SECTION C: TV & RADIO/ AV

• The Royal Decree of 25 October 2018 (EN key clauses), which established the rules for online gambling promotion, has been partially annulled by the Belgian State Council in decisions of February 2020. The consequence is the removal of restrictions on holders of A+ and B+ licenses (broadly, online gambling) so that they are under the same conditions as F1+ license holders (broadly, online betting). Section A carries the details 

• Reportedly, there is some political pressure to introduce a total ban on Gambling advertising; the situation is at least uncertain. Best to check with the Gambling Commission, or with the Self-Regulatory Organisation JEP, before making medium-term commitment to Gambling advertising in Belgium

• 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 is the Royal Decree of 25 October 2018 (EN key clauses, unamended) and for General rules in Belgium the ICC Advertising and Marketing Communications Code
• 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 (the prohibition on Gambling marcoms in media aimed at young people extended to sponsorship and product placement; though the Royal Decree's provisions related to appeal to minors were annulled, self-regulatory and media regimes will apply and it's clearly the case that minors should be continue to be avoided, both in terms of targeting and appeal)
• Class A+ or B+ licence holders may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree)
• In the case of the games of chance that are operated via information society tools by a class A +, B + and F1 + license holder Defined as A+ licence for online casinos B+ licence for online gaming arcades F1+ licence for online bets no advertising may be broadcast:

• During live coverage of sporting competitions, i.e. during the period running from the effective start of the sporting competition in question being broadcast live until the effective end of this sporting competition, regardless of what media is employed to broadcast the live coverage;
• During the fifteen-minute period preceding the start and the fifteen-minute period following the end of programmes specifically aimed at children and minors
• In the case of class A +, B + and F1 + license holders, no advertising for online sporting bets shall be broadcast before 8 pm, unless sporting programmes are being broadcast
• The number of advertisements for operators of online sporting bets shall be restricted to one per advertising break

• Only advertisements containing messages relating to responsible gambling shall be broadcast

SECTION C: TV & RADIO/ AV

• The European media landscape is undergoing significant change and its regulation is changing with it; the Audiovisual Media Service Directive (AVMSD) 2010/13/EU in its original form regulated European broadcast media, as that’s where ‘audiovisual’ media was; as media has digitised, so has the scope of the AVMSD, with the latest amendments coming from Directive 2018/1808, extending AVMS scope online and into video-sharing platform services (VSPS) in particular
• For the purposes of this section – TV/Radio/VOD – not a great deal has changed as a result of the directive’s amends to the channel issues that the section covers, i.e. those for product placement, sponsorship etc. Amends are largely to do with scope and with new rules for VSPS, shown under our later Online Commercial Communications header
• The 2018/1808 amends are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). The content rules from the decree are shown in our earlier content section B and, as above, do not change significantly, albeit more generally there are new pressures on self-regulatory systems. Key changes to content rules in the directive are shown here; see articles 4a and 9 for references to self-regulation in food and in alcohol
• Belgium’s AV regulatory set-up is relatively complex; media is a cultural matter and therefore under the supervision of authorities in individual French, Dutch or German-speaking regions. The media authorities in each region have a record of transposing directives somewhat differently. In this case, the 2021 Decree linked above ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch- or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish, French and German-speaking communities.’ (from a helpful blog on the subject from lawyers Baker McKenzie)
• We are getting confirmation of where the federal and regional rules ‘meet’ and which jurisdictions prevail; seek specialist advice if uncertain (and the authorities are below), albeit observing the directive’s rules should keep you in good stead and they are anyway to a large extent ‘covered’ by self-regulatory measures, especially in matters of misleadingness, not addressed in AVMSD rules

Note: we no longer check and translate the individual community decrees/ rules/ decisions

Per above, there are four authorities in Belgium:

