Hoogenraad Haak July 2, 2024. Inc Netherlands
Mineral Sunscreen Spray ruling Aug 7, 2024 (NL)
MSC Cruises Environmental Claims. Oct 2, 2024 (EN)
Above from Maritime Exec. SRC 30/9 ruling here (NL)
Recent rulings of the Advertising Code Commission (NL)
Above from Bureau Brandeis October 4, 2024
SRC Newsletter (NL) November 7, 2024
Hague Court of Appeal: Shell win 2nd round v Milieudefensie
Burges Salmon November 14, 2024
The Hague world’s first city to ban fossil fuel-related ads
The UK Guardian September 13, 2024
Netherlands Media Authority fines influencer for the first time (EN)
CMS Netherlands July 17, 2024
ACM intensifies supervision of greenwashing (EN)
Maverick. June 6, 2024. Good round-up
SELF- REGULATION
Stichting Reclame Code (SRC) is the Self-Regulatory Organisation in the Netherlands. The SRC publishes the Dutch Advertising Code (DAC) NL / EN, which applies to all advertising regardless of the medium. The DAC is in three sections: General Section (EN); a section of various Special Advertising Codes; and a General Recommendations section (EN). The General section contains a body of rules with which all advertising should comply. The special codes apply to advertising for specific products and services, or using specific channels; see channel header below. There is also the:
Children/ Young People Advertising Code (EN) and the
Sustainability Advertising Code (NL; EN Feb 2023)
CONSUMER AND BUSINESS PROTECTION LEGISLATION
Articles 193a-193j (EN; not up to date - see later entry in this para/ NL) of Section 3A, Book 6 of the Dutch Civil Code prohibit various unfair practices by traders towards consumers, implementing the key provisions of the Unfair Commercial Practices Directive UCPD 2005/29/EC, whilst articles 194-196 (NL / EN; amend to art. 194 here) of Section 4 regulate comparative advertising as derived from Directive 2006/114/EC. These rules are accurately reflected in the DAC referenced and linked above - see Table of Concordance under Annex 2. The Act of 30 March 2022 (NL) amends articles 193c to g of Book 6 of the Civil Code in connection with the implementation of Directive 2019/2161, providing new clauses related to search rankings and consumer reviews, also expressed in the Dutch Advertising Code (EN) under article 8. See Fake Reviews; Really Misleading from Hoogenraad & Haak advocaten/Lex March 23, 2023 which includes a significant ruling from SRC/ ACC. The statutory authority ACM - see below - is also aggressive in this space: ACM takes action against fake reviews from Bird&Bird September 23, 2024 has some examples.
There is a particularly active competition authority in The Netherlands; the recent work of ACM Authority for Consumers and Markets is discussed here (NL) by Maverick Advocaten/ Lex September 13, 2022. Also see environmental claims header below: 'greenwashing' is very much in the ACM's sights.
SELF-REG CHANNEL (I.E. PLACEMENT) RULES
The 7 channel codes from the DAC are:
Code for distribution of advertisements by e-mail EN
Social Media and Influencer Advertising Code 2022 NL / EN
Letterbox advertising, door2door sampling and direct response advertising EN
Advertising Code for the use of the postal filter 2021 EN
Code for the distribution of unaddressed printed advertisements EN and
Field Marketing Advertising Code NL (2023) EN (2023)
Rules from these are set out under the relevant headers in our channel section C
AV LEGISLATION AND AUTHORITY/ INFLUENCERS
Statutory regulation of Dutch audiovisual media in the Netherlands is from the 2008 Media Act (NL, Jan 2023). The linked act includes amends brought about by the 2018/1808 Directive which amends the AVMS Directive 2010/13/EU, ‘in view of changing market realities’ meaning inter alia that video-sharing platforms are now in scope of the Media Act (Chapter 3a; NL). There was some debate about the application of the rules as they relate to an ‘on-demand audiovisual media service’ and whether this definition ‘catches’ vloggers. In May 2022, the Media regulator CVDM issued New rules for video uploaders (NL summary) effective July 1, 2022. These require that influencers who are active and have more than 500,000 followers/ subscribers must register with CVDM no later than July 15 and with the Dutch SRO and NICAM. An overview of the rules is here (NL, non-binding translation here). A registration check is on the CVDM website and can be found from the preceding link. Influencer rules are 'bundled' by channel here (NL)
CHANNEL - DIRECT ELECTRONIC COMMUNICATIONS
The Telecommunications Act (NL link is to the May 2022 version incorporating amends that prohibit unsolicited calls and abolish the 'do not call me' register) NL / EN (key clauses only) article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent of the user. Tracking cookies are presumed to entail the processing of personal data under the DPA, meaning prior unambiguous consent of the user is required. There may also be implications from the introduction in May 2018 of the GDPR. See below.
Requirements for information society services and sending of online commercial communications per Directive 2000/31/EC can be found in articles 15d and15e Book 3 Dutch Civil Code EN / NL (Nov 2022). The translated file does not reflect the latest NL link, but the clauses referenced remain in force.
DATA PROCESSING/ PRIVACY
Privacy Sandbox news and updates
DPA issues new guidance & steps up supervision
Osborne Clarke/ Lex Feb 15, 2024
Privacy issues should be reviewed with specialist advisors
From May 25 2018, the Dutch Personal Data Protection Act was repealed in the light of Regulation 679/2016, the General Data Protection Regulation (GDPR), which repeals Directive 95/46/EC which the Dutch act transposed. The European Commission page on GDPR is here. The GDPR 'implementing' act in the Netherlands is here (NL). The Authority Autoriteit Persoonsgegevens AP supervises processing of personal data; their advice on the introduction of the GDPR is here, albeit only in Dutch at this point. Purely commercial interest also a legitimate interest? courtesy of Stibbe/ Lex July 27, 2022 reports on a significant exchange between AP and the Council of State on the subject of legitimate interest and a 'wrongly imposed' €575,000 fine on VoetbalTV.
SPECIFIC CLAIM AREAS
Pricing
ECJ '30 day' judgement Aldi promotional pricing Sept 24, 2024
The case is here; Pinsent Oct 4 commentary here
Directive 2019/2161/EU has promotional pricing rules under art. 2; see below (and above)
When a price is mentioned in advertising, the final/ total price should be indicated, including VAT and all other price components; see recent ‘Scooter’ case EN. The basis of this ruling was from the UCPD (per above, under consumer protection), as reflected in article 193 of the Dutch Civil Code EN. In the Netherlands, the Product Pricing Directive 98/6/EC is implemented in the Product Pricing Decree PPD NL (Jan 2023) / EN (key clauses inc. 2022 amends). Also known as the Price Labelling Regulations, they apply to advertising (Art. 5.1 PPD). With amendments from the Directive 2019/2161, the 98/6 Directive incorporated a new article 6a, which sets out provisions for reduced/ promotional pricing, commission guidance for the application of which is here. The ACM (Authority for Consumers and Markets) addresses the issue of new rules on promotional pricing in their news item of 27/5/22 here (NL), which states that rules will come into force 'later this year' (see decree entry above); commentary on the decree, which came into force January 1 2023, is here (EN) from Maverick Advocaten NV/ Lex Feb 1. The ACM also has a note on price promotions EN and advertised prices of new cars EN and both the Dutch Advertising Code, supplemented by the SRC Check on Unfair Advertising, and the Civil Code Book 6, Section 3A, include further pricing provisions such as use of the term ‘free’ and ‘Bait and Switch’ advertising. See our following content section B for details, or the linked files.
Environmental claims
Sustainability ad code: a year's lessons Stibbe Sept 26, 2024 (NL)
Ads from Greenpeace & Weerribben Zuivel deemed misleading
Baker McKenzie September 16, 2024 (EN)
The risks & pitfalls of sustainability ads in the Netherlands
Baker McKenzie September 16, 2024 (EN)
ACM intensifies supervision of greenwashing
Maverick. June 6, 2024. Good round-up
Greenwashing in the spotlight - recent developments in the Netherlands
Another good round-up. Freshfields Bruckhaus Deringer April 25, 2024
Key legal and self-regulatory measures
The use of environmental claims in advertising may be assessed against general misleadingness legislation articles 193a-j from Book 6 of the Civil Code (EN; does not incorporate new clauses here) on unfair commercial practices (EN) and Section A (EN) of the DAC, articles 7 and 8. See also December 2021 Commission Guidance on application of the UCPD for such claims, section 4.1.1. From a specific self-regulatory perspective, the SRC’s 2023 Sustainability Advertising Code (NL / EN) applies. This is supplemented by the SRC Check: Environment and Sustainability (NL), as well as the SRC Checklist. Additional guidance on environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (November 2021), which includes an environmental claims checklist. Our following content section B for details of all of the above, or see the linked files.
ACM and AFM activity
The ACM (Authority for Consumers and Markets, per above) publish Guidelines Sustainability Claims (EN 2023 version; NL here), on which CMS Netherlands comment in a July 2023 article here (EN). According to Maverick Advocaten NV June 2021, ACM has asked more than 170 companies in the energy, dairy and clothing sectors to check the accuracy of their product range against the guidelines. In September 2022, clothing retailers H&M and Decathlon agreed to remove or adjust all environmental claims from their clothes and websites 'and make donations of 400,000 euros and 500,000 euros respectively to different sustainable causes to compensate for their use of unclear and insufficiently substantiated sustainability claims.' Case report from the ACM in English here and commentary from GALA here. From Stibbe/Lex January 2023 Key developments in sustainability claims in 2022 is a very good round-up of ACM activity, together with some EU context. More of ACM activity, this time in the delivery business requiring DHL and PostNL to adjust their sustainability claims (EN October 10, 2024). AFM, the authority for financial markets, published Guidelines on Sustainability Claims (EN) in October 2023 for financial institutions and pension providers.
SRO rulings
This August 2021 ruling (NL) from SRC against Shell is instructive; context and commentary from Jones Day here (in English), and this April 2022 ruling (NL) versus KLM's 'carbon zero' claims, which was found to have lacked sufficiently strong evidence for an 'absolute' claim, is also significant and is separately followed up in the courts under UCPD; June 2023 update here and see March 2024 entry above under Issues/ news. This case (NL) about Albert Heijn's bananas being CO2 neutral demonstrates the danger of unsupported statements. Finally, this Shell CO2 offset ruling Jan 2023 SRC newsletter (NL) to book-end the August 2021 equivalent. Not quite finally, as Chewing Gum Argument: Natural Gum Or Not? from Hoogenraad/ Haak March 23, 2023 sets out the case of Perfetti vs. Benbits with the SRO ruling and a judgement in the Amsterdam District Court. The Advertising Code Committee and Sustainability Advertising October 22, 2024 from Baker McKenzie is worth a quick read for context.
