Update of the Dutch Media Act: strengthened monitoring of 'popular' influencers

Watchdog with teeth starts with supervision on influencers, but focuses on education of influencers first.

As if it was not already challenging enough to navigate through the continuously changing maze of rules applicable to influencer marketing, the Dutch media authority (Commissariaat voor de Media) just announced additional rules for 'popular' influencers. In this blogpost, we will bring you up to speed with what’s going on and what this means for advertisers too.

What is new? 

The Dutch Media Act has been amended to keep a closer eye on popular influencers on YouTube, Instagram and TikTok as of the 1st of July 2022. The Advertising Code Social Media & Influencer Marketing will be adapted to the new rules from the same date . The new rules, as described below, derive from the latest review of the Audiovisual Media Services Directive, which was carried out in 2018, and creates a media framework for Europe's digital decade. 

The existing rules, including those incorporated in the Dutch Civil Code, general Dutch Advertising Code and Children & Youth Advertising Code, will still apply (to influencers and advertisers).

What are the new rules?

The purpose of the new rules is to keep partnerships transparent. We note that following the new rules, the Media Act distinguishes between advertisements, sponsorships and product placement:

Advertisements: content intended to convince viewers to purchase a particular product, on which the advertiser has an influence. Example: sharing a discount code or affiliate link.

Sponsorships: the influencer receives compensation or free products to fund the video. The advertiser has no influence on the content. Example: a gifted camera, clothes or free access to a hotel.

Product placement: a product is incorporated into the script of a video, making it part of the storyline. Example: unboxing videos or free entrance to an amusement park where the influencer shows the rides in their video. 

Below we highlight some rules per category:

Advertisements

• Are in any case recognisable as such when the following is clearly visible and/or audible in the beginning of the video, during the promotion or throughout the video and in the description box: 'advertorial', 'paid promotion', #advertisement or #paidpartnership. 
• Intended particularly for children under the age of twelve are clearly recognisable by this audience through their form and content and appropriate to their comprehension.
• Do never promote medical treatments, i.e. treatments you can only get on a doctor's prescription.

Sponsorships

• Must be transparent. Texts such as 'thanks to' or 'in cooperation with' will no longer be sufficient, the same applies to #partner or #collab. Influencers can use 'sponsorship' or #spon instead.
• May not contain any positive qualifications of the product or service, no slogan, no melody that is recognizable and no reference to a website or social media channel. 
• May not contain more than one name, trade mark or other distinctive sign per sponsor.

Product placements

• May not draw too much attention to the product or service. This is the case, for instance, when the influencer mentions where you can buy the product or what the price is. 
• In children's programs is not allowed - paid unboxing videos with children's toys are a no-go.

Who will be affected by the new rules?

Initially, the rules will only apply to influencers that meet all of the criteria below. 

• Active on the platforms YouTube, Instagram or TikTok;
• More than 500,000 followers or subscribers;
• Posted at least 24 videos in the last 12 months, including removed videos. This also includes reels, but whether this includes videos that are temporarily available, such as Instagram stories, has to be clarified;
• Earn money, receive products, services or other benefits from the creation and/or posting of videos via their account; and
• Has a company that is registered with the Dutch Chamber of Commerce.

Influencers that meet these criteria must register with the Dutch Media Authority, as well as with the Advertising Code Foundation and NICAM Kijkwijzer. 

Although the new rules do not directly apply to advertisers, they could still affect them, for example if the advertiser would be linked to non-compliant influencers (e.g. through press coverage, public statements of regulators or otherwise), which could lead to reputational damages. 

We therefore recommend advertisers to keep a close eye on the above criteria when entering into a partnership with a popular influencer – but also during the partnership as the number of followers or subscribers of the influencer may change over time. 

The watchdog's focus: education

The Dutch Media Authority announced that it will initiate the enforcement of the new rules in different phases. At first, the Dutch Media Authority will focus on educating the influencers on the new rules. After that, the Dutch Media Authority will focus its attention on specific types of videos in which products are often advertised, such as unboxing videos for children (which are not allowed in the Netherlands) and videos created by beauty vloggers, which often involve secret advertising. The Dutch Media Authority has announced that, over time, the threshold for the new rules will be lowered so that more influencers (also the less 'popular' ones) will fall under their supervision.

When the new rules would be violated,  the Dutch Media Authority has the power to impose fines up to a maximum of EUR 225,000 to influencers that would  violate the Media Act. 

Osborne Clarke comment

The use of influencers is a popular marketing strategy for many companies to boost their social media presence. Being affiliated with influencers that don't play by the rules, however, may very well lead to serious damage to an advertiser's reputation. That's why it is important for advertisers to stay up to date with the applicable rules and (contractually) ensure that the influencers comply with them too.