1. Conseil Supérieur de l’Audiovisuel de la Fédération Wallonie-Bruxelles for the French-speaking community
2. Vlaamse Regulator voor de Media (VRM) for the Flemish-speaking community and
3. http://www.medienrat.be/ for the German speaking community
4. Belgian Institute for Postal Services and Telecommunications – BIPT – for the bilingual Brussels-Capital Region. Background In Belgium, the Communities are competent for the technical aspects and the contents of the audiovisual media services. However, in the bilingual Brussels-Capital Region, some activities of the media sector cannot be exclusively linked to one of the two Communities, Flemish and French; in that case, the Federal State is competent for these activities. In this context, BIPT, as a federal institution, acts as the regulator in the sector of audiovisual media services on the territory of the bilingual Brussels-Capital Region and from the link

Their rules are from:

• Décret coordonne sur les services de médias audiovisuels (FR; CSA August 2018) applicable to the French-speaking community in Belgium
• Fifth management contract RTBF 2019-2022 FR, applicable to RTBF, the public broadcasting service of Belgium's French-speaking community; the latest contract includes requirements for 'health messages' in commercial communications for'HFSS' foods; see our Food sector on the home page or Section E links of this database  
• Flemish Media Decree of 27 March 2009 as amended April 2021 on radio and television broadcasting applicable to the Flemish region NL / EN (non official translation of the Act from VRM updated 04.03.2021; does not include April 2021 amends)
• Applicable to the German-speaking community, the Decree on media services and cinema screenings March 1, 2021 (Media Decree 2021 DE). Transposes the amends from the AVMS Directive 2018/1808. Art. 32 under Chapter 4 for new rules for video-sharing platforms. Art. 12 for the ‘standard’ rules re identification, the environment etc., art. 17 for the protection of minors and arts. 19 and 20 for product placement and sponsorship
• Act of 5 May 2017 regarding audiovisual media services in the bilingual Brussels-Capital Region FR-NL (EN translation of relevant provisions); the act is a direct transposition of the AVMS Directive
• The above is the latest region-specific act; it is our understanding that the applicable rules will now be from the Decree of 4 February 2021 (FR) referenced above
• Some of the authorities publish separate advice notes on various subjects; the CSA (French-speaking authority) for example publish product placement and sponsorship rules 
• The content rules specifically for TV/ Radio and VOD in Belgium reflect in broad terms the requirements of article 9 of the AVMS Directive 2010/13/EU, though some communities have interpreted these more aggressively, especially with regard to children; the rules in the German/ Flemish/ French communities are shown together in a table here albeit these do not reflect the latest (minor) amends to content of commercial communications in the AVMS Directive from Directive 2018/1808, as shown in the Decree of 4th February linked above

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

​

• The Royal Decree of 25 October 2018 (EN key clauses), which established the rules for online gambling promotion, has been partially annulled by the Belgian State Council in decisions of February 2020. The consequence is the removal of restrictions on holders of A+ and B+ licenses (broadly, online gambling) so that they are under the same conditions as F1+ license holders (broadly, online betting). Section A carries the details 

• Reportedly, there is some political pressure to introduce a total ban on Gambling advertising; the situation is at least uncertain. Best to check with the Gambling Commission, or with the Self-Regulatory Organisation JEP, before making medium-term commitment to Gambling advertising in Belgium

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

• 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 is the Royal Decree of 25 October 2018 (EN key clauses; unamended ) and for General rules in Belgium the ICC Advertising and Marketing Communications Code
• Class A+ or B+ licence holders may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree)
• Advertising for bets operated via Information Society tools by Class F1+ license holders may not:

1. Encourage minors to gamble or suggest that minors can gamble, or target minors or represent people in their advertisements who are, or appear to be, minors placing bets
2. Encourage minors to persuade their parents or others to participate in the bets to which this advertising relates
3. Be broadcast via advertising platforms or media known for being mainly targeted at minors
4. Be shown in a cinema during the showing of a film mainly intended for an audience of minors
5. Be run in places predominantly populated by minors, or in health establishments

(Art. 3, § 2 Oct2018 Decree)

• Member States should encourage that commercial communications are not broadcast, displayed or facilitated In close proximity of places where minors normally spend time and are expected to be the main audience including at least schools (Section IV, art. 13 EC Recommendation 2014/478/EU)

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

SECTION C: CINEMA, PRINT, OUTDOOR

The content rules set out in our earlier Section B are applicable to all of the channels in this section, except those rules that are specific to broadcast and to online