Global measures
The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. This latter has been 'diligently developed with SROs and other associations.' On 7 October 2021, Google launched a new monetisation policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here. The ICC's Advertising and Marketing Communications Code addresses under Chapter D environmental claims. DLA Piper's August 2024 Environmental Advertising Claims Guide covers all key markets including The Netherlands.
* Recommended read
New ICC Code September 19, 2024
Press release here and key changes here
French trans November 7, 2024, SW here
EU to re-open, merge CSRD, CS3D & Taxonomy
REP November 20, 2024
TEMU challenged by CPC network (FR)
EC Digital Fitness Check published Oct 3, 2024
Lewis Silkin on above here (scroll down)
Recycling claims mislead consumers:
legal analysis for EU & UK markets Client Earth Oct 2, 2024
AI
The AI Convention CSC Sept 12, 2024 here
EASA newsletter update AI legislation Aug 2024
AI is Everywhere - What about advertising?
BBB National Programs Aug 7, 2024 (audio)
AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024
EU AI Act: first regulation on artificial intelligence. June 2023
Visual summary of the EU's AI Act's risk levels here
Greenwashing Regulations in the Fashion Industry
White & Case Nov 25, 2024. FR, UK, US, DE, AUS
Greenwashing in the EU, France and the UK
Addleshaw Goddard/ Lex November 11, 2024
Hague Court of Appeal: Shell win 2nd round v Milieudefensie
Burges Salmon November 14, 2024 (see below)
Stichting Milieudefensie v. Shell. Freshfields November 6, 2024
The Hague becomes world’s first city to pass law banning fossil fuel-related ads
The UK Guardian September 13, 2024
There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:
1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B.
2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.
Navigating the increasing scrutiny of green claims
Slaughter and May November 19, 2024. EU, UK. Audio
Standards for Claims of “Carbon Neutral” and “Climate Friendly”
Formosan Brothers October 4, 2024
UK / EU / International ESG Regulation monthly round-up
Hogan Lovells July 2024 pub'd Aug 9, 2024
Katjes 'Climate Neutral' & Green Claims Globally
Herbert Smith Freehills/ Lex July 10, 2024
CSDDD FAQs Proskauer October 4, 2024
FAQs on the implementation of the EU corporate sustainability reporting rules
From the Commission August 7, 2024. Ropes & Gray unpack them here
As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here
This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024
Understanding consumer law when conducting influencer marketing
campaigns in the EU and UK. BCLP October 7, 2024
This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here.
The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines, as is its wont:
The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.
In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:
Guides Concerning the Use of Endorsements and Testimonials in Advertising
Disclosures 101 for Social Media Influencers
FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules, a good summary by platform
In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.
ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows' on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.
The latest ICC Code was published September 18, 2024
The code is structured in two main sections: General Provisions and Chapters. General Provisions sets out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A) Sponsorship (B) Direct Marketing & Digital Marketing Communications (C) Environmental Claims in Marketing Communications (D) and Teens and Children (E). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
Key rules are set out in the following content section B and channel section C, as applicable
Lawyer commentary
Kids and Teens Online Safety and Privacy Roundtable
Baker Mckenzie July 26, 2023. Canada UK and USA. Video
EU: Two Key Decisions Highlight Issues When Handling Children's Data
Collyer Bristow/Lex 21 June, 2023
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and self-regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or channel | Key European legislation and clauses |
Cookies |
The EU ‘Cookies Directive’ 2009/136/EC
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC
|
Electronic coms. Consent and Information |
Articles 5 (3) and 13
|
E-commerce; related electronic communications
|
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://data.europa.eu/eli/dir/2000/31/oj
Articles 5 and 6
|
Marketing Communications |
Directive 2005/29/EC on unfair business-to-consumer commercial practices
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Directive 2018/1808 extended some rules into especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Shaping The Future Of Tech: Latest Updates On The Digital Markets Act
Quinn Emanuel/ Lex October 10, 2024
Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section
See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some key legal commentaries on this topic
Data Protection & Privacy: EU overview. Hunton Andrews Kurth July 3, 2024*
Data Protection update - August 2024. Stephenson Harwood/ Lex
Above covers Australia, China, EU, UK, USA
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
EDAA launches new solution to DSA ad transparency requirements
Report from the Commission to the European parliament and the Council on implementation
June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)
Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules sets out new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
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Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
As this is reference work rather than current, we have made it available in back-up here
Advertising, Media and Brands Global Hot Topics Squire Patton Boggs Sept 16, 2024
This section is longer than most. To help navigate it, we have 'anchored' some text and linked it to respective headings immediately below
1. THE ADVERTISING CODE FOR ONLINE GAMES OF CHANCE (content extracts)
2. THE ADVERTISING CODE FOR GAMES OF CHANCE (links and scope only)
3. THE GAMBLING ACT AND DECREES
3.1. The Gambling Act
3.2. The Decree and Regulation
4. EUROPEAN COMMISSION RECOMMENDATION
5. EGBA STANDARDS/ CODE OF CONDUCT
6. GENERAL ADVERTISING RULES
6.1. Self-regulatory
6.2. Statutory
1.1. Scope (EN) here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction.
1.2. Definitions and interpretations extracted here (EN)
1.3. General requirements (Section 3 in the code)
a. Direct consumers towards the legal offering of games of chance and away from any illegal offering;
b. Show restraint;
c. Also be aimed at responsible participation;
d. Not encourage risky gambling behaviour that can lead to gambling addiction; all as set out in detail in this Code.
This Code is built on the premises in Article 3. The channeling principle plays an important role in that respect. The premise of the ROK is to make the legal offer appealing compared to the illegal offer, without the legal offer becoming so appealing that too many people start playing who did not initially intend to do so. This balance must be kept in mind when interpreting the ROK. These principles also play a decisive part in the evaluation of the ROK.
4.1.Advertising for online games of chance:
a. Must not use language or other means that encourage irresponsible behavior or impulsively or irresponsibly participate in an online game of chance, such as: “you have nothing to lose”, “grab your chance, you only live once” or “hurry up, gamble now!”
b. Must not downplay excessive participation;
c. Must not promote behaviour that actually leads to financial loss;
Financial loss means loss that happens because a player’s participation leads to them losing more than just their stake. This can be interest on loans taken out to play, or loss of income for example due to the suggestion of quitting one’s job. There are connections here with other provisions. The pure loss of the stake, which could also be deemed a “financial loss”, is not intended here.
d. Must not use language or other means that show, condone and/or encourage anti-social or criminal behaviour;
e. Must not explicitly appeal to greed;
Elements that lead to the conclusion that ‘explicitly appealing’ is involved can be, for example: the use of popular expensive designer clothes or watches, the use of expensive car brands, etc. Much will depend on how exactly the element is used. Not every (implicit) appeal to greed will result in a transgression of this article. Advertising will often implicitly appeal to the fact that people want to have things and that must remain possible. Humour is also an important part of advertising and the use of humour must also continue to be possible, as long as this does not transgress other provisions.
f. Must not appeal to superstitions about gambling or good fortune;
g. Must not urge players to continue playing and may not appeal to social pressure not to stop;
It must be noted here that the first part of Article 4.1 sub g does not apply in full to bonuses. Bonuses are also seen as part of advertising in this Code, but are treated differently. At variance with this Article 4.1 sub g, Article 5 Paragraph 2 sub b applies to bonuses: “An online gambling provider may not use bonuses that encourage the player to continue playing for so long, or otherwise put so much pressure to play on players, that the bonus can no longer be deemed to be aimed at responsible participation. This is the case, for example, if the payment of the bonus requires multiple deposits.” Therefore, unlike other advertising, a bonus may encourage a player to continue playing, but not to the extent that there’s too much pressure to play.
h. Must not in any event minimise or increase the risk factors identified with regard to gambling addiction to the relevant online game of chance. Texts such as: ‘participation is harmless’, ‘playing is easy’, ‘innocent pastime’, ‘risk-free’, ‘completely safe gambling’ must be avoided in this context.
4.2. Advertising for online gambling must not state or suggest that:
a. Participation is an important part of someone’s life;
b. Participation leads to social acceptance or happiness;
c. Participation is more important than family and friends or professional or educational obligations;
d. Participation enhances personal qualities or self-confidence;
e. Participation can make a player more appealing, sexually or otherwise;
f. Excessive participation can serve as an example;
g. Participation may be a solution to problems, such as financial, personal, or professional problems or problems in school or any other form of education;
h. Participation is a substitute for work or for a regular investment;
i. There is no risk of loss, when in fact there is;
j. The game of chance is free of risk, when this is not the case.
GRS note: Section 5 of the code relates to bonuses. The section, which covers significant territory, is set out under Sales Promotions in our channel section C or see the linked code. The provisions are extensive and not necessarily related to advertising content, hence not shown here
Behaviour
GRS note: we 'jump' several articles, from 7 to 11, as those between address channel (versus content) rules. They are 8. Channels: restraint; 9. Channels: vulnerable groups; 10. Sponsoring; 11. Position in the chain; code linked again here if you want to check any of these
Offered by Licensees, by virtue of the Betting and Gaming Act 2015
Introduction and scope
3.1. The Gambling Act
https://wetten.overheid.nl/BWBR0002469/2022-10-01 (NL)
http://www.g-regs.com/downloads/NLGamblingActENb.pdf (marcoms extracts EN)
The translation above is unofficial and non-binding
Article 4a
A. The Decree on recruitment, advertising and prevention of gambling addiction of 7 May 2013
https://wetten.overheid.nl/BWBR0033412/2023-07-01 (NL)
Unofficial and non-binding English translation of key marcoms rules:
http://www.g-regs.com/downloads/NLGamblingDecreeMay2013ENb.pdf
Article 2a relates to bonus arrangements
1.° via a broadcasting service as referenced in Article 1.1, first paragraph, of the Media Act 2008;
2.° in newspapers, magazines or other printed, generally accessible means of communication;
3.° which can be observed in a public place as referenced in Article 1 of the Public Demonstrations Act , in a building accessible to the public as referred to in Article 174, first paragraph, of the Municipal Act or on an associated property.
Articles 3a and 4 of the Decree (NL) are important as they relate to the reporting of recruitment and advertising activities and the risk analysis undertaken by license holders of gaming arcades, but they are not directly related to marcoms content so are not included here.
