SECTION C - TV INC VOD & RADIO

Incorporates December 2021 Online Gambling Code (NL)

​The SRC English translation of the code is here 

The rules below are extracts only, for reasons of space. This is sensitive territory, so the full codes should be reviewed

BROADCAST ADVERTISING FOR ONLINE GAMBLING PROHIBITED AS OF JULY 1, 2023

• The content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
• Principal source of rules for gambling marcoms was the Advertising Code for Games of Chance (GoCC; EN) and for general rules, applicable to all sectors, Section A – Dutch Advertising Code (DAC; EN)
• The Games of Chance Code remains in force, but the October 2021 opening of the online gambling market has brought new rules, in part in the form of the December 2021 Online Gambling Code (NL) from the Self-Regulatory Organisation SRC, English translation of which is here. There is some overlap between the two codes: how they relate is explained under article 1. The Online Gambling Code's rules related to this channel are shown in the table immediately below; the GoCC rules follow the table

• The general channel (i.e. placement) rules also apply; these are set out under the General tab below and cover rules such as those for programme sponsorship and product placement
• Games of Chance providers are not allowed to sponsor activities of third parties or radio and / or television shows with the exception of a neutral reference to sponsorship of media offering, mainly or explicitly directed at minors, save the sponsorship is exclusively meant to motivate minors to commit themselves in the interest of their organisation, school, club or association to the canvassing of adult participants in Games of Chance (Art 7, GoCC) 
• Linear television services shall not include any Games of Chance Advertising between 6:00 a.m. and 7:00 p.m. (see below). 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 (Art. 11 GoCC)
• Reference the para immediately above, the Media Act 2008 (NL Jan 2023) under article 3.7 prohibits for both public and commercial services that Games of Chance for which a license as referenced in articles 14a, 15  23, 27g and 31 of the Games of Chance Act is required, or which are played on a machine in a slot machine hall for which a license is required, between 06.00 and 21.00 o'clock (italics ours).The links include sports betting and online/ remote games of chance
• No Games of Chance shall be advertised by means of and relating to media specifically directed at minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.) art. 6, Section 6, GoCC

SECTION C: TV & RADIO/ AV

KEY RULES AND SOURCES 

• The content rules shown in our earlier section B apply to these channels; the principal source of rules is the Dutch Advertising Code (DAC; EN)
• The DAC is the official repository for content rules transposed from the AVMS Directive; under the terms of the Media Act 2008 (NL, Jan 2023) articles 3.6 and 2.92 for commercial and public broadcasters respectively, broadcasters are required to be affiliated with the DAC
• The latest English version of the DAC does not reflect the amendments to content rules, albeit not really significant in this context, that Directive 2018/1808 provided to the AVMS Directive; content amends to the directive are shown here. It does now
• The principal channel  (i.e. placement) rules in this context are from the Media Act 2008 implementing aspects of the AVMS Directive and its amendment Directive 2018/1808, e.g. rules on sponsorship and product placement 
• There is some uncertainty around the Act’s 2020 provisions transposed from the amending Directive, the purpose of which was to recognise and address a media landscape shaped by ‘the ongoing convergence of television and internet services’ (recital 1, 2018/1808 Directive). This uncertainty manifests itself especially with regard to Influencers/ vlogging, as they can fall under the definition of a ‘media service on demand’. See this helpful piece from Field Fisher Netherlands here and a significant article from the DDMA (Data Driven Marketing Association of the Netherlands) counsel here (NL)
• An important view on the above issue is from the regulator group ERGA whose December 2021 paper Analysis and recommendations concerning the regulation of vloggers carries an annex with national examples, which includes the Netherlands (5)
• Meanwhile, the Dutch Media Authority (CVDM; link is to the page on the amended Media Act) supervises compliance with the Media Act 2008, issuing regulations/ guidelines related to the Act's requirements. These are linked below in their respective contexts and for our (advertising) purposes address principally product placement and sponsorship, essentially unchanged in the amended Media Act, in part because these elements are unchanged in the revised Directive

COMMERCIAL CHANNELS 

Incorporates TV and Radio and On-demand

• Arts 3.6 - 3.14 Media Act 2008 (NL March 2022) sets out the base rules for advertising/ teleshopping, 3.15 - 3.19 for sponsorship and 3.19a-c for product placement 
• Dutch Media Authority (CVDM) regulations (these look dated but remain on the CvDM website as at January 2022):

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

SECTION C TV/AV AND RADIO

EASA Jan 2024 update on the AVMSD

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
• The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

Article B12: Media sponsorship

• The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

​

SECTION C - CINEMA, PRINT, OUTDOOR

'UNTARGETED' ADVERTISING INCLUDING OUTDOOR FOR ONLINE GAMBLING PROHIBITED AS OF JULY 1, 2023

 NEW ONLINE GAMBLING CODE EFFECTIVE JULY 1 2023, THE NL VERSION HERE AND UNOFFICIAL TRANSLATION HERE

THESE RULES HAVE NOT YET BEEN APPLIED IN THIS SECTION. SEE THE LINKED CODE

• The content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
• Principal source of rules for gambling marcoms was the Advertising Code for Games of Chance (EN) and for general rules, applicable to all sectors, Section A – Dutch Advertising Code (DAC; EN)
• The Games of Chance Code remains in force, but the October 2021 opening of the online gambling market has brought new rules, in part in the form of the December 2021 Online Gambling Code (NL) from the Self-Regulatory Organisation SRC, an SRC English translation of which is here. There is some overlap between the two codes: how they relate is explained under article 1 of the Online Code, rules from which for these channels are shown in the table immediately below; the GoCC rules follow the table