CINEMA

• There are no general channel rules that are specific to cinema according to our research. There are targeting restrictions in some product categories such as alcohol, and food and soft drinks. See those categories for details. If the advertising content may be judged to be in some way inappropriate for children, check with JEP or the contractor for a view on potential restrictions
• Brightfish Belgium is the SAWA (Screen Advertising World Association) representative in Belgium. Contact them directly for any further information on cinema advertising in Belgium: http://www.brightfish.be/

PRINT

• There are no self-regulatory channel rules that are specific to print. As with cinema, some targeting restrictions will apply in more sensitive sectors
• General content rules will apply, in particular in this context (because of the prevalence and growth of ‘native’ advertising in print) Article 7 of the ICC Code (EN) Identification of advertising, a key principle running through the Journalistic Codes 
• JEP’s 2019 Native Advertising Code (EN) applies when deploying the native technique. The key rule is: where the commercial purpose of the communication is not immediately and clearly apparent from the content and / or context, an explicit identifier must be used. Full information and guidelines in the linked code

OUTDOOR

• Advertising/ marcoms content is subject to the rules set out in our earlier section B, except for those rules that are specific to broadcast and online

The international association for OOH advertising is the World Out Of Home Organisation WOO; membership list here

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 Royal Decree of 25 October 2018 (EN key clauses), which established the rules for online gambling promotion, has been partially annulled by the Belgian State Council in decisions of February 2020. The consequence is the removal of restrictions on holders of A+ and B+ licenses (broadly, online gambling) so that they are under the same conditions as F1+ license holders (broadly, online betting). Section A carries the details 

• Reportedly, there is some political pressure to introduce a total ban on Gambling advertising; the situation is at least uncertain. Best to check with the Gambling Commission, or with the Self-Regulatory Organisation JEP, before making medium-term commitment to Gambling advertising in Belgium

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.

• This section provides the broad regulatory picture for Gambling marcoms in the commercial digital environment in Belgium. More specific channel (i.e. placement) rules such as email, OBA etc. follow
• We do not address, obviously, the regulations around operational aspects of Gambling operator websites; these will be subject to specialist advisor scrutiny anyway. Our scope is ‘only’ those elements of operator websites that constitute ‘advertising.’
• It is not entirely clear in legislation whether ‘websites’ or ‘Information Society instruments/ tools’ include e.g. Operator-owned social media pages. It would probably be appropriate to assume that such pages would be subject to the same rules as ‘regular’ websites, though specialist advice might be sought, as this is particularly sensitive territory
• 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 definition in Belgian law is ‘any communication for the direct or indirect purpose of promoting the sale of products, irrespective of the place or the means of communication used’.

• In this channel context, the influence of legislation is significant, particularly in the use of personal data. The impact of GDPR is shown under individual channels; in broad, when processing personal data related to e.g. databases for marketing purposes, lawful processing rules from the GDPR may be applicable

• The law relating to consent and information in (direct) electronic communications, in the form of national transposal of E-commerce and E-privacy directives, is set out below in full under the General tab or referenced under later headers. Requirements for commercial communications that constitute an ‘invitation to purchase’ may also apply.  ‘Snapshot’ immediately below

1. For the processing of personal data (that which can identify an individual), GDPR applied directly in member states from 25 May 2018. Nationally, The Law of 30 July 2018 (FR), the ‘Framework Act’, on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data

2. (Direct) electronic marketing communications are regulated by Book XII of the Code of Economic Law together with the Royal Decree of 4th April 2003 regulating the sending of electronic commercial communications; Articles 1 and 2 and commentary FR-NL / EN, both part-implementing the E-Privacy Directive 2002/58/EC which prohibits unsolicited commercial communications

3. In the context of E-commerce, rules for commercial communications are transposed from the E-Commerce Directive 2000/31/EC into Book XII of the Code of Economic Law, articles 12 and 13 FR-NL / EN extracts

4. If a marketing communication constitutes an ‘Invitation to Purchase’, Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’ (Art. 99) FR - NL / EN key provisions