Article 5
The Regulation largely concerns measures related to prevention of addiction, but incorporates some significant marcoms rules under articles 3-5, set out below in an unofficial non-binding GRS translation
Article 3 Information obligations
Article 4. Prohibition of advertising by professional athletes and other role models
Commentary from bureau Brandeis/ Lex in English here
a. be under 25 years of age; or
b. have substantial reach among minors or young adults
a. the age of the audience that the role model attracts; and
b. the target audiences of the products or services which the role model has previously worked for or promoted.
Article 5. Prohibition of advertising in addiction prevention information
with any form of recruitment or advertising, including offering bonuses, nor in any other visual or audio form than is strictly necessary for providing the information about the player profile or offering the opportunity to complete or amend the player profile.
Commission Recommendation (not binding in law but important to be aware of) No. 2014/478/EU of 14 July 2014 applies to online Gambling. Most if not all provisions are covered by national regulations. See Chapters III Information Requirements, IV Minors, VIII Commercial communication and IX Sponsorship in particular
These rules apply to members of EGBA. The full set of 2011 European industry standards is here, and the 2020 Code of Conduct on Responsible Advertising for Online Gambling here.
6.1. Self-regulatory
1. SELF-REGULATION
1.1. Section A General rules, Dutch Advertising Code
Invitation to purchase
Identifiability
Comparative advertising
Aggressive advertising
Blacklist: annex 1 and 2
1.2. Section C of the Dutch Advertising Code
Deleted by SRC as of Jan 2023
Use of ‘comparable retail value’
Superlatives, guarantees
The term ‘recommended price’
Advertising for branches
Pictures of the product
1.3. Advertising Checker service from SRC
2.1. Comparative advertising
2.2. Misleading commercial practices
2.3. Invitation to purchase
2.4. The Blacklist
3. SPECIFIC CLAIM AREAS
1. SELF-REGULATION
Note: where the English version of the Dutch Advertising Code below does not accurately reflect the Dutch version, or the European Directives from which part is derived, we have ‘tweaked’ it for presentation in the articles that follow, for easier understanding. The applicable code for adjudication purposes is anyway the Dutch version, and you can always refer back to the SRC English version. We have extracted the most important of the rules and in some cases linked particular explanations; the full code in English is linked here
Section A. General rules
Unfairness and misleadingness
Above clauses d and e added May 2022 in transposition of Directive 2019/2161
Invitation to purchase
(Art. 8.4. Explanation An invitation to purchase is defined as a commercial message stating the characteristics and the price of the product in a way appropriate to the medium used, and thus enabling the consumer to make a purchase. If the advertisement contains an answering or ordering mechanism, it is always considered to be an invitation to purchase. In case such a mechanism is missing, it depends on the circumstances whether there is a matter of an invitation to purchase. A key factor is whether the consumer can base a decision about the transaction on the information in the advertisement. If the advertisement states a (starting from) price, the consumer usually has sufficient information to decide to make a transaction)
Invitation to purchase in relation to a distance or off premises contract
http://www.g-regs.com/downloads/NLGenDACArt8I2Pexp.pdf
Identifiable advertising
Comparative advertising EN (Art. 13)
Aggressive advertising (Art. 14. Explanation ‘Undue Influence’ is defined as taking advantage of a dominant position in order to apply pressure on the consumer even without the use of violence or threat of violence, in such a way that the consumer’s ability to make a well-informed decision is considerably reduced. The methods of advertising as referenced in Annex 2 of the Dutch Advertising Code are considered aggressive under all circumstances)
Blacklist: Annex 1 and 2
Annex 1 contains advertising practices considered misleading under all circumstances, whilst Annex 2 lists advertising practices considered aggressive under all circumstances. The following blacklist clauses are added in the DAC, having been transposed May 2022 as a result of Directive 2019/2161 amends
1.2. Section C of the DAC: General recommendations
This section was deleted from the DAC January 2023
The topics below are set out in full here (EN)
Use of words ‘comparable retail value’
Superlatives, guarantees
Use of the term ‘recommended price’
Advertising for branches
Pictures of the product
1.3. Advertising Checker Service from the SRC
Context
This is a service in Q&A/ Do’s and Don’ts format that is intended to help with some of the major issues such as taste and decency, information requirements etc. that can be encountered when developing advertising. Those issues are set out below largely by way of linked files, as their exploration is quite intricate and lengthy. The information below and linked has been translated from sites that are amended on a regular basis. Whilst we try to keep the translation updated, for the most recent information it may be best to check the Dutch version linked above
Taste and decency
http://www.g-regs.com/downloads/NLGenSRCCheckT_DChecklist.pdf
Recognition of advertising
http://www.g-regs.com/downloads/NLGenSRCCheckIdentifiabilityChecklist.pdf
For guidance on identifiability across several issues/ channels, including example cases
http://www.g-regs.com/downloads/NLGenSRCCheckIdentifiabiltyMedia.pdf
Unfair advertising
https://www.g-regs.com/downloads/NLGenSRCCheckGenUnfair.pdf
A section on the ‘Blacklist’, i.e. those commercial practices in all circumstances considered unfair
http://www.g-regs.com/downloads/NLGenSRCCheckUnfairBlacklist.pdf
Information requirements
Last updated by SRC 10/10/2017 NL
Key extracts in English here:
https://www.g-regs.com/downloads/NLGenSRCCheckInfo.pdf
While advertising regulation is largely a self-regulatory system, legislation is influential in channel especially, but also in content. Issues of unfair commercial practices and comparative advertising can end up in the courts, so it’s best to know what the laws say, albeit they are largely echoed in self-regulation, in the Netherlands in particular
Applicable legislation
2.1. Comparative advertising (Art. 194a Book 6 CC (EN))
1. Comparative advertising means any advertising that explicitly or by implication identifies a competitor or goods or services offered by a competitor
2. Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:
a. It is not misleading or a misleading commercial practice referred to in Articles 193c to 193g
b. It compares goods or services meeting the same needs or intended for the same purpose
c. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
d. it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trademarks, trade names, other distinguishing marks, goods or services and those of a competitor
e. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor
f. For products with designation of origin, it relates in each case to products with the same designation
g. It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products
h. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name
3. Any comparison referring to a special offer shall indicate in a clear and unequivocal way the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the date of the start of the period during which the special price or other specific conditions shall apply
2.2. Misleading commercial practices (Article 193c Book 6 CC)
which causes or is likely to cause the average consumer to take a transactional decision which he otherwise would not have taken
2.3. Misleading purchase invitation (Art. 193e Book 6 CC)
In the case of an invitation to purchase Definition Art. 193a(1g): invitation to purchase: a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase if not already apparent from the context, the following information shall be regarded as material in the sense of Article 6:193d paragraph 2 (misleading omission):
In May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the 2023 NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file
2.4. The commercial practices ‘Blacklist’ EN / NL (Jan 2023)
3. SPECIFIC CLAIM AREAS
Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say
Applicable self-regulation
Applicable legislation and guidance
Note: the Decree under the second bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC relating to the requirement for total/ final prices to be stated. With amendments from the Directive 2019/2161, the PPD incorporated a new article 6a, which sets out provisions for reduced/ promotional pricing. The ACM - the Dutch consumer protection authority - has May 2022 news here (NL) and this March 2022 article from Maverick Avocaten is helpful
Self-regulatory clauses
New article 8.6 Price reduction; transposed from the Directive 2019/2161 which amended the Product Pricing Directive 98/6/EC
Advertisements that mention a price reduction for a particular product, always state the lowest price that the advertiser has applied for that product prior to the promotion during a period of at least thirty days before the discount takes effect. The foregoing does not apply to goods that deteriorate or expire rapidly, for products that have been on the market for less than thirty days and for price reductions that are progressively increased, in accordance with the Product Price Indication Decree.
Example case: Kia Picanto EN. Extracts below
The Chairman’s scooter
The 2017 'Scooter' case (Chairman’s Decision Case No: 2017/00281 EN). Because the final price is not stated, the Chairman considers the advertising in violation of art. 8.4c DAC in conjunction with article 2b of the Prices Act and article 3 paragraph 1 of the Product Pricing Decree (EN)
Comparing prices
Other types of pricing deception within the DAC; Annex I
With the intention to promote another product (Point 6 (a-c), Annex I DAC)
Case law
Key points from case C‑476/14 Citroën/ZLW):
Self-regulation
SRC Check: Environment and sustainability
The SRC are the Self-Regulatory Organisation in The Netherlands. The ‘Check’ system helps guide agencies and advertisers through the various codes. It has not yet been formally translated. The extracts below have been translated by GRS, the owners of this website. As is always the case, the applicable rules are anyway those in the original Dutch. The file here is the full Check section on Environment and sustainability. Read it if you want further background and help on environmental claims:
http://www.g-regs.com/downloads/NLGenSRCCheckEnvironment.pdf
The original:
http://www.checksrc.nl/check/milieu_en_duurzaamheid/
Adjudication: File No. 2017/00812; 20/12/2017
Link no longer active; summary below
ACM Is the Dutch consumer and markets authority, a stautory body. This is a significant document from an organisation empowered to take action against companies they consider to be in breach. The linked document (above) contains some explanations of the core 'rules of thumb' below, the legal context and some relevant cases. Clauses in italics are the amends from the 2021 version. Helpful commentary from CMS Netherlands here
European Commission guidance
Commission Guidance on the application of the UCPD December 2021; section 4.1.1. Environmental claims. This is an important document with definitive guidance on the application of the most important European legislation for this commercial communications context
Comparative environmental claims should be assessed under the criteria from the Directive on Misleading and Comparative Advertising MACAD Article 4 / Article 194a Book 6 Civil Code EN / Article 13 Dutch Advertising Code (EN). These criteria apply to advertising that compares the environmental impact or benefit of different products. Under these provisions, such a comparison should therefore, among other things:
SELF-REGULATION; the 2024 ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.4. The Empco Directive
2.5. The Green Claims Directive
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Marketing communications should not:
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of 'free' and 'guarantee' (Art. 10)
NEW ARTICLE
Presentation of the offer (Art. 11)
NEW ARTICLE
Automatic renewals (Art.12)
NEW ARTICLE
Use of “guarantee” (Art. 13)
Comparisons (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Denigration (Art. 17)
Testimonials (Art. 13)
Testimonials and endorsements; influencer marketing communications (Art. 18)
Portrayal or imitation of persons and references to personal property (Art. 19)
NEW ARTICLE
Children and teens (Art. 20)
For further specific rules, see Chapter E – Children and teens.
