Update: On 31 October 2022, the Netherlands Authority for Consumers and Markets (ACM) has published an update to its Guidelines on the protection of the online consumer, also covering the topic of influencer marketing. The Guidelines stipulate that companies bear responsibility for influencer marketing. The inclusion hereof in the Guidelines makes explicit that the ACM, an influential governing authority, will be monitoring influencer marketing, in addition to the supervision by the Dutch Media Authority pursuant to the Dutch Media Act and the Dutch Advertising Code Authority pursuant to the self-regulatory codes on advertising.

What are the new rules?

As of 1 July 2022, professional influencers with a certain reach are subject to the Dutch Media Act and thus fall under the supervision of the Dutch Media Authority. More specifically, the Dutch Media Act will apply to influencers that meet (all of) the following criteria:

• active on YouTube, Instagram or TikTok ("video uploaders");
• 500.000 or more followers/subscribers;
• at least 24 videos in the last 12 months;
• a certain benefit (in cash or in free products/services) is received; and
• registered as a company at the Dutch Chamber of Commerce.

These influencers now qualify – similar to other media services such as television and streaming services like Netflix – as an on-demand commercial media service. This means that the following applies to these influencers:

1. Required registration with the Dutch Media Authority, the Dutch Advertising Code Authority and the Netherlands Institute for Classification of Audiovisual Media ("NICAM"); and
2. Adherence to the rules laid down in the Dutch Media Act.

The following are the main rules:

• Clarity about (the form of) advertising. The Dutch Media Act distinguishes between advertising messages in general, sponsorship, and product placement. It should be clear which form of advertising is involved. Separate requirements apply to each form of advertising, in short:

Advertising messages (in general)
Advertising messages should be recognizable as such, i.e. by explicitly disclosing it as advertising using language such as "this video contains advertising for company X", "paid partnership with company X" or hashtags such as #ad or #advertising.  The use of subliminal advertising techniques is prohibited;

Sponsoring
Sponsoring should be recognizable as such, i.e. by making clear in the description and at the beginning or end of the video that sponsorship is involved, it must be disclosed that sponsoring has taken place and by whom, without the addition of a hidden advertising message to encourage the purchase of products or services. for example by including the sentence "this video is sponsored by company X";

Product placement
Product placement should be recognizable as such. Product placement, as with sponsoring, is only permitted if the public is not encouraged by specific promotions to directly purchase or hire products or services. The product concerned cannot receive undue attention and it should explicitly be disclosed in the description and in the video itself that product placement is involved. Product placement is prohibited in videos consisting of news and current affairs programs, programs on consumer issues, programs of a religious or spiritual nature and programs especially addressed to children under the age of twelve;

• Protect minors from harmful content and follow the rules set by NICAM;
• Identify who you are by providing your contact information and indicate that you are under the supervision of the Dutch Media Authority; and
• Save your videos for at least two weeks from the time your videos can no longer be viewed online.

Do note however that the above does not apply retroactively to content posted before 1 July 2022.

How do the new rules work with existing rules?

It is important to note that the above Dutch Media Act rules under the Dutch Media Authority come on top of the already existing rules and regulations in respect of influencer marketing. The general provisions of unfair commercial practices as laid down in section 3A of the Dutch Civil Code, and the self-regulatory codes established by the Dutch Advertising Code Authority – the general Dutch Advertising Code and the Advertising Code for Social Media & Influencer Marketing ("RSM") – apply to all influencers, regardless of the number of followers.

The consequences of non-compliance vary under each authority as we will outline next.

Who is responsible for compliance?

The RSM prescribes that a company has a duty of care to (i) make influencers they work with aware of the content of the RSM (ii) require them to comply with the relevant laws and regulations, (iii) inform them that third parties they work with must also comply with the RSM and (iii) actively undertake efforts to make influencers comply with the relevant rules and (iv) take action against possible violations.

In effect, companies working with influencers are held responsible for (non-)compliance by these influencers with the RSM if insufficient efforts were made to ensure compliance. In a recent decision, the Dutch Advertising Code Authority (Stichting Reclame Code) ruled that imposing a contractual obligation "to comply with the applicable rules" on an influencer is not sufficient to meet the duty of care. However, the Dutch Advertising Code Authority cannot impose sanctions on advertisers or influencers, but can only make a so-called "recommendation" to the advertiser and/or the influencer.

Although the Dutch Media Act does not contain a similar duty of care for the companies working with influencers, a company risks reputational damage if its brand is associated with a non-compliant influencer. Moreover, the enforcement powers of the Dutch Media Authority are strong and include the possibility to impose fines in cases of non-compliance with these obligations – up to a maximum of € 225.000 per violation. Whilst the Dutch Media Authority has indicated that it will primarily focus on compliance with the Dutch Media Act and will not use the imposition of a fine as first remedy, the inclusion of professional influencers with a certain reach under the Dutch Media Act should be taken as a signal that (bigger) influencers are seen as a legitimate on-demand commercial media service.

As a result of this new development, companies involved with influencers that are active in the Netherlands are wise to take note of the new rules and monitor compliance with the extended set of relevant rules by the influencers they work with.

For further and global guidance on the topic of influencer marketing, we would like to refer you to the interactive tool "Influencer Snapshot" on our Engage platform.  

Authored by Samantha Brinkhuis and Babette Dol