• No Games of Chance shall be advertised by means of and relating to media specifically directed at Minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.) art. 6, Section 6, Games of Chance Code
• Free counters for casino games or slot machines shall not be distributed through national newspapers or free local papers with a national reach
• Games of Chance advertising is not allowed on billboards, swanks (scaffold advertising), 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 (Art. 8, Section 6, Code of Games of Chance). 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

SECTION C: CINEMA, PRINT, OUTDOOR

  CINEMA

• Content rules set out in our earlier section B apply in cinema; the key set of rules is the Dutch Advertising Code (EN)
• Under this ‘General’ tab, the cinema medium does not attract specific channel (i.e. placement) rules. Some regulation-sensitive product categories, such as alcohol, are subject to cinema-specific rules. See sector tabs on the WikiRegs home page
• SAWA is the Screen Advertising World Association: http://www.sawa.com/.

PRINT

• See Direct Postal Mail entries later in this channel section for mailshots/ print advertising in mail
• Content rules set out in our earlier section B will apply; the key set of rules is the Dutch Advertising Code (EN)
• Under this ‘General’ tab, the print medium does not attract specific channel rules. Some regulation-sensitive product categories, such as cars and alcohol, do have print-specific requirements. See sector tabs on the WikiRegs home page

SECTION C: CINEMA, PRINT, OUTDOOR

Applicable self-regulation and legislation 

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
• The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
• In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below)

Refer to Content Section B for provisions; of particular relevance below:

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

Identity of the marketer (Art. 8)

• The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').

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

Article B12 Media sponsorship

• The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

The Online Gambling Code (NL) was introduced in December 2021

​An SRC English translation of the code is here 

The rules below are extracts only, for reasons of space. This is sensitive territory, so the full codes should be reviewed

'UNTARGETED' ADVERTISING INCLUDING OUTDOOR FOR ONLINE GAMBLING PROHIBITED AS OF JULY 1, 2023

ONLINE ADVERTISING MUST TAKE SPECIAL CARE TO AVOID VULNERABLE GROUPS 

 NEW ONLINE GAMBLING CODE EFFECTIVE JULY 1 2023, THE NL VERSION HERE AND UNOFFICIAL TRANSLATION HERE

THESE RULES HAVE NOT YET BEEN APPLIED IN THIS SECTION. SEE THE LINKED CODE

• This section provides the broad regulatory picture for gambling marcoms in the commercial digital environment in The Netherlands. More specific channel rules such as email, OBA etc. follow
• In principle, advertising online is subject to the rules in owned and (some) earned space as well as paid. This makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment:
• The DAC provides under article 1 Section A the definition '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 solicitation of services is also defined as advertising.'
• Marketers’ own marketing communications on their own websites and other online space under their control (for example their SNS pages) are also ‘in remit.’ There’s a specific header on own websites later in section C

• The content rules set out in our earlier section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
• Principal source of rules for gambling marcoms was the Advertising Code for Games of Chance (EN) and for general rules, applicable to all sectors, it's Section A-Dutch Advertising Code (DAC; EN) 
• The Games of Chance Code remains in force, but the October 2021 opening of the online gambling market has brought new rules, in part in the form of the December 2021 Online Gambling Code (NL) from the Self-Regulatory Organisation SRC, an SRC English translation of which is here. There is some overlap between the two codes: how they relate is explained under article 1 
• The Online Gambling Code's rules for these channels are shown in the table immediately below; some commentary is excluded and should be accessed in the linked code. The GoCC rules follow beneath the table 

​

• Rules also related to online gambling include under article 4a of the Gambling Act (NL): '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.'
• No Games of Chance shall be advertised by means of and relating to media specifically directed at Minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.) Art. 6, Section 6 Code of Games of Chance
• Games of Chance advertising shall not be specifically directed at socially vulnerable persons
• While data processing per se is not covered by the rules of the Games of Chance Code, it's obviously the case that processing the data of minors (U18) would be inappropriate, given the blanket ban delivered by Article 6 Section 6 of the Code referenced above. See GDPR references below

Online Advertising and IPR: How to Promote Responsible Advert Placement

June 2022. A webinar organised as part of EGBA's promotion of responsible advertising and its support for the EC-led memorandum of understanding (MoU, see here) which aims to reduce IPR-infringing online advertising. As signatory to the MoU, EGBA is committed to promoting its objectives to the wider gambling sector

‘General’ rules are set out in full below under the General tab. A ’snapshot’ of the most significant in this context follows

• The online channel is subject to significant legislation in unsolicited commercial communications and e-Commerce; 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
• Information requirements for information society services and sending of online commercial communications as per e-Commerce Directive 2000/31/EC can be found in Articles 15d and15e Book 3 Dutch Civil Code EN / NL 
• If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors
• A significant issue online, and in the gambling sector, is the recognisability of commercial communications. There are provisions in article 15e of Book 3 of the Dutch Civil Code linked above which include: ‘that the commercial communication is clearly recognisable as such’
• The issue is also covered by Article 11.1 DAC: ‘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.’ Further information under the General tab below
• If advertising constitutes an ‘Invitation to purchase’ Definition 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 Article 193e from Book 6 of the Dutch Civil Code (EN) covers information requirements. The linked translation does not include amends to this article from the transposition of search ranking and consumer survey requirements from Directive 2019/2161. Clauses are shown here in English as reflected in the DAC under article 8. The Jan 2023 NL version of article 193e is here 

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

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

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

....................................................