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Safety and health (Art. 21)
NEW ARTICLE
Environmental marketing communications should be so framed so as not to abuse to take advantage of consumers’ concern for the environment, nor exploit their possible lack of environmental knowledge;
D4. Comparisons
Article D6 – Claims regarding components and elements
D7. Certifications, signs and symbols
D6. Waste handling
D9. Responsibility
This sector has a separate database on this single topic. Access via the drop-down on the home page
We have not set out individual clauses below, therefore.
Applicable self-regulation
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only; see Empco amends below
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
Content rules excluding alcohol (see pt. 1.5 above) in audiovisual commercial communications
Article 9
The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4
Article 1
Amendments to Directive 2005/29/EC
(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:
(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:
(b) in paragraph 2, the following points are added:
(3) in Article 7, the following paragraph is added:
(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:
(1) the following point is inserted:
(2) the following points are inserted:
(3) the following point is inserted:
‘
(4) the following points are inserted:
The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing these channels' rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important (due to profile and spend) is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for this channel
(We include some online - e.g. video sharing platforms - in this channel's scope, due to the extension of the AVMS). Article 9.1 does not apply to advertising via the internet or via an on-demand media service, if the online gambling provider: a. Has given people the opportunity to state that they do not wish to be exposed to the advertising; b. Takes the best available measures to prevent an advertisement from reaching a member of the vulnerable group of people; c. Demonstrates, using best available techniques, that at least 95% of individuals are not minors or young adults. (Art. 9.2)
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for this channel
6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years.
6.11. Linear television services shall not include any Games of Chance Advertising between 6:00 a.m. and 7:00 p.m. In order to avoid any misunderstanding: neither in the form of teleshopping messages. However, contrary to this a neutral reference to the sponsorship of media offering is allowed during such time.
KEY RULES AND SOURCES
COMMERCIAL CHANNELS
Incorporates TV and Radio and On-demand
CVDM Policy on advertising, commercial media organisations 2012 (EN)
CVDM Policies sponsoring commercial media organisations 2012 (EN)
CVDM regulation on product placement by commercial media institutions 2014 (EN)
The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here and they anyway reflect the amends to the Media Act separately conveyed
https://www.cvdm.nl/uploader/meer-weten
PUBLIC CHANNELS
Summary
STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the independent agency handling advertising on Public Broadcasting's television, radio and online outlets. Advertising rules are applicable to all their media services including, for example, websites or media services on demand (Art. 2.98 Media Act). STER is affiliated to the SRC self-regulatory advertising authority and is legally obliged to observe the Dutch Advertising Code (Art. 2.92 Media Act)
CVDM Policy rules on advertising for public media institutions 2019 (NL) (EN)
CVDM Policy rules for sponsorship, public media institutions 2018 (NL) (EN)
Checking for updates per above commercial amends
EASA Jan 2024 update on the AVMSD
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in italics below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing these channels' rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important (due to profile and spend) is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for these channels
Cinema is not specifically identified, but we take it to be perceived by the authorities as an 'untargeted' medium and carrying risks of reaching minors/ young people
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for these channels
6.8. Games of Chance Advertising is not allowed on billboards, swanks, bus shelters and municipal advertising columns and objects with a similar purpose placed within (sight of) training institutes mainly attended by Minors. Games of Chance Providers shall exclude such locations in their contracts with operators of outdoor advertising. Explanation: If such advertising is placed in the proximity of a field on which incidentally an event for Minors takes place, then the advertising does not have to be removed
6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years
CINEMA
OUTDOOR
The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here
Applicable self-regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
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Article B12 ICC Code Media sponsorship
The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing these channels' rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for these channels
8. Channels: restraint
8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising
Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words.
At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.
8.2. Online gambling operators may not advertise in or around online games and also may not allow third party advertising for online games on their channels. For example, advertising for online games of chance on a web page where casual games of skill are offered is not permitted
8.3. On a game of chance interface of an online gambling operator no other advertising may appear other than advertising for the online games of chance for which the relevant gambling operator has obtained a licence
8.4. It is clearly stated on an online gambling provider’s social media accounts that it is an official account of the relevant online gambling provider
9. Channels: Vulnerable Groups of people
9.5. With the exception of bonuses, targeted advertising for online games of chance may be sent to persons with whom one of the following interventions has taken place: a. If that person has been made aware of their playing practices by the sending of messages on the player interface; b. If that person has been advised to make use of a facility that provides a simple means to get insight into their playing practices: In the case of one of these interventions, bonuses may be sent after 30 days after the relevant intervention in case a) and after 60 days in case b)
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for these channels
6. Vulnerable groups
6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years
‘General’ rules are set out in full below under the General tab. A ’snapshot’ of the most significant in this context follows
Code for distribution of advertisements by email EN
Social Media and Influencer Marketing Code (2022) EN
Rules are set out below under the General tab
CONTEXT
This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in owned and (some) earned space as well as paid, which makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment The DAC definition is ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ The impact of GDPR is shown under individual channel sections; in broad, when processing personal data lawful processing rules from the GDPR may now apply. Privacy issues should be reviewed with specialist advisors
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RECOGNISABILITY: SELF-REGULATION
RECOGNISABILITY: LEGISLATION
INFORMATION REQUIREMENTS
OTHER MEASURES BY CHANNEL AND RE CONTENT CREATORS
Regulatory authorities
ACM's Nov 22 Guidelines on the protection of the online consumer (NL) is an important document that 'draws the line between seducing and misleading consumers in the online environment', from CMS/ Lex commentary here (EN) November 22, 2022
INFORMATION REQUIREMENTS FROM LEGISLATION
Art. 15d Book 3 Civil Code (EN) from the e-Commerce Directive 2000/31/EC: Accessibility of data and information. See the linked file for requirements or under the Marketers’ Own Websites header later in this channel section C. Note: the information must be made ‘directly, easily and permanently accessible.’
The Telecommunications Act NL / EN Article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent. See provisions from the linked files or under the email header later in this channel section C. If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors
Article 193e from Book 6 of the Dutch Civil Code (EN) on 'Invitation to Purchase' covers information requirements for this type of advertising. Provisions are almost word-for-word per the DAC article 8.4 referenced above, as both sources derive from the UCPD 2005/29/EC. In May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file
Repository of European IAB’s Initiatives for Responsible Digital Advertising
IAB 30 September 2024. Topics Privacy, DSA, Influencer marketing, Qualid, Child Safety,
Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
Meta and self-regulation December 2023
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid
Online Deals Do's And Don'ts For Online Business Under EU Law
Logan & partners/ Mondaq November 28, 2023
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
2024 amends in italics; there are some 20 articles in this section of the code
C2. Identification and transparency
Article C3 – Presentation of the offer
The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions
C2. Identity of the marketer
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
Privacy issues should be reviewed with specialist advisors
The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for these channels
8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising
Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words.
At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.
8.2. Online gambling operators may not advertise in or around online games and also may not allow third party advertising for online games on their channels. For example, advertising for online games of chance on a web page where casual games of skill are offered is not permitted
8.3. On a game of chance interface of an online gambling operator no other advertising may appear other than advertising for the online games of chance for which the relevant gambling operator has obtained a licence
8.4. It is clearly stated on an online gambling provider’s social media accounts that it is an official account of the relevant online gambling provider
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for these channels
Article 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years
COOKIES
Privacy Sandbox news and updates
DPA issues new guidance & steps up supervision
Osborne Clarke/ Lex Feb 15, 2024
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here
Privacy Sandbox next steps May 18, 2023
Guidance
OBA
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising
William Fry/ Lex September 8, 2023. Connects with Meta news below
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
EU Rules on Online Targeted Advertising Covington Burling Aug 2022 on existing targeting rules and DSA (in force January 2024)
Effective 19 January 2022
Self-regulation
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
A new path for Privacy Sandbox on the web July 22, 2024
Third party cookie plans for Chrome. WFA view here
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
Meta must limit data for personalised ads
BBC October 4, 2024. Hunton Oct 15
EDAA launches new solution to DSA ad transparency requirements
EDPB ban on Meta processing personal data for behavioural advertising
DAC Beachcroft/ Lex December 6, 2023. EDPB here
Privacy Challenges For Digital Advertising, Particularly In Europe
Squire Patton Boggs 22 November, 2023
Applicable regulation and opinion
Article 29 Working Party* documents
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for this channel
8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising
Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words.
At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for this channel
Article 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years
Legislation
Self-regulation
Full information under the General tab below
KEY RULES AND THEIR SOURCE
SELF-REGULATION
Email code from section B of the Dutch Advertising Code EN / NL. Key points from the code (below as EC):
Identification
The right to object
Note: In the old B2B Email code, opt-in was not required for e-mails sent to generic addresses (i.e. info@ or sales@). No mention of this exemption in the new Email code. SRC (the Self-Regulatory Organisation for the Netherlands) state it no longer applies, meaning opt-in required for these addresses
LEGISLATION
As the self-regulatory email code is comprehensive, clauses from legislation are not spelt out in this section
Direct Marketing of Goods and Services in EU
ICLG April 2024. Clear and informative and (EN)
2024 GDMA International email benchmark
Posted June 2024
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for this channel
8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising
Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words. At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.
12. Information on responsible participation
This Article is without prejudice to the information obligations as referenced in Article 4a Paragraph 3 of the Betting and Gaming Act and Article 5 Paragraph 1 of the BWRVK
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for this channel
6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years
4. On the Internet page of the Games of Chance Provider, information can be obtained and perused regarding: The specific features of the Games of Chance provided; The costs of participation; Other obligations related to participation or winning a prize; The ban on participation by minors; How to participate in a sensible way in games of chance, the risk of addiction to games of chance and where to find assistance in case of addiction to games of chance; What the risks are of excessive participation in Games of Chance; The form of participation: does it concern a one-time participation or a subscription; and
The manner of terminating the participation in Games of Chance; The manner in which the participant can easily unsubscribe to addressed advertising mail with the provider; The guarantee of privacy of the prize winners; The manner in which winners of big prizes can get independent advice about financial and legal matters; The development of the game, the (statistical) chances to win the different prizes, unless this is not feasible in practice, the determination of profit, the possible withholding of games of chance tax; The notice participants who have given permission for payment by direct giro of banking debit, can expect one month ahead, about a price increase or other changes in the game conditions; Volume and allocation of the profits of the Games of Chance. This point does not apply to operators of slot machines
CONTEXT
The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the applicable Dutch Advertising Code (EN) as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below.