5. Amends to the AVMS Directive 2010/13/EU by Directive 2018/1808 extended scope online and in particular to video-sharing platform services (VSPS), which are required to identify to users when commercial communications are within uploaded videos, when VSPS are aware of those. Amends are transposed in Belgium by the Decree of 4th February 2021 (FR). Details below under the General tab as the rules apply to all sectors, Gambling included

Privacy issues should be reviewed with specialist advisors

• Where communications on a website constitute advertising, 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 is the Royal Decree of 25 October 2018 (EN key clauses, unamended) and for General rules in Belgium the ICC Advertising and Marketing Communications Code
• Class A+ or B+ licence holders may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree; our earlier note on this article essentially assumes that this means direct electronic communications such as email; seek specialist advice if uncertain)
• In the case of the games of chance that are operated via information society tools by a class A+, B+ and F1+ license holder Definitions A+ licence for online casinos B+ licence for online gaming arcades F1+ licence for online bets no advertising may be broadcast Comment the original French is ‘diffusé’; implication is beyond conventional ‘broadcast:

• During live coverage of sporting competitions, i.e. during the period running from the effective start of the sporting competition in question being broadcast live until the effective end of this sporting competition, regardless of what media is employed to broadcast the live coverage
• During the fifteen-minute period preceding the start and the fifteen-minute period following the end of programmes specifically aimed at children and minors
• In the case of class A+, B+ and F1+ license holders, no advertising for online sporting bets shall be broadcast before 8pm, unless sporting programmes are being broadcast
• The number of advertisements for operators of online sporting bets shall be restricted to one per advertising break

(Art. 3.2 Oct 2018 Decree)

• Advertising for bets operated via Information Society tools by Class F1+ license holders may not: 1. Encourage minors to gamble or suggest that minors can gamble, or target minors or represent people in their advertisements who are, or appear to be, minors placing bets; 3. Be broadcast via advertising platforms or media known for being mainly targeted at minors (Art. 3, § 2. Oct 2018 Decree)
• Advertising for the games of chance and bets operated by a class A+, B+ or F1+ license holders via information society tools may not divulge the identity, address and other data pertaining to players and their families, including their photograph or other visual recording
• Only advertisements containing messages relating to responsible gambling shall be broadcast

https://www.jep.be/sites/default/files/rule_reccommendation/recommandations_du_conseil_de_la_publicite_influenceurs_en_ligne_fr.pdf (FR - brochure)

http://www.g-regs.com/downloads/BEGenInfluencerRecos.pdf (EN unofficial translation of text)

The document linked above, published October 2018 by the Advertising Council, sets out the rules/ guidance on the issue of Online Influencer Marketing: when commercial communications qualify as such and what kinds of identification are required. Rules are applicable to all sectors, Gambling included, and are therefore set out in full under the General tab below

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

CONTEXT

This section provides the 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 definition in Belgian law is ‘any communication for the direct or indirect purpose of promoting the sale of products, irrespective of the place or the means of communication used’. 

SELF-REGULATION

• Chapter C of the ICC Code (EN): Direct Marketing and Digital Marketing Communications 
• ICC Guide for Responsible Mobile Marketing Communications
• 2022 JEP Influencer Marketing Guidelines (EN)
• JEP’s 2019 Native Advertising Code (EN) applies when using the native technique. The key rule is: Where the commercial purpose of the communication is not immediately and clearly apparent from the content and/ or context, an explicit identifier must be used. Full information and guidelines in the linked code
• Commercial communications online, as defined under ‘Context’ above, are subject to the content rules set out in our earlier section B. Principal self-regulatory sources are the ICC Code (EN) deployed in Belgium as the ‘General’ code
• Note that while self-regulation is the principal force especially in the content of commercial communications, in this channel context the influence of legislation is significant for its consent and information requirements; see the legislation header later in this section

Communication Centre Recommendation for Influencers (EN)

The document linked above, published April 2022 by the Communication Centre/ JEP and an update on the 2018 Online Influencer Guidelines, sets out the rules/ guidance on Influencer Marketing: when commercial communications qualify as such, what kinds of identification are required and how to apply them

The Flemish Media Regulator published in December 2021 the Content Creator Protocol (NL) which sets out new rules for vloggers/ influencers. Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media