• Per the introduction above, online advertising is subject to the rules set out in content section B. The key set of rules is from the Dutch Advertising Code (EN). A significant issue in online’s less structured environment is the identification of advertising, hence in this case opening with recognisability rules, but if it’s advertising, it’s in remit and therefore subject to all the rules

RECOGNISABILITY: SELF-REGULATION

• Article 11.1 DAC: An advertisement shall be recognisable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended
• SRC Check Recognisability NL: on the Internet, an advertisement must be easily identifiable as such. When content on websites is specifically associated with a particular product, advertising will usually be involved. Under no circumstances may the consumer be misled, for example by giving the impression that it is an ‘official‘ newsflash/ message. See case 2011/00311 

RECOGNISABILITY: LEGISLATION

• Article 15e (1) Book 3 Civil Code (EN) from the e-Commerce Directive 2000/31/EC: Where commercial communications form part of, or constitute, an information society service Definition Any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the service without parties having been simultaneously present at the same placethe one who has instructed to use this way of communication must ensure that: 

1. The commercial communication is clearly recognisable as such
2. That his identity can be deduced from the commercial communication
3. That the commercial communication, as far as it encloses promotional offers, competitions or games, contains a clear and unambiguous indication of the nature and the conditions which have to be met to qualify for them
4. That unrequested commercial communication, sent electronically, is clearly and unambiguously recognisable as such as soon as it is received by the recipient

• The Dutch Civil Code Book 6 (EN; not up-to-date with May 2022 clauses; see section A Overview and section B Content), home of some commercial communication rules from the Unfair Commercial Practices Directive 2005/29/EC, includes misleading omission rules under article 193d; under article 193g - Commercial practices which are misleading in all circumstances - point v: 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; and k: 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’)
• The Media Act (NL; Jan 2023), since its amendment as a result of Directive 2018/1808 bringing video sharing platforms into remit, is interpreted to include Influencers/ 'video uploaders' in its scope. The media authority CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022 which require Influencers 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 protetction measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration was by July 15, 2022

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

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

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels, online included
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth platforms online; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (linked above): Direct Marketing and Digital Marketing Communications; extracts below under 'self-regulatory clauses'
• ICC Guide for Responsible Mobile Marketing Communications
• EASA Best Practice Recommendation on Digital Marketing Communications 2023
• EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023. This is a helpful piece setting out the requirements and restrictions of various EU legal instruments

Online Deals Do's And Don'ts For Online Business Under EU Law

Logan & partners/ Mondaq November 28, 2023

• Directive 2002/58/EC on privacy and electronic communications

• 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 

Also be aware of:

The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation

The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market

The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)

Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth

And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry

And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 

Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts) 

C1. Identification and transparency

• Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
• Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
• Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
• Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

C2. Identity of the marketer

• The identity of the marketer and/ or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return.
• At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer

SECTION C: COOKIES AND OBA

Privacy issues should be reviewed with specialist advisors

The rules below are extracts only, for reasons of space. This is sensitive territory, so the full codes should be reviewed

'UNTARGETED' ADVERTISING INCLUDING OUTDOOR FOR ONLINE GAMBLING PROHIBITED AS OF JULY 1, 2023

ONLINE ADVERTISING MUST TAKE SPECIAL CARE TO AVOID VULNERABLE GROUPS 

 NEW ONLINE GAMBLING CODE EFFECTIVE JULY 1 2023, THE NL VERSION HERE AND UNOFFICIAL TRANSLATION HERE

THESE RULES HAVE NOT YET BEEN APPLIED IN THIS SECTION. SEE THE LINKED CODE

• While there are no rules particular to the gambling sector’s use of cookies per se, any form of targeting of minors is prohibited
• New rules related to online gambling include under article 4a of the Gambling Act (NL): '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 6 Section 6 of the Games of Chance Code prohibits advertising ‘by means of and related to’ media specifically directed at minors. The same applies to other ‘vulnerable groups’
• The general cookie rules, i.e. those that apply to all sectors gambling included, are shown below under the General tab; these were amended in March 2015 to exclude the consent requirement for cookies that ‘have little or no impact on the privacy of end-users’. Full information under the General tab below

• The content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
• Principal source of rules for gambling marcoms was the Advertising Code for Games of Chance (EN) and for general rules, applicable to all sectors, it's Section A – Dutch Advertising Code (DAC; EN); also see developments in legislation covering online gambling in our earlier section B
• The Games of Chance Code remains in force, but the October 2021 opening of the online gambling market has brought new rules, in part in the form of the December 2021 Online Gambling Code (NL) from the Self-Regulatory Organisation SRC, an SRC English translation of which is here. There is some overlap between the two codes: how they relate is explained here.
• The Online Gambling Code's rules for these channels are shown in the table immediately below; the GoCC rules follow underneath the table

• Channel rules from October 2021 related to the introduction of online gambling include under article 4a of the Gambling Act (NL): '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.'
• A Games of Chance Provider shall not specifically target for instance minors and persons he knows to present characteristics of risky gaming behaviour (from explanation to Section 6, Games of Chance Code)
• The general channel (i.e. placement) rules also apply; these are set out under the General tab below; the processing of personal data in this context may be subject to lawful processing rules from the GDPR, and there are information requirements when making an 'invitatio to purchase.' More below under the General tab