In the event that data processing identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
SELF-REGULATION
Social Code YouTubers NL / EN. This is a code written by YouTubers for YouTubers
LEGISLATION
See linked documents for clauses. These are not set out below
1.1. Social Media and InfluencerAdvertising Code 2022 EN
Explanation
https://www.reclamecode.nl/social-toelichting/ (NL)
Advice tool
https://www.reclamecode.nl/adviestool-reclame-code-social-media/ (NL)
Guidance document
https://www.reclamecode.nl/wp-content/uploads/2019/08/Toolkit-Guidance-doc-RSM.pdf (NL)
FAQs
https://www.reclamecode.nl/category/reclamecode-social-media-influencer-marketing/ (NL)
Note July 2022: we are not sure whether the above have been amended in light of the update to the code itself
Key clauses article 3: disclosure and identifiability of ‘Relevant relationship’
The requirements referred to in points a and b can be met in any event if the content and nature of the Relevant Relationship is disclosed clearly and in an easily accessible manner, e.g. by means of layout and/ or presentation. The content and nature of the Relevant Relationship is in any event clearly recognisable if it is formulated in accordance with the suggestions in the explanation to this article (see file linked above for explanation; it's a bit lengthy to place here)
Manipulation ban
Teasers
Teasers are permitted except when the teaser causes or is likely to cause the average consumer to make a decision about a transaction that he would not otherwise have made
Children
If there is advertising via social media aimed at children, the Children's and Youth Advertising Code applies in full in addition to this code and the DAC (Art. 5 SMAC)
Duty of care
Example case (Identification)
YouTubers Code NL / EN website:
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The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2023
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. Native advertising is like any other advertising – it’s subject to the content rules; in this context, those that are set out under our earlier content section B.
The key general rule is that of identifiability/ disclosure. Various regulations, the most significant of which is Article 11.1 DAC (EN): ‘An advertisement shall be recognizable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended’ cover the issue in slightly different ways, but all are clear that advertising must be identifiable as such. Further information under the General tab below
The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's/ technique's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for this channel
7.2 (part of the 'not dishonest' rules) d. Not clarifying that the advertisement originates from or is made on behalf of an online Gambling Provider
7.2. v. Government-issued approval is in place, in which regard the following statement, which must be neutral and reserved in terms of layout and otherwise, is permitted: “licensed in accordance with Dutch law”. (“bezit vergunning op grond van de Nederlandse wet”.)
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for this channel
6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years
CONTEXT
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The key issue, obviously, is that of advertising identifiability, though native advertising is like any other advertising in as much as it should observe the rules spelt out in our earlier content section B, primarily those from the Dutch Advertising Code (EN - translation does not include May 2022 clauses here)
SELF-REGULATION
Identifiable/ recognisable as advertising (Art. 11)
SRC Check: Unfair advertising - always unfair: Blacklist NL
Blacklist: Misleading under all circumstances and thus unfair advertising under Article 7 DAC
LEGISLATION
As self-regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code (EN 2024)
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
The rules do not identify direct postal mail specifically; it would not prima facie appear to be an 'untargeted' medium
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for this channel
8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising
Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words. At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for this channel
3. Free counters for casino games or slot machines shall not be distributed through national newspapers or free local papers with a national reach
4. Without prejudice to that provided in this code or elsewhere in the Dutch Advertising Code, information shall be given in a manner sufficiently visible to the consumer with each individual canvassing or advertising activity about: a. the minimum age for participation in a Game of Chance; b. as per July 1, 2015 the slogan ‘Speel bewust’ (Play consciously) has been introduced; c. the internet page of the Games of Chance Provider
6.1. Games of Chance Advertising shall not be specifically directed at socially vulnerable persons. Explanation: A Games of Chance Provider shall not specifically target for instance Minors and persons he knows to present characteristics of risky gaming behaviour, e.g. because such persons are known to the provider as having an active ban on entry or participation in Games of Chance by reason of gaming problems. Socially vulnerable persons cannot be prevented from being faced with unaddressed advertising. In that case paragraph 3 of this article Games of Chance Advertising does not take advantage of the specific weaknesses or needs of socially vulnerable persons applies to such advertising.
6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years
Includes unaddressed door-to-door
SELF-REGULATION
Addressed Direct Postal Mail - definitions and terms
Content of the offer
Advertising code for the use of the Postal Filter (PFC)
Unaddressed advertising and free local papers
LEGISLATION
As self-regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause
Applicable self-regulation and legislation
As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Guidelines on consent under Regulation 2016/679 (May 2020)
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The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for this channel
10.1. Article 9 paragraph 1 (the ban on untargeted advertising) does not apply to sponsorship that takes place on the basis of contracts concluded before 1 July 2023. This exception applies until July 1, 2024 and for sports sponsorship until July 1, 2025. After July 1, 2024, this Article 10 expires for all sponsorships except sports sponsorship and after July 1, 2025, this Article expires completely.
With regard to the mention of the name, logo, brand or other distinctive sign of an online gambling provider as consideration for sponsorship, the other articles of this Code, in particular Article 6.4, are fully complied with
Sponsor communications are advertising and must therefore meet the requirements of the ROK. Sponsorship must continue to comply with the rules such as those laid down in Article 1.1 of the Code, among others
Before this version of the ROK entered into force, (sports) sponsorship was permitted. The legislator, and with it this version of the ROK, provide for a transitional phase, particularly with a view to mutual obligations already entered into by parties in the market. After the transition period, sponsorship will be treated like any other form of advertising. Sports sponsorship occupies a special place as shown in Article 10.2.
10.2. Contrary to Article 6 Paragraph 4 sub c, professional athletes and professional teams may be sponsored, with the exception of individual youth athletes, young adult athletes and professional teams that mainly consist of minors. To avoid misunderstandings: the ROK applies in full to the use of images of that sponsorship in advertising by the online gambling provider
Sponsorship of professional athletes and their teams is permitted. Other advertising that uses athletes and teams is not (Article 6 Paragraph 4 sub c). This means that images of a sponsored team, for example, may not be used in a provider’s communication. Also, for example, the sale of shirts of a sponsored football player with the name of the sponsor in children’s sizes is not allowed. After all, the sponsorship would then be aimed at minors, part of the group of socially vulnerable people.
The exception to Article 6.4 sub c for sponsorship of professional athletes is the result of the choice of the regulator, who chose to make sponsorship possible in the interest of sport. This is a deliberate deviation from the general ban on the use of athletes in advertising for online games of chance. The ROK also prohibits the sponsoring of underage and young adult individual professional athletes. For professional teams, the age limit has been set for minors. In practice, it is sometimes the case that, for example, in the professional football league, more than half of a team consists of young adult players. The ROK wants to put beyond doubt that this sponsorship opportunity, which is important for this sport, is allowed as long as sports sponsorship is allowed.
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for this channel
(a) No sponsorship is allowed of events designated for or mainly aimed at minors
(b) Promotional material of the sponsoring party is not used in merchandising designed for or mainly aimed at minors
Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024
The IP Dos And Don'ts Of The Olympic And Paralympic Games
Novagraaf March 14, 2024
France: Juridische dos en don'ts voor de Olympische en Paralympische spelen in Parijs 2024
Novagraaf February 16, 2024
Netherlands: Ambush Marketing: Harmless Fun Or Harmful IP Infringement?
Novagraaf February 15, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush (EN). Lewis Silkin 25 Jan, 2024
Revised SRC field marketing code July 2023; see below. EN translation here
SELF-REGULATION
The DAC Field Marketing Code 2023 is linked below (EN)
http://www.g-regs.com/downloads/NLGenCodeFMAug2023EN.pdf
And in the original Dutch here:
https://www.reclamecode.nl/nrc/code-voor-fieldmarketing-cfm/ (2023)
This code applies to advertising relating to sale and promotion off-premise
EVENT SPONSORSHIP
B1. Principles Governing Sponsorship
B2. Autonomy and Self-Determination
B3. Imitation and Confusion
B4. 'Ambushing of Sponsored Properties
B5. Respect for the Sponsorship Property and the Sponsor
B6. The Sponsorship Audience
B7. Data Capture/ Data Sharing
B8. Artistic and Historical Objects
B9. Social and Environmental Sponsorship
B10. Charities and Humanitarian Sponsorship
B11. Multiple Sponsorship
B12. Media Sponsorship
B13. Responsibility
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The European Sponsorship Association (ESA) may also be able to help/ inform
Pilot Project Relaxes Olympic Games' Rule For Participating Brands
Marks & Clerk July 19, 2024
Paris Olympics & Paralympics - Part 2: What could possibly go wrong?
Squire Patton Boggs july 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
As this website was created to provide multinational rules on marketing communications, we do not claim authority on specific national Sales Promotions (SP) legislation, especially retail legislation and the likes of T&C rules and their formatting, for example. However, when we find relevant rules in the course of what is extensive research, we include them in this section. In the case of the gambling sector, we extract in particular bonusing rules from the online code
The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (i.e. placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries
Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence
Rules for this channel
8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising
Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words. At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.
This Article is intended to reduce the risk of bonuses leading to impulsive behavior and pressure to play. In order to create clarity to the sector regarding time pressure, in Article 5.2.a the ROK presumes that there is in any case time pressure if the consumer has not been able to “get a good night’s sleep” and that more than three “nights of sleep” will in any case not result in time pressure. Whether time pressure exists in the intervening period between these two must be assessed on a case-by-case basis. When a bonus is no longer aimed at responsible participation due to the compulsion to play is more difficult to specify. This also needs to be considered on a case-by-case basis. In any case, it is clear, and included in the ROK, that if the consumer must make multiple additional deposits to obtain payment of a bonus, this qualifies as pressure to play.
a. 100% of the amount of the first deposit if the amount of that deposit is lower than EUR 250 but higher than or equal to EUR 50; and
b. EUR 50 if the amount of the first deposit is less than EUR 50; and
c. EUR 250 in all other cases.
The regulation of Articles 5.5 and 5.6 is intended to provide the consumer with a comprehensible and sufficient insight into the most important conditions of the bonus. An insight that, as Article 5.5 makes clear, cannot be provided by hiding those terms and conditions in general terms and conditions. Nor, according to Article 5.6, somewhere at the bottom of a long internet page.
Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players
Rules for this channel
5.1. Prize winners are not obliged to cooperate in any form of Games of Chance Advertising. Nor shall it be suggested in Games of Chance Advertising that this would be any different
5.2. Games of Chance Providers can ask prize winners to cooperate of their own free will
6.1. Games of Chance Advertising shall not be specifically directed at socially vulnerable persons. Explanation: A Games of Chance Provider shall not specifically target for instance Minors and persons he knows to present characteristics of risky gaming behaviour, e.g. because such persons are known to the provider as having an active ban on entry or participation in Games of Chance by reason of gaming problems. Socially vulnerable persons cannot be prevented from being faced with unaddressed advertising. In that case paragraph 3 of this article Games of Chance Advertising does not take advantage of the specific weaknesses or needs of socially vulnerable persons applies to such advertising.
Article 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years
Article 3.1 of the Online Games of Chance Code: In general, advertising for online games of chance must: a. Direct consumers to the legal offering of games of chance and away from illegal offers; b. Show restraint; c. Also be aimed at responsible participation; d. Not encourage risky gambling behaviour that can lead to gambling addiction; all as set out in detail in this Code
CONTEXT
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail and SP administration legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered to be a lottery and are generally illegal. As promotional advertising might be more ‘aggressive’, we include the measures from legislation and self-regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors.
SOME STANDARD RULES
LEGISLATION
1. Promotional Games of Chance
Includes prize promotions such as prize draws/ sweepstakes
A promotional game of chance must:
Notes accompanying Article 5: Promotion Definition Every form of promotion, whether direct or indirect, of the public profile of an organisation or the sales of goods or services (Art. 1.6)
Promotion may not be misleading in any way. Some examples of what may be misleading include the following:
2. Information obligations when using commercial communications (Art. 15e Book III DCC)
1. Where commercial communication forms a part of a service of the information society or makes out such a service itself, the one who has instructed to use this way of communication has to ensure:
3. Blacklist/ Commercial practices considered unfair in all circumstances (Art. 193g Book 6 Civil Code):
SELF-REGULATION
Advertising contests and promotions
Under the Dutch Advertising Code, Section B (Special Codes): c. Contests: advertisements for prize promotions and contests in print and electronic media must contain at least the following information:
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Annex II Dutch Advertising Code EN; SRC Check Unfair advertising NL echoes the Blacklist rules shown above under point 3. Rule are shown under the linked Annex 2 document
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From the ICC Advertising and Marketing Communications Code (EN), Chapter A. Key headers are
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B as well as more specific requirements related to pricing, promotional conditions etc. .
ICC Advertising and Marketing Communications Code (EN 2024), Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
Clauses are from the 2024 edition of the Code
A1: Principles governing sales promotions
A2: Transparency and terms of the offer
Sales promotions should be transparent. This means that the terms of the offer should be easily identifiable, accessible and straightforward for the consumer, inclusive of any restrictions and limitations. Measures should be taken to avoid exaggerating the value of any promotional item or obscuring or minimising the price of the main product.
A3: Presentation
Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.
A4: Administration of promotions
Sales promotions should be administered using appropriate resources and supervision and should incorporate proper safeguards to ensure that the offer’s administration aligns with the reasonable expectations of consumers. In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.
Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed.
Where a sales promotion includes a prize promotion, the following information should be given to consumers, and be available prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction
The Self-Regulatory Organisation SRC Stichting Reclame Code provides copy advice for a standard fee to advertisers, for example to those who have to adapt or withdraw an advertisement, to ensure that the amended advertisement complies with the decision of the Advertising Code Committee and/ or Board of Appeal. This advice is available only to advertisers who pay their annual financial contribution to the SRC. Advertisement copy advice is informal and non-binding; access is provided at: http://www.checksrc.nl/copy_advies. SRC also offers training on the rules of the DAC; you can check their website for the current offer or if you want a tailor-made training, you can contact the Compliance department of the SRC.
Besides Copy Advice and Training, SRC offers advertisers two websites (in Dutch) with explanations of the advertising rules: (1) www.checkdereclamecode.nl and (2) www.checksrc.nl. The first site offers a practical tool that makes it possible to check an advertisement or a campaign on the basis of a few simple questions. The second site offers advertisers the opportunity to go into a little more depth on specific subjects, such as misleading advertising, rules for children, and identification of advertising.
Pre-clearance is mandatory for Alcohol advertising on radio and television and in cinemas. Requests should be e-mailed to STIVA (the alcohol industry body) advies@stiva.nl and consist of a script, storyboard or video. Cost is €350 ex VAT; advice within 5 working days. Otherwise:
Direct to broadcaster
Allow 3-5 days TV/VOD
For help contact the Traffic Bureau administration@trafficbureau.net
The ICAS Global SRO database
https://icas.global/srodatabase/
EASA (European Advertising Standards Alliance)
https://www.easa-alliance.org/
EASA membership
https://www.easa-alliance.org/members/
Link to Best Practice Recommendations
https://www.easa-alliance.org/publication/best-practice-recommendations/
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing
European legislation
GDPR
Regulation (EU) 2016/679 Of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force in May 2018.
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en
The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:
https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
Two more recent and significant documents:
UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No. 2006/2004 of the European Parliament and of the Council (the ‘Unfair Commercial Practices Directive’ – UCPD):
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance (2021):
https://ec.europa.eu/info/sites/default/files/c_2021_9320_1_ucpd-guidance_en.pdf
European Communication and Recommendation
In March 2011 the European Commission launched a consultation on online gambling services. In particular, the Commission asked for views on online commercial communication, sales promotions, direct marketing and sponsorship. Following its consultation, the Commission adopted the Communication Towards a comprehensive European framework on online gambling in October 2012, which set out the commission’s action plan for the next two years. Key objectives of the action plan included ensuring protection of minors and enhancing responsible advertising. The Commission Recommendation on ‘principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online’ was published in July 2014. This is a Recommendation (not legally binding) on responsible gambling advertising, which aims to ensure that operators advertise in a socially responsible manner, protect minors, and provide key information to consumers.
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014H0478
On 27 November 2015, gambling regulatory authorities of EEA Member States signed a cooperation arrangement to enhance administrative cooperation. The cooperation arrangement follows other initiatives announced in the Communication, 'Towards a comprehensive European framework for online gambling'.
More EU legislation, relevant to all sectors, is shown under the General tab below
The Gambling Act
Law of December 10, 1964 (Wet van 10 december 1964, houdende nadere regelen met betrekking tot kansspelen). This key law sets out the legalities across the licensed gambling sectors including, for example, the national lottery, sports betting, and slot machines. It also establishes the national Gaming authority (Title VI). For our purposes the core article is 4a, which requires 'careful and balanced' recruitment and advertising activities to avoid 'immoderate participation', and that those activities must not be misleading. Additionally, under para 2: 'In recruitment and advertising activities for games of chance, a license holder will in any event not use the personal data of participants processed in the context of another game of chance referenced in this Act.' Article 5 allows for a Decree that sets out further advertising rules (see below).The act was signifcantly amended by the Remote Gambling Act (see below) which introduced the amendments that created the licensing regime for online gambling, which amends came into force 1st April 2021.
https://wetten.overheid.nl/BWBR0002469/2022-10-01 (NL)
Unofficial, non-binding GRS translation of key marcoms clauses:
http://www.g-regs.com/downloads/NLGamblingActENb.pdf
Remote/ online gambling
Act of 20 February 2019 amending the Gambling Act, the Act on gambling tax and some other laws related to the organisation of remote games of chance. The principal role of this act, as suggested in the title, was to introduce into the core 1964 act (above) amendments, largely under article 31 of the RGA, which established the licensing regime for online gambling.
https://wetten.overheid.nl/BWBR0042051/2021-10-01 (NL)
The supporting Decree (as amended)
The Decree on Recruitment, Advertising and Prevention of Gambling Addiction (Besluit werving, reclame en verslavingspreventie kansspelen) from the Minister for Legal Protection came into force July 1, 2023 and under article 2ab bans 'untargeted' advertising, described as 'advertising via television and radio and in the public space'; additionally, advertising via the internet is only permitted if it is targeted in such a way that it does not reach people from vulnerable groups. Sponsorship was also prohibited in this law, events and programmes from July 2024 and sports and shirt sponsorship by July 2025. The decree also covers the gambling addiction prevention policy of holders of a licence under the Betting and Gaming Act. The Decree supports the Gambling Act set out above and provides more specific rules, including those for marketing communications in articles 2 - prohibition of the encouragement of immoderate participation and how that is in part defined - article 3 covers prohibition of misleadingness and aggression and some controls related to personal approaches and article 5 requires that consumers are ‘fully informed’ about participation in games of chance, with some eight related provisions.
https://wetten.overheid.nl/BWBR0033412/2023-07-01 (NL)
The supporting Regulation (as amended)
Authority/ regulator
The independent regulator the Netherlands Gambling Authority, Kansspelautoriteit (KOA). From their website: 'The Gaming Authority is the regulator of the games of chance market. We are an independent administrative body and implement the Dutch games of chance policy on behalf of the Minister for Legal Security. We are independent in our fulfillment of this duty. Our duties are, among other things, laid down in the Betting and Gaming Act.' Their announcement of the arrival of the new online regime is here (NL), their reference to new advertising rules here, and their Rules and Guidance page here.
http://www.kansspelautoriteit.nl/
The full set of regulations is shown below under the General tab. We show here only those laws most relevant to gambling or where they have been referenced in the text
Channel - AV
Media Act 2008 (Mediawet). Act No. 583 of 29th December 2008 established the Media Act, entry into force 01/01/2009. Act No. 552 of 10th December 2009 amended the Media Act to implement the Audiovisual Media Services (AVMS) Directive 2010/13/EU, and the Act of 30 September 2020 amended the Media Act according to Directive 2018/1808, which amended the AVMS Directive, extending rules into video-sharing platforms in particular, covered under Chapter 3a of the Media Act. The Act sets requirements for both public and commercial broadcasters, including rules for commercials, sponsorship, product placement and teleshopping. The content rules from the Directive, i.e. those to do with protection of young people, health and safety, the environment etc., are transposed into the SRC's Dutch Advertising Code, with which commercial and public broadcasters must be affiliated under the terms of articles 3.6 and 2.92 respectively. Programmes on public channels may accordingly carry advertising; product placement is prohibited but permitted for commercial channels subject to the conditions outlined in Arts 3.19a/b. Sponsorship is allowed in both, but subject to strict conditions for public broadcasting services. STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the independent agency handling advertising on Netherlands Public Broadcasting's television, radio and online outlets (Art. 2.91(2)). Article 3.7 of the Media Act prohibits advertising in both public and commercial services most significant forms of Games of Chance between 0600 and 2100 o'clock.