LEGISLATION

• The 2018/1808 Directive amends to the AVMS Directive extend scope online and in particular introduce new rules to Video-sharing platform services (VSPS). Provisions are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). Key changes to content rules in the directive are shown here and the decree’s content rules are set out under our content section B, point 2.3
• VSPS provisions for this context are under Book V, Title V of the decree and require that its commercial communication content rules are observed and that inter alia VSPS must make make available to those users posting a video a ‘transparent and user-friendly’ system for declaring whether the content contains commercial communication and that users of the service must also be informed of commercial communication content, when the service is aware of such content
• Book XII of the Code of Economic Law: ‘Law of the electronic economy’ FR-NL / EN (extracts). Implements the e-Commerce Directive 2000/31/EC, requiring that supplier and promotional information is made easily available to consumers. See below for provisions 
• Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’ (Art. 99 sect. 5 inter alia; Book VI applies in large part) FR - NL / EN key provisions. The law transposes the UCPD and the MACAD. It applies across all channels and is here for the record
• The General Data Protection Regulation, if processing personal data; privacy issues should be reviewed with specialist advisors 
• The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; due in force 1 January 2024

• Q&A: online advertising in Belgium. Agio Legal/Lex. September 29, 2023

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

Privacy issues should be reviewed with specialist advisors

COOKIES

• While there no rules particular to the Gambling sector’s use of Cookies, any form of targeting of minors is prohibited
• The general cookie rules, i.e. those that apply to all sectors Gambling included, are shown below under the General tab

OBA

• Class A+ or B+ licence holders may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree). Note: it is not clear whether OBA would qualify as ‘personalised’ advertising, for which we have been unable to trace a definition. It seems unlikely.
• Advertising for bets operated via Information Society tools by Class F1+ license holders (Online bets, as defined here) may not: 1. Encourage minors to gamble or suggest that minors can gamble, or target minors or represent people in their advertisements who are, or appear to be, minors placing bets; 3. Be broadcast via advertising platforms or media known for being mainly targeted at minors (Art. 3, § 2. Oct 2018 Decree)
• Only advertisements containing messages relating to responsible gambling shall be broadcast (from Art. 3, Oct 2018 Decree)
• OBA, like any other advertising, is subject to the Content rules set out in our earlier Section B. Principal source of rules for Gambling marcoms is the Royal Decree of 25 October 2018 (EN key clauses, unamended) and for General rules in Belgium the ICC Advertising and Marketing Communications Code
• General Channel (placement) rules, i.e. those that apply to all sectors Gambling included, are shown below under the General tab, together with the Self-Regulatory programme from the EDAA
• The processing of personal data in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors
• 43. Commercial communications should not target vulnerable players in particular by making use of unsolicited commercial communications addressed to players who have self-excluded from gambling or have been excluded from receiving online gambling services on reasons of problem gambling (Commission Recommendation 2014/478/EU)
• Moderation and age messaging applies to all advertising (see Section B)

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SECTION C: COOKIES AND OBA

Legislation, authority and guidance

Privacy issues should be reviewed with specialist advisors

• The Law of 3rd Dec 2017 (FR) replaced the Privacy Commission with the Data Protection Authority (DPA/APD, Autorité de protection des données). The Law of 30 July 2018 (FR) on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data
• The Electronic Communications Act 13th June 2005 ‘ECA’ Article 129 FR / NL transposed the requirements of Article 5.3 of the e-Privacy Directive 2002/58/EC, as amended by article 2 (5) of the 'Cookie' Directive 2009/136/EC; following amends from the December 2021 law (FR) that established the European Electronic Communications Code, cookie provisions are now under article 10/2 of the 2018 law linked above, known as the Belgian Data Protection Act
• The key EU guidance in this context, generally followed by the DPA, is Guidelines on Consent under Regulation 2016/679 (May 2020)
• The latest and most relevant national recommendation from the DPA is Recommendation 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes (FR). This is consistent with GDPR and EDPB; their cookie guidance is here (FR)
• IAB Europe published in May 2020 their Guide to the Post Third-Party Cookie Era  and in July 2021 Guide to Contextual Advertising
• This January 2022 article Another cookie enforcement case from CMS Belgium via