The Netherlands

The Dutch Media Act (the “Media Act”)

As of July 1, 2022, influencers on social media will be obliged to comply with the Media Act. The Media Act implements the European Audiovisual Media Services Directive, which came into force on November 1, 2018. Whereas influencers were previously not covered by the scope of the previous Media Act, they are now. Under this Act, influencers are now considered an on-demand commercial media service. For influencers to additionally fall under the supervision of the Dutch Media Authority, the following criteria all need to be met:

• The influencer must be active on YouTube, Instagram and/or TikTok;
• The influencer must have 500,000 or more followers/subscribers on at least one of these platforms;
• The influencer must have posted at least 24 videos with their account with 500,000 or more followers in the past 12 months;
• The influencer earns money, receives products or services or gains others benefits of making and posting videos from their account with 500,000 or more followers;
• The benefit the influencer enjoys of making and posting videos from their account with 500,000 or more followers benefits a company registered with the Dutch Chamber of Commerce.

If these criteria are met, the influencer falls under the supervision of the Media Authority and must report to the media service to the Media Authority (register with the authority, the Dutch self-regulatory body for advertising (Stichting Reclame Code) and report to the Netherlands Institute for the Classification of Audiovisual Media (NICAM)). The Media Act contains rules on recognizable advertising, product placement, sponsorship and protection of minors from harmful content. The Media Authority has recently announced that it will soon revisit the above mentioned criteria.

Dutch Consumer Law -The Unfair Commercial Practices Directive is implemented in the Dutch Civil Code

Advertising that is not recognizable as such constitutes a misleading and therefore unfair commercial practice when it limits the average consumer’s ability to make an informed decision about a product or service. This also applies to all advertising on social media. The Dutch Civil Code contains a list of commercial practices that are considered misleading and therefore prohibited under all circumstances. An example of such misleading and prohibited practice is using editorial content on social media to advertise a certain product or service without mentioning it concerns advertisement.

Dutch Advertising Code and the Advertising Code for Social Media and Influencer Marketing (the “Code”)

The Code applies to all companies in the Netherlands that use social media to promote their product and/or services. The Code was drawn up by the Advertising Code Foundation (SRC). The SRC promotes responsible advertising to ensure the reliability and credibility of advertising. The SRC deals with the self-regulation system of advertising. Both the advertising industry and consumers are represented in the board of SRC and in the Advertising Code Committee and the Board of Appeal. Anyone may submit a complaint to the Advertising Code Committee. This independent body then decides whether an advertisement is in conflict with the Dutch Advertising Code. In case of a violation of the Code, the Committee will recommend the advertiser(s)/company(ies)/influencer(s) involved to discontinue such a way of advertising. The Compliance department will thereupon check whether the advertiser has put the recommendation into effect. The Advertising Code Committee cannot impose fines but publish its rulings (so via naming and shaming) encouraging advertisers to advertise in conformity with the Code.

Misleading and/or fake news

There are parties operating on the internet dealing in fake reviews, fake likes and fake followers. These misleading reviews are used to influence consumers on social media and other online services such as online shops and marketplaces. The Consumer & Market Authority (ACM) considers it very important that consumers receive good information on the basis of which they decide whether to buy a product or service. That is why the ACM takes action against parties offering and using misleading reviews online. In the “Guideline for Online Consumer Protection,” adopted by the ACM earlier this year, the ACM describes where seduction turns into deception. Previously, the ACM has investigated reviews and drafted rules that reviews must comply with. The ACM is also looking at the role and responsibility of platforms in combating misleading reviews.

Sustainability

Sustainability claims are high on the ACM’s agenda, and the ACM actively monitors sustainability claims made by companies, both offline and online. To this end, the ACM published a guide in 2021 that contains rules of thumb and examples to help companies formulate sustainability claims. This guide was updated by the ACM in June 2023. As companies often spread information regarding sustainability via their social media channels, they should carefully verify their claims. The ACM may charge high fines, which could amount to EUR900,000 per offense or could amount up to a percentage of their annual turnover. Currently, a major case is pending against the largest national airline, KLM, regarding its Fly Responsibly sustainability campaign.

Dutch Code for Children’s Rights (“Code voor Kinderrechten”)

The Code for Children’s Right (the “CfCR”) consists of ten principles with practical examples which designers and developers can use to safeguard the fundamental rights of children in digital services. The CfCR helps designers and developers to take account of children’s rights when designing and developing apps, websites, games, smart devices and other digital technology. Although the 10 principles in the CfCR are in themselves not legally enforceable rules, the principles are based on laws and regulations which are legally binding. The principles derive from the fundamental rights of children in the UN Convention on the Rights of the Child 1989 (UNCRC) and the EU’s GDPR. The CfCR is endorsed by the Netherlands Authority for Consumers and Markets. The leading principle throughout the CfCR is to put the child’s best interest first. Designers and developers should, among others, make the best interests of the child the primary consideration when designing, ensure the legitimate processing of the personal data of children and provide transparency in a way that is easily understandable and accessible to children.