https://wetten.overheid.nl/BWBR0025028/2023-01-01 (NL)
Telecommunications Act
Telecommunications Act of 19th October 1998 (Telecommunicatiewet; Staatsblad 1998, No. 610; entry into force 15/12/1998). Relevant articles 11.7 and 11.7a. Chapter 11: Protection of Personal Data and Personal Privacy. Article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent of the user.
https://wetten.overheid.nl/BWBR0009950/2022-05-01 (NL)
An unofficial English translation of the relevant articles including the 2015 amend is here:
http://www.g-regs.com/downloads/NLTelecomsActJuly2021versionNoteEN.pdf
Electronic commerce
Act of 13th May 2004 amending the Civil Code, the Code of Civil Procedure, the Penal Code and the Law on Economic Offences implementing Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. This law requires information to be included in electronic communications related to e-Commerce and that the commercial communication and its source is clearly recognisable as such; if it encloses promotional offers, competitions or games it must include a ‘clear and unambiguous indication’ of the conditions; unrequested commercial communication should be ‘clearly and unambiguously recognisable as such’ as soon as it is received.
https://zoek.officielebekendmakingen.nl/stb-2004-210.html
Consumer protection legislation
Law of 25 September 2008 (No. 397) implementing the Unfair Commercial Practices Directive (UCPD) 2005/29/EC into national law by amending Books 3 and 6 of the Dutch Civil Code and the Consumer Protection (Enforcement) Act 2007. Article 2A of this act inserted a new Section 3A (unfair commercial practices) into Book 6 of the Dutch Civil Code. Enforced by the Dutch Authority for Consumers & Markets ACM, and the Financial Markets Authority. Rules are established for the provision of information regarding commercial communications with consumers, e.g. those constituting an ‘invitation to purchase’:
https://zoek.officielebekendmakingen.nl/stb-2008-397.html
English version:
Book 6 of the Dutch Civil Code; Title 3, Section 3A consolidated version. English translation:
http://www.dutchcivillaw.com/civilcodebook066.htm
NL version of January 2023
https://wetten.overheid.nl/BWBR0005289/2023-01-01
English translation of key clauses:
http://www.g-regs.com/downloads/NLChap6.3.3ADCCUnfairCommPracWRedit.pdf
Data protection
National GDPR implementation
Implementation Act General Data Protection Regulation. (Uitvoeringswet Algemene Verordening gegevensbescherming) (‘UAVG’). Law of 16 May 2018, laying down rules for implementing Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/ EC (General Data Protection Regulation GDPR):
http://wetten.overheid.nl/BWBR0040940/2018-05-25
National codes
Stichting Reclame Code (SRC); The Advertising Code Foundation, the Netherlands Self-Regulatory Organisation. In addition to dealing with complaints, the SRC also helps advertisers to avoid any violation of the Dutch Advertising Code (DAC) e.g. via www.checksrc.nl, which helps the advertiser check whether their advertising message complies. The SRC site provides the DAC rules, judgements from the Advertising Code Committee and the Board of Appeal since 2007, Check SRC, and under certain conditions, access to copy advice for draft advertising.
https://www.reclamecode.nl/english/
The Dutch Advertising Code:
https://www.reclamecode.nl/nrc/
https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en (EN)
The Code for Games of Chance, in full the Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015, is within the above Dutch Advertising Code. The original (and applicable) Dutch version is here:
The Advertising Code for Online Gambling 2023. Reclamecode Online Kansspelen (ROK). This advertising code is an initiative of the Licensed Dutch Online Gaming Providers (VNLOK), endorsed by the Dutch Online Gambling Association (NOGA). From the introduction: 'The ROK relates to a new category of games of chance admitted to the Dutch market: online games of chance. In addition, a few provisions also relate to other games of chance. As with the RVK (the code for Games of Chance), the ROK only relates to advertising for (online) games of chance offered by license holders. Advertising for unlicensed games of chance is prohibited. The code closely follows the Gambling Act and, more importantly in this context, the Decree on Recruitment, Advertising and Prevention of Gambling Addiction and the Regulation of the same name. These statutory mechanisms bring a prohibition of 'untargeted' advertising, close attention to restraint, measures on role models and curtailing of sponsorship, all of which are reflected in the ROK.
https://www.reclamecode.nl/nrc/reclamecode-online-kansspelen-rok-2021/ (NL)
The link below is to the SRC English translation:
https://www.reclamecode.nl/nrc/advertising-code-for-online-games-of-chance/?lang=en
Dutch Advertising Code General Section A. Relevant articles: 8 Misleading Advertising; 13 Comparative Advertising; 14 Aggressive Advertising; Annex 1: circumstances where advertising is considered misleading Annex 2: Circumstances where advertising is considered aggressive (esp. Annex 2 (1): persistent and undesirable pressure in telephone calls, faxes, e-mail or other means of communication). The English version of Section A is here:
https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en
Code for the Distribution of Advertising by Email. Following the ban on spam email for business in October 2009 (amending Art 11.7 of Telecommunications Act), this code replaced the separate consumer and business codes and does not distinguish between the two. The code contains further consent requirements: consent can only be provided by an action e.g. clicking / ticking a box; it is not sufficient that the recipient agrees to the terms and conditions or a privacy statement (Art.1.3a). The Code introduces the concept of a label (brand or company name) which must be included in the ‘From’ field, and an active reply address must also be included. The Code also includes provisions for ‘Tell-a-friend’ schemes (Art. 1.5); in this case, the advertiser must state the name of the sender (initiator) in the ’From’ and ’Reply to’ fields. The English version of the code is here, extracted from the full DAC:
https://www.reclamecode.nl/nrc/code-for-distribution-of-advertisements-by-e-mail-2012/?lang=en
Social media
Social Media and Influencer Advertising Code 2022 (Reclamecode Social Media RSM). This code requires that advertising via bloggers, vloggers and content creators must be clearly recognisable as such, and sets out examples by platform on how this should be achieved. The Code was amended in July 2022 in order to reflect developments from the media authority; see below under the General tab for more. The translation linked below is unofficial and non-binding and will be replaced by the SRC version when available
NL: https://www.reclamecode.nl/nrc/reclamecode-social-media-rsm/
EN: http://www.g-regs.com/downloads/NLGenSMInfluencerCode2022EN.pdf
Gambling industry
Gaming in Holland http://www.gaminginholland.com is 'the leading platform for gaming and lotteries in Holland; 1600+ members.' Their website is light on a member’s list or any regulatory positions or publications. They are referenced on the EGBA website.
Netherlands Online Gambling Association. 'NOGA is the Dutch trade association of online gambling companies that bet on safe and responsible participation in online gambling' (from their website). NOGA's statement on gambling advertising can be accessed via the second link below. The draft code referenced in our Section A can also be accessed from the link.
https://no-ga.nl/en/noga-on-gambling-advertising/
Vergunde Nederlandse Online Kansspelaanbieders. VNLOK describes itself as the trade association for Licensed Dutch Online Gaming Providers. From their website: 'VNLOK offers a central point of contact and is a knowledge supplier for relevant stakeholders. The members set up activities to prevent addiction among online gambling players. In addition, the members are initiators of the Advertising Code of Games 0f Chances (ROK) with which they wish to reach sector-wide agreements about, among other things, the amount of advertising for online games of chance.' The code was accessible from the NOGA link above at the time of research.
https://vnlok.nl/
EGBA
BRUSSELS, 28 April 2020 – The European Gaming and Betting Association (EGBA) has today published the first pan-European Code of Conduct on responsible advertising for online gambling. The Code is broad in scope and introduces essential standards for advertising content, across all media platforms, and dedicated measures for social media. The Code has a particular focus on minor protection. The “Code of Conduct on Responsible Advertising for Online Gambling” intends to complement and strengthen existing legal and self-regulatory frameworks for online gambling advertising in Europe. The initiative has been developed in the context of the EU Audio Visual Media Services Directive, which emphasises the important role of self and co-regulation in protecting minors from exposure to gambling advertising. More here.
ICC
ICC Advertising and Marketing Communications Code 2018
ICC Advertising and Marketing Communications Code 2024
https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf
Chapter A: Sales Promotion
Chapter B: Sponsorship
Chapter C: Direct Marketing and Digital Marketing Communications
Chapter D: Environmental Claims in Marketing Communications
Chapter E: Children and Teens (2024 code)
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
Guidance on Native advertising:
http://www.g-regs.com/downloads/ICCGuidanceonNativeEn.pdf
GDPR
Regulation (EU) 2016/679 of The European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force on May 25 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018.
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Five more recent, significant papers in the GDPR context:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: on 17 December 2021, the European Commission adopted Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC and pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.
Article 28b addresses video-sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states were required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
e-Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
e-Commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925
Consumer protection
Book 6 Dutch Civil Code (Burgerlijk Wetboek Boek 6) Title 3 Unlawful acts; Section 3A Unfair Commercial Practices inserted into Book 6 by Article 2A of the Law of 25 September 2008 (NL) implementing the Unfair Commercial Practices Directive UCPD 2005/29/EC into national law by amending Books 3 and 6 of the Dutch Civil Code and the Consumer Protection (Enforcement) Law 2007. Section 4 Misleading and Comparative Advertising. Act of 28 March 2002 aligning Book 6 of the Civil Code with Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising; subsequently updated by Act of 25 September 2008 bringing Volumes 3 and 6 of the Civil Code and other Acts into line with Directive 2005/29/EC. Enforced by the Dutch Consumer Authority, since April 2013 the Dutch Authority for Consumers & Markets ACM. Book 6 was further amended in May 2022 as a result of transposition of commercial practices provisions set out in Directive 2019/2161, which inter alia amended the UCPD Directive 2005/29/EC to introduce new rules related to transparency of parameters for search results and the integrity of consumer reviews. Articles 193c and 193e are amended together with additions to the 'blacklist' set out under article 193g.