SECTION C: COOKIES AND OBA

COOKIES
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

• Key statutory provision: article 11.7a Telecommunications Act (TA) NL / EN implements article 5.3 of the e-Privacy Directive 2002/58/EC, amended by Directive 2009/136/EU, aka the cookie clause
• Issues may arise from the introduction of the GDPR 2016/679 from May 25, 2018: some interpretation is that when cookies identify individuals, then GDPR lawful processing rules may apply (the above linked Telecoms Act clauses have been amended to reflect/ recognise GDPR). Privacy issues should be reviewed with specialist advisors

SECTION C: COOKIES AND OBA

'It’s time to move': Google on Global Ads on cookie deprecation, privacy regulation, AI

Campaign Asia February 29, 2024

Consent Rules Apply to Broader Range of Tracking Technologies

McDermott Will &Emery January 18, 2024

EASA Jan 2024 update on the Commission's cookie pledge and GDPR

New EDPB guidelines on the scope of the ‘cookie rule’. DLA Piper Nov 22, 2023

Guidelines here. This is re technical scope 

'Reject All' button in cookie consent banners - An update from the UK and the EU

Reed Smith LLP/ Lex November 8, 2023

Data Privacy Landscape in the EU. Simmons + Simmons October 25, 2023*

Covers interplay between the AI act, the DSA and GDPR 

Files prior to the above date here 

Applicable legislation, self-regulation and guidance 

Note that legislation is implemented in member states, sometimes with nuance 

• e-Privacy Directive 2002/58/EC, as amended by the ‘Cookie Directive’ 2009/136/EC
• The introduction of the GDPR 2016/679 from May 25, 2018 

• 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

• February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here

• 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

• Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user (Art. 5.3)

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

The Online Gambling Code (NL) was introduced in December 2021

​An SRC English translation of the code is here

The rules below are extracts only, for reasons of space. This is sensitive territory, so the full codes should be reviewed

'UNTARGETED' ADVERTISING INCLUDING OUTDOOR FOR ONLINE GAMBLING PROHIBITED AS OF JULY 1, 2023

ONLINE ADVERTISING MUST TAKE SPECIAL CARE TO AVOID VULNERABLE GROUPS 

 NEW ONLINE GAMBLING CODE EFFECTIVE JULY 1 2023, THE NL VERSION HERE AND UNOFFICIAL TRANSLATION HERE

THESE RULES HAVE NOT YET BEEN APPLIED IN THIS SECTION. SEE THE LINKED CODE

• For gambling advertising specifically, whatever the form of communication, the content rules set out in Section B must be observed (excepting those for audiovisual communications), as must the general advertising rules
• Principal source of rules for gambling marcoms was the Games of Chance Code (EN) and for General (i.e. all sectors) rules in the Netherlands it’s Section A – Dutch Advertising Code (DAC; EN)
• The Games of Chance Code remains in force, but the October 2021 opening of the online gambling market has brought new rules, in part in the form of the December 2021 Online Gambling Code (NL) from the Self-Regulatory Organisation SRC, their English translation of which is here. There is some overlap between the two codes: how they relate is explained under article 1.
• The Online Gambling Code's rules for these channels are shown in the table immediately below; the GoCC rules follow underneath the table 

​

• Rules related to online gambling include under article 4a of the Gambling Act (NL): '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.'
• The rules related to vulnerable groups will apply equally in electronic media as in offline channels. Article 6 Section 6 of the Games of Chance Code prohibits advertising ‘by means of and related to’ media specifically directed at minors. The same will apply to other ‘vulnerable groups’
• A Games of Chance Provider shall not specifically target for instance minors and persons he knows to present characteristics of risky gaming behaviour (from explanation to Section 6, Games of Chance Code)

Legislation

• Processing personal data in this context may also be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors 
• The Telecommunications Act (EN key clauses) Articles 11.7 (1), (2), (3), (4) on the use of electronic mail (which covers SMS and MMS); unsolicited communication for commercial, non-commercial (idealistic) or charitable purposes is only permitted if the recipient has provided prior consent (opt in) and the communication includes required information. The use of email for commercial purposes is also subject to information requirements under article 15e (1a-c) Book 3 Civil Code (EN), from the e-Commerce Directive
• If advertising constitutes an ‘Invitation to purchase’ Definition 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 article 193e from Book 6 of the Dutch Civil Code (EN) covers information requirements. The linked translation does not include amends to this article from the transposition of search ranking and consumer survey requirements from Directive 2019/2161. Clauses are shown here in English as reflected in the DAC under article 8. The Jan 2023 NL version of article 193e is here

Self-regulation

Full information under the General tab below

• Email (B2C and B2B) The 2012 Code for Distribution of Advertisements by E-mail (EN) is in Section B of the Dutch Advertising Code. This code reflects and supplements the provisions of the Telecommunications Act and the Civil Code; full information below under the General tab

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

KEY RULES AND THEIR SOURCE 

• Marketing communications via email/ SMS/ MMS are subject to the content rules set out in section B; the principal rules are from the Dutch Advertising Code (EN)
• In this channel rules context, the main regulatory issues are from self-regulation and legislation that deals with consent and information requirements. The Code linked above is comprehensive and reflects legislation closely, so the provisions below are largely self-regulatory, though there is a collection of statutory requirements at the base of this page
• If data processing involves personal data (that which identifies individuals), then lawful processing rules from the GDPR may apply
• If applicable (check with advisors), the core GDPR articles on Information to be provided to data subjects and their right to object are assembled here 

SELF-REGULATION

Email code from section B of the Dutch Advertising Code EN / NL. Key points from the code (below as EC):

• Opt-in consent: email advertising is in principle permitted if the recipient of the e-mail advertising has actively granted permission in advance to the database owner (1.3a EC)
• Soft opt-in: email advertising is also in principle permitted if the database owner has obtained the email address within the scope of a sale to or donation by the recipient and is used for offering similar products or services (including asking for donations by idealistic or charitable institutions), as long as no use is made of the possibility to unsubscribe in the same way as meant in article 5 of this code (the Right to Object). The obligation will not be met solely by including either a provision in the General Terms and Conditions or a privacy statement (1.1a EC)

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (full code linked above): Direct Marketing and Digital Marketing Communications
• General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
• Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
• Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
• GDPR may apply if processing personal data; check privacy issues with specialist advisors 
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

General provisions; refer to our earlier section B or the linked ICC document for full provisions. Of particular relevance below:

• When collecting personal data from individuals, care should be taken to respect and protect their privacy by complying with relevant rules and regulations

19.1. Collection of data and notice

• When personal data is collected from consumers, it is essential to ensure that the individuals concerned are aware of the purpose of the collection and of any intention to transfer the data to a third party for that third party’s marketing purposes. Third parties do not include agents or others who provide technical) or operational support to the marketer and who do not use or disclose personal data for any other purpose. It is best to inform the individual at the time of collection; when it is not possible to do so this should be done as soon as possible thereafter

19.2. Use of data

Personal data should be:

• collected for specified and legitimate purposes and used only for the purposes specified or other uses compatible with those purposes
• adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed
• accurate and kept up to date
• preserved for no longer than is required for the purpose for which the data were collected or further processed

19.3. Security of processing

• Adequate security measures should be in place, having regard to the sensitivity of the data, in order to prevent unauthorised access to, or disclosure of, the personal data.If the data is transferred to third parties, it should be established that they employ at least an equivalent level of security measures

19.4. Children’s personal data

• When personal data is collected from individuals known or reasonably believed to be children, guidance should be provided to parents or legal guardians about protecting children’s privacy if feasible
• Children should be encouraged to obtain a parent’s or responsible adult’s consent before providing personal data via digital interactive media, and reasonable steps should be taken to check that such permission has been given
• Only as much personal data should be collected as is necessary to enable the child to engage in the featured activity. A parent or legal guardian should be notified and consent obtained where required.
• Personal data collected from children should not be used to address marketing communications to them, the children’s parents or other family members without the consent of the parent
• Personal data about individuals known or reasonably believed to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide technical or operational support to the marketer and who do not use or disclose children’s personal data for any other purpose
• For additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7

19.5. Privacy policy

Those who collect personal data in connection with marketing communication activities should have a privacy policy, the terms of which should be readily available to consumers, and should provide a clear statement of any collection or processing of data that is taking place, whether it is self-evident or not. General provisions and definitions on advertising and marketing communications In jurisdictions where no privacy legislation currently exists, it is recommended that privacy principles such as those of the ICC Privacy Toolkit4 are adopted and implemented

19.6. Rights of the consumer

Appropriate measures should be taken to ensure that consumers understand their rights to e.g.:

• opt out of direct marketing lists
• opt out of interest-based advertising
• sign on to general direct preference services
• require that their personal data not be made available to third parties for their marketing purposes; and
• rectify incorrect personal data which are held about them

• Where a consumer has clearly expressed a wish not to receive marketing communications using a specific medium, this wish should be respected. Appropriate measures should be put in place to help consumers understand that access to content may be made conditional on the use of data. For additional rules specific to the use of the digital interactive media and consumer rights, see chapter C, article C9

19.7. Cross-border transactions

• Particular care should be taken to maintain the data protection rights of the consumer when personal data are transferred from the country in which they are collected to another country. When data processing is conducted in another country, reasonable steps should be taken to ensure that adequate security measures are in place and that the data protection principles set out in this code are respected. The use of the ICC model clauses covering agreements between the originator of the marketing list and the processor or user in another country is recommended

Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked code 

SECTION C: MARKETERS' OWN WEBSITES

Incorporates December 2021 Online Gambling Code (NL)

​An SRC English translation of the code is here 

The rules below are extracts only, for reasons of space. This is sensitive territory, so the full codes should be reviewed

'UNTARGETED' ADVERTISING INCLUDING OUTDOOR FOR ONLINE GAMBLING PROHIBITED AS OF JULY 1, 2023

ONLINE ADVERTISING MUST TAKE SPECIAL CARE TO AVOID VULNERABLE GROUPS 

 NEW ONLINE GAMBLING CODE EFFECTIVE JULY 1 2023, THE NL VERSION HERE AND UNOFFICIAL TRANSLATION HERE

THESE RULES HAVE NOT YET BEEN APPLIED IN THIS SECTION. SEE THE LINKED CODE

• These spaces are in remit in the Netherlands; that means that marketers’ own advertising/ marketing communications on their own websites are subject to industry and statutory marketing communication regulation, where communication is identied as in remit
• Advertising is defined in Article 1 of the 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. The solicitation of services is also defined as advertising”.

• Gambling content and targeting rules from our earlier section B will apply (to communications qualifying as marketing communications / advertising)
• A Games of Chance Provider shall not specifically target for instance minors and persons he knows to present characteristics of risky gaming behaviour (from explanation to Section 6, Games of Chance Code)
• Principal source of rules for gambling marcoms was the Advertising Code for Games of Chance (EN) and for General, i.e. all sectors, rules in the Netherlands Section A – Dutch Advertising Code (EN)
• The Games of Chance Code remains in force, but the October 2021 opening of the online gambling market has brought new rules, in part in the form of the December 2021 Online Gambling Code (NL) from the Self-Regulatory Organisation SRC, their English translation of which is here. There is some overlap between the two codes: how they relate is explained under article 1 
• The Online Gambling Code's rules for these channels are shown in the table immediately below; the GoCC and other rules follow after the table 

​

• Rules related to online gambling include under article 4a of the Gambling Act (NL): '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.'
• Prominently display a ‘no under 18’s’ or ‘no under 21’s’ sign on the homepage of the members’ websites, linking to a clear message about underage play (EGBA Standards)
• Commission Recommendation (not binding in law but important to be aware of) No. 2014/478/EU of carries a number of recommendations related to operator website information under Section III. Note that this recommendation applies to online Gambling
• Article 6 Section 6 of the Games of Chance Code prohibits advertising ‘by means of and related to’ media specifically directed at minors. The same will apply to other ‘vulnerable groups’

The Games of Chance Code (EN) under article 4 requires the following:

On the Internet page of the Games of Chance Provider, information can be obtained and perused regarding:

1. The specific features of the Games of Chance provided
2. The costs of participation
3. Other obligations related to participation or winning a prize
4. The ban on participation by minors
5. 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
6. What the risks are of excessive participation in Games of Chance
7. The form of participation: does it concern a one-time participation or a subscription
8. The manner of terminating the participation in Games of Chance
9. The manner in which the participant can easily unsubscribe to addressed advertising mail with the provider
10. The guarantee of privacy of the prize winners
11. The manner in which winners of big prizes can get independent advice about financial and legal matters
12. 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
13. 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
14. Volume and allocation of the profits of the Games of Chance. This point does not apply to operators of slot machines

• Processing personal data in this context may also be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors
• The general information obligations for information society service providers as set out in article 15d of Book 3 of the Civil Code (EN)
• Viral: there are some provisions on Tell-a-Friend email schemes in the Email Code (EN); article 1.5
• Where the marketer, or a distributor such as a blogger or vlogger on behalf of a marketer, is running a social media page, the Social Media and Infuencer Marketing Code (EN 2022) from the Dutch Advertising Code will apply; the DDMA (Dutch Dialogue Marketing Association) has produced a useful ‘Dos and Don’ts’ (EN) factsheet based on the Code
• If advertising constitutes an ‘Invitation to purchase’ Definition 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 Article 193e from Book 6 of the Dutch Civil Code (EN) covers information requirements. The linked translation does not include amends to this article from the transposition of search ranking and consumer survey requirements from Directive 2019/2161. Clauses are shown here in English as reflected in the DAC under article 8. The Jan 2023 NL version of article 193e is here 

SECTION C: MARKETERS' OWN WEBSITES

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

• The Dutch Advertising Code (EN) applies; in particular in this context articles 8.2, 8.3c; Invitation to Purchase in relation to a distance contract, article 8.4 (f-s). article 11, Recognisable advertising
• In May 2022, new clauses were introduced under article 8.3 of the DAC that transpose requirements from Directive 2019/2161 that address the transparency of search results and the veracity of consumer reviews. These provisions were also placed in legislation - in Book 6 of the Civil Code. Translations from the SRC are now completed; the relevant clauses can be found in the DAC linked above under article 8
• ‘SRC Check’ for Information Obligations NL. The preceding link will take you to the SRC Check service, which sets out Information requirements according to the ad and the channel. The automatic translation facility provides a pretty solid gist. The specific ‘column’ requirements for digital offers/ webshops are more formally translated here:
  http://www.g-regs.com/downloads/NLGenSRCCheckCol3.pd
• EASA’s Best Practice Recommendation Digital Marketing Communications 2023 establishes some exemptions in this context, such as User-Generated Content (unless endorsed by the marketer), under section 2 of the linked document
• ACM, the Authority for Consumers and Markets, and the Dutch Data Protection Authority AP, have combined to produce a joint ruling on ‘Tell-a-friend’ systems on websites here (EN)
• Email Code 2012 EN; from section B of the Dutch Advertising Code S.1.5; clauses set out in the earlier email header or from the linked code 
• Social Media and Influencer Advertising Code 2019 (SMAC) EN / NL; set out below. Explains disclosures on 'relevant relationship' with content creators. Influencer Marketing: Active Monitoring Mandatory! from GALA/ Lex October 2021 reports that advertisers can't rely on a contractual arrangement with influencers to protect themselves, but that they must 'make an active effort to ensure that the influencer complies with the rules'

• 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 

• Article15d Book 3 Civil Code EN requires ‘Providers of Information Society Services’ Definition Any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the serviceto make available to users certain information about the operator and its services; transposed from the e-Commerce Directive 2000/31/EC; clauses shown below 
• Article 193e from Book 6 of the Dutch Civil Code (EN) on Invitation to Purchase Definition 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
• In May 2022, Paragraphs 2 and 3 have been added to the above 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 
• If communicating with users, then personal data may be processed, which may require observation of the GDPR; equally, consent to marketing communications from the Telecommunications Act Article 11.7 (EN), which deals with cookie regulation and establishes the opt-in principle, may apply; check with advisors
• The Media Act (NL, March 2022) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications relating to recognisability; additionally, 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
• Building on the above, the media authority 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 was 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​

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); 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

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth-oriented content; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

SECTION C: NATIVE ADVERTISING

'UNTARGETED' ADVERTISING INCLUDING OUTDOOR FOR ONLINE GAMBLING PROHIBITED AS OF JULY 1, 2023

ONLINE ADVERTISING MUST TAKE SPECIAL CARE TO AVOID VULNERABLE GROUPS 

 NEW ONLINE GAMBLING CODE EFFECTIVE JULY 1 2023, THE NL VERSION HERE AND UNOFFICIAL TRANSLATION HERE

THESE RULES HAVE NOT YET BEEN APPLIED IN THIS SECTION. SEE THE LINKED CODE

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

• Per above context, the content rules set out in our earlier section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
• Principal source of rules for Gambling marcoms was the Advertising Code for Games of Chance (EN) and for General, i.e. all sectors, rules in the Netherlands it's Section A – Dutch Advertising Code (EN)
• The Games of Chance Code remains in force, but the October 2021 opening of the online gambling market has brought new rules, in part in the form of the December 2021 Online Gambling Code (NL) from the Self-Regulatory Organisation SRC, their English translation of which is here. There is some overlap between the two codes: how they relate is explained under article 1
• The Online Gambling Code's rules for native advertising do not differ significantly from the Games of Chance Code, or indeed the general rules; section 7.2 states dishonest online gambling advertising a) fails to make clear that the advertising originates from or is made on behalf of an Online Gambling Provider; the established rules related to age statements and the avoidance of minors apply for all forms of advertising, native included
• The Games of Chance Provider ensures that it is clear that any Games of Chance Advertising originates from a Games of Chance Provider (Art.2, Code for Games of Chance)
• A Games of Chance Provider shall not specifically target for instance minors and persons he knows to present characteristics of risky gaming behaviour (from explanation to Section 6, Games of Chance Code)
• In this Native context, albeit a content rule, a reminder that advertising is required to carry Responsibility and age messaging
• Significant adjudication vs Unibet here 

SECTION C: NATIVE ADVERTISING

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 

• Article 11 Recognisability of advertising. Dutch Advertising Code (DAC) Section A (EN)
• Art. 8.5 DAC; Annex 1 points 10 and 21
• SRC Check: Unfair advertising
• Case example: file number 2014/00327 NL, re an article on www.voetbalzone.nl about football matches and winning chances, which turned out to be advertising for Unibet, while it was presented as editorial content

Identifiable/ recognisable as advertising (Art. 11)

• Advertising must be identifiable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended (Art. 11.1)
• Advertising in audio-visual media must be clearly distinct from the rest of the programming by optical and/ or acoustic means. The use of subliminal techniques is prohibited. The use of elements from a broadcast programme in advertising is also prohibited in the event it can be reasonably assumed that the viewers or listeners would be misled or confused by it. The appearance in advertising of people who may be deemed, by virtue of their participation in broadcast programmes, to have influence or instil confidence in certain sections of the public is prohibited (Art. 11.2)

SECTION C: NATIVE ADVERTISING

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) 2018

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Guidance: ICC Guidance on Native Advertising here

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.' 

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels; the native technique is no different in that if it's advertising, it's subject to the rules
• These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

Identification and transparency (Art. 7)

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

Identity of the marketer (Art. 8)

• The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)

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 

SECTION C: DIRECT POSTAL MAIL

Incorporates December 2021 Online Gambling Code (NL)

​An SRC English translation of the code is here 

The rules below are extracts only, for reasons of space. This is sensitive territory, so the full codes should be reviewed

'UNTARGETED' ADVERTISING FOR ONLINE GAMBLING PROHIBITED AS OF JULY 1, 2023

OTHER ADVERTISING MUST TAKE SPECIAL CARE TO AVOID VULNERABLE GROUPS 

 NEW ONLINE GAMBLING CODE EFFECTIVE JULY 1 2023, THE NL VERSION HERE AND UNOFFICIAL TRANSLATION HERE

THESE RULES HAVE NOT YET BEEN APPLIED IN THIS SECTION. SEE THE LINKED CODE

• Content rules set out in our section B will apply for all DM marketing communications; principal source of rules for gambling marcoms was the Advertising Code for Games of Chance (EN) and for general, i.e. all sectors, rules it's Section A – Dutch Advertising Code (EN)
• The Games of Chance Code remains in force, but the October 2021 opening of the online gambling market has brought new rules, in part in the form of the December 2021 Online Gambling Code (NL) from the Self-Regulatory Organisation SRC, their English translation of which is here (does not include role model prohibition June 2022). There is some overlap between the two codes: how they relate is explained under article 1
• The Online Gambling Code's placement rules for this channel are largely related to the way in which data can be used/ users can be contacted, especially with regard to vulnerable groups including those who may have been subject to interventions. Provisions are spelt out in detail in the code under sections 8 and 9
• October 2021 rules related to online gambling include under article 4a of the Gambling Act (NL): '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.'
• Mail directed at minors or other members of vulnerable groups is prohibited under the terms of Section 6 of the Games of Chance Code
• Free counters for casino games or slot machines shall not be distributed through national newspapers or free local papers with a national reach

• Direct Mail in most countries, Netherlands included, is based on opt-out consent, i.e. permissible unless the recipient objects, or has registered on the Robinson list equivalent
• Processing personal data (that which identifies an individual) in this context may also be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors
• Advertising code for the use of the postal filter 2021 (EN)
• Flowchart for sending Direct Mail (addressed advertising via postal mail) here (EN)
• Code for the distribution of unaddressed printed advertisements 'Sticker Code' (EN)
• If advertising constitutes an ‘Invitation to purchase’ Definition 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 article 193e from Book 6 of the Dutch Civil Code (EN) covers information requirements. The linked translation does not include amends to this article from the transposition of search ranking and consumer survey requirements from Directive 2019/2161. Clauses are shown here in English as reflected in the DAC under article 8. The Jan 2023 NL version of article 193e is here

SECTION C: DIRECT POSTAL MAIL

Includes unaddressed door-to-door

• Content of commercial communications via Direct Postal Mail and other form of distribution shown below is subject to the rules of the Dutch Advertising Code (EN) and other statutory content rules set out in our earlier content section B except where those are online-specific 

​

SELF-REGULATION

• Letterbox advertising, door-to-door sampling and direct response advertising code Abbrev. LDDR. Most relevant in this context is letterbox advertising, defined as all advertising material which is distributed via the mail box or post box, whether by direct mail (addressed) or door-to-door (unaddressed), and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) EN / NL
• Advertising code for the use of the postal filter 2021 EN / NL
• Flowchart for sending Direct Mail (addressed advertising via postal mail) here
• Code for the distribution of unaddressed printed advertisements 'Sticker Code' SC  EN / NL

Addressed Direct Postal Mail - definitions and terms 

• Checklist for sending direct mail (addressed advertising mail): Post Filter Code Flowchart (as above)
• Letterbox advertising: all advertising material which is distributed via the mail box or post box and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) Note: applies to direct mail (addressed) or door-to-door (unaddressed); unaddressed door-to-door is covered separately below
• Direct response advertising: all advertising in which the goods, services or information offered can be obtained directly from the provider by means of a written, electronic or telephone response (Art. 1c LDDR)

SECTION C: DIRECT POSTAL MAIL

Applicable Self-regulation and legislation 

​

• National 'Robinson lists' or opt-out lists
• The General Data Protection Regulation 2016/679 for the processing of personal data
• Directive 2005/29/EC on unfair commercial practices (UCPD) 

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• The channel rules set out here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above

SECTION C: EVENTS/ SPONSORSHIP

The Online Gambling Code (NL) was introduced in December 2021

The SRC English translation of the Code is here 

The rules below are extracts only, for reasons of space. This is sensitive territory, so the full codes should be reviewed

'UNTARGETED' ADVERTISING INCLUDING OUTDOOR FOR ONLINE GAMBLING PROHIBITED AS OF JULY 1, 2023

ONLINE ADVERTISING MUST TAKE SPECIAL CARE TO AVOID VULNERABLE GROUPS 

 NEW ONLINE GAMBLING CODE EFFECTIVE JULY 1 2023, THE NL VERSION HERE AND UNOFFICIAL TRANSLATION HERE

THESE RULES HAVE NOT YET BEEN APPLIED IN THIS SECTION. SEE THE LINKED CODE

• Any promotional literature around a sponsored event should observe the content and targeting rules set out in our earlier section B
• No sampling shall take place to minors or at gatherings that are mainly or exclusively attended by minors (Art. 9, Section 6, Code of Games of Chance; EN)
• Sponsorship of professional athletes and teams of professional athletes is permitted, but their use in advertising is prohibited (Regulation of 24th June 2013, article 4; NL)
• The Online Gambling Code, linked above, carries a full section 10 on sponsorship, as below: 

​

• Recruitment and advertising activities by games of chance licensees in the form of door-to-door visits are forbidden. This prohibition does not apply to recruitment and advertising activities by licensees under Article 3, first paragraph, of the Act (NL)
• Without prejudice to the second paragraph, personally approaching consumers is allowed unless a consumer has made it known to the licensee or through a designated hotline that such an approach is not wanted
• Both of the above points are from the Decree of 7 May 2013, article 3

• 46. Member States should ensure that sponsorship by operators is transparent and that the operator is clearly identifiable as the sponsoring party
• 47. Sponsorship should not adversely affect or influence minors. Member States are encouraged to ensure that:

(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

• 48. Member States should encourage sponsored parties to verify if the sponsorship is authorised, in accordance with national law, in the Member State where the sponsorship should take effect

• There is considerable activity ‘in the field’ by lotteries in particular. That activity will be subject to the Field Marketing Code (EN), part of the DAC from January 2016. Note the restrictions re minors; full information set out under the General tab below

SECTION C: EVENTS/ SPONSORSHIP

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

• There is no sponsorship code per se in the Netherlands, though some elements of sponsorship activities are covered above
• Sponsorship material should observe the content rules set out in our earlier section B
• Some product categories, such as alcohol, will be restricted to adult audiences by general clauses on the avoidance of minors. See relevant sectors on the Wikiregs home page
• The ICC Sponsorship Code is a solid ‘catch-all' for sponsorship activity nationally and internationally. This is set out in Chapter B of the ICC Advertising and Marketing Communications Code (EN); articles are under the following headers 

 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

.................................................

The European Sponsorship Association (ESA) may also be able to help/ inform

SECTION C: EVENTS/ SPONSORSHIP

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

• Advertising material associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier Content Section B, or from the ICC Code linked below 
• ICC Advertising and Marketing Communications Code (EN): Chapter B Sponsorship

B1: Principles governing sponsorship