NL: https://wetten.overheid.nl/BWBR0005289/2023-01-01
English translation below does not include amends via Act of March 29, 2016 consisting of three new paras under article 194; amend shown below the first link; neither does the translation include new clauses as outlined above as a result of amends from Directive 2019/2161. The key clauses are shown in English in a separate file here.
http://www.dutchcivillaw.com/civilcodebook066.htm
http://www.g-regs.com/downloads/NLGenDCCBk6Art194AmendsEN.pdf
Authority
ACM: Autoriteit Consument & Markt; Consumers and Markets Authority. The Consumer Authority, Competition Authority, and the Independent Post and Telecommunications Authority joined forces appropriately on April 1st 2013, creating a new regulator: the Netherlands Authority for Consumers and Markets. This merger has been authorised in the Establishment Act of the Netherlands Authority for Consumers and Markets (NL). ACM is an independent regulator that champions the rights of consumers and businesses, is charged with competition oversight, sector-specific regulation, and enforcement of consumer protection laws. Importantly in this context, the ACM publish Guidelines Sustainability Claims (EN 2023 version) which provides their 5 'rules of thumb' related to sustainability claims, included within which document is the legal context and relevant cases. This is a significant addition to the regulatory line-up for environmental claims. The ACM announcement of ‘Stricter Rules for Online Sellers’ (NL) May 27, 2022 includes reference to the new search and review rules from Directive 2019/2161 as well as plans for promotional pricing rules (see below).
https://www.acm.nl/en
Pricing
Product Pricing Decree.(Besluit prijsaanduiding producten). Decree of 21 May 2003 containing rules relating to the price indication of products to replace the Decree on the price indication of goods 1980 in connection with the adaptation to the system and terminology of the EC Directive on the stating of the price of products offered to consumers. Transposes the Product Pricing Directive (above under EU legislation):
https://wetten.overheid.nl/BWBR0015104/2023-01-01
Unofficial non-binding translation:
http://www.g-regs.com/downloads/NLProductPricingDecree2022ENb.pdf
Prices Act (Prijzenwet) Act of March 24, 1961, laying down rules on the prices of goods and services. This law provides intervention powers for the minister of Finance in the form of price-capping during extreme economic circumstances. It is also the vehicle, under article 2b, for further regulation of price reduction announcements, which is drawn from new promotional pricing provisions from Directive 2019/2161. Explanatory note March 2022 from Maverick Avocaten/ Lexology here.
https://wetten.overheid.nl/BWBR0002353/2022-05-28
Channel legislation
Media Act 2008 (Mediawet). Act No. 583 of 29th December 2008 established the Media Act, entry into force 01/01/2009. Act No. 552 of 10th December 2009 amended the Media Act to implement the Audiovisual Media Services (AVMS) Directive 2010/13/EU, and the Act of 30 September 2020 amended the Media Act according to Directive 2018/1808, which amended the AVMS Directive. The Act sets requirements for both public and commercial broadcasters, including rules for commercials, sponsorship, product placement and teleshopping, as well as online 'audiovisual media services', the implications of which are in debate. Chapter 3a (NL) brings video-sharing platforms into scope: article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider. The content rules from the Directive, i.e. those to do with protection of young people, health and safety, the environment etc., are transposed into the DAC, with which commercial and public broadcasters must be affiliated under the terms of articles 3.6 and 2.92 respectively. Programmes on public channels may accordingly carry advertising; product placement is prohibited but permitted for commercial channels subject to the conditions outlined in Arts 3.19a/b. Sponsorship is allowed in both, but subject to strict conditions for public broadcasting services. STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Netherlands Public Broadcasting's television, radio and online outlets (Art. 2.91(2)).
https://wetten.overheid.nl/BWBR0025028/2023-01-01 (NL)
Media Decree (Mediaregeling) 2008 NL. December 18, 2008, a ministerial regulation implementing rules of the Media Act 2008. Chapter II, Title 2.2.2 Advertising and Teleshopping Messages, Articles 10 and 11. The Media Regulation 2008 contains implementing rules related to articles in the Media Act 2008.
Regulatory authority
The Dutch Media Authority: Commissariaat voor de Media (CvdM). This body upholds the rules formulated in the Media Act and Media Decree. The CvdM is an independent administrative body responsible for audiovisual content and distribution matters. It grants licences to broadcasters, registers VOD services, and systematically monitors compliance with the rules on quotas, advertising and protection of minors. The CvdM can also develop policy rules for public and commercial media, and publishes brochures in relation to those (see below): https://www.cvdm.nl/english/
The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here
https://www.cvdm.nl/uploader/meer-weten
Influencers/ 'video uploaders'
CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022, which require Influencers/ 'video uploaders' with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protection measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration by July 15, 2022. While the rules apply to Influencers, advertisers and agencies obviously need to be aware of them for contractual issues. Helpful commentary here from Osborne Clarke/ Lex May 2022.
Public broadcasting
CvdM re linked advertising
Public Media Broadcasting: ‘Aanhakende’ (Tie-in/ Linked) Advertising Brochure Dutch Media Authority Version 1.1 June 2011 NL. Tie-in / linked advertising is when there is a deliberate reference to a commercial entity close to editorial that covers the same subject. The brochure provides examples of such advertising, which violates the Media Act Article 2.89, which prohibits avoidable expressions (advertising/ teleshopping excluded) that clearly lead to the purchase of products or services being promoted.
e-Commerce
Book 3 Dutch Civil Code, Articles 15d and 15e. The act of 13th May 2004 implemented the E-commerce Directive 2000/31/EC; Article 1C of Act of 13/05/2004 inserted Article 15d and 15e into Book 3 of the Civil Code, which relates to requirements from an Information Society Service provider (i.e. commercial websites, broadly) NL:
https://wetten.overheid.nl/BWBR0005291/2022-11-04#Boek3
English version Book 3:
http://www.dutchcivillaw.com/civilcodebook033.htm
e-Privacy
Telecommunications Act (Telecommunicatiewet). Article 11.7 implements Article 13 of the e-Privacy Directive 2002/58/EC on the sending of unsolicited commercial communications by email, fax, automated calling systems, for which opt-in consent is required, notwithstanding soft opt-in exception in Article 11.7 (2/3). Article 11.7a implements article 5.3 of the e-Privacy Directive, sometimes called the cookie clause, via Act 10th May 2012 NL and further amended by Act 4th Feb 2015 NL; the amends included an additional exception shown in Article 11.7a (3b) to the required prior informed consent rule for the placing of cookies and similar software, and a ban on the use of cookie walls by public agencies (Art. 11.7a (5) TA). The amendment in May 2018 took account of the arrival of the GDPR, recognised in this legislation, and there was a further amendment in July 2021 that prohibits unsolicited calls to consumers and abolishes the Do Not Call Register.
https://wetten.overheid.nl/BWBR0009950/2023-06-01 (NL)
http://www.g-regs.com/downloads/NLTelecomsActJuly2021versionNoteEN.pdf (EN key clauses)
National GDPR implementation and authority
Implementation Act General Data Protection Regulation. (Uitvoeringswet Algemene Verordening gegevensbescherming 'UAVG'). Law of 16 May 2018, laying down rules for implementing Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC:
http://wetten.overheid.nl/BWBR0040940/2018-05-25
The Data Protection Authority (Autoriteit Persoonsgegevens - AP)
AP website (EN):
https://autoriteitpersoonsgegevens.nl/en
Guidance on advertising and direct marketing:
https://autoriteitpersoonsgegevens.nl/nl/onderwerpen/internet-telefoon-tv-en-post/direct-marketing (NL)
Stichting Reclame Code (SRC); The Advertising Code Foundation, the Netherlands Self-Regulatory Organisation. In addition to dealing with complaints, the SRC also helps advertisers to avoid any violation of the Dutch Advertising Code (DAC) e.g. via www.checksrc.nl, which helps the advertiser check whether their advertising message complies. The SRC site provides the DAC rules, judgements from the Advertising Code committee and the Board of Appeal since 2007, Check SRC, and under certain conditions, access to copy advice for draft advertising.
The Dutch Advertising Code (Nederlandse Reclame Code - NRC)
Section A: General EN; Blacklist in Annexes 1 and 2 EN
May 2022 clauses resulting from the transposition of Directive 2019/2161 in English here
Section B: Special Advertising Codes (EN). A selection of these is below. See the linked ‘Section B’ for the full complement
Section C: General Recommendations:
https://www.reclamecode.nl/nrc_taxonomy/algemene-aanbevelingen/ (NL)
https://www.reclamecode.nl/nrc/general-recomendations/?lang=en (EN)
Social Media and Influencer Advertising Code 2022. This code requires that advertising via bloggers, vloggers and content creators must be clearly recognisable as such, and sets out examples by platform on how this should be achieved. The code was amended in July 2022 in light of new rules from the media authority CvDM (see above).
https://www.reclamecode.nl/nrc/reclamecode-social-media-rsm/ (NL)
Full Dutch Advertising Code in English:
https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en
And in Dutch:
https://www.reclamecode.nl/nrc/
Social media
Social Code: YouTube. The code was developed by a group of 20 YouTubers in collaboration with the Dutch Media Authority (Commissariaat voor de Media CvdM) following an investigation by CvdM, which concluded that 75% of popular vlogs on YouTube contained surreptitious advertising. The code was also discussed with other parties, including the Advertising Code Foundation (SRC - Stichting Reclame Code), Multi-Channel Networks (MCNs) and interest groups/ agencies. Social Code: YouTube NL / EN. CvdM commentary:
DDMA
Data Driven Marketing Association (DDMA). The DDMA is the trade organisation for data driven marketing & advertising in the Netherlands. DDMA represents the interests of users, service providers and media/ carriers of data driven marketing, both in the Netherlands and at a European level. The DDMA has 300 member organisations. http://www.ddma.nl/
Full list of DDMA Codes can be found here:
DDMA codes are incorporated within the Dutch Advertising Code Section B
Opt-out registers
Telemarketing: Dutch regulator ACM and Stichting Infofilter run the don’t-call-me register, from 1/10/2009. Article 11.7 (6-12) of the Telecommunications Act contains provisions related to opt-out registers. The Telemarketing Code within the Dutch Advertising Code also refers to the opt-out register and places the onus on the advertiser to inform the consumer in every conversation of the existence of the Do-not-call-registry. Companies cannot register i.e. no ‘legal persons’ https://www.bel-me-niet.nl/. The ACM enforces legislation on telemarketing.
Direct Mail: Since 1st October 2009, Stichting Postfilter has been responsible for The National Post Register, which allows consumers to opt out of receiving unsolicited advertising mail. The Stichting Reclame Code oversees the enforcement of the rules. The Advertising Code for the Use of The Postal Filter also contains relevant provisions:
http://www.g-regs.com/downloads/DACPostalFilterCode2015.pdf
ICC
ICC Advertising and Marketing Communications Code 2018:
(non-exhaustive)
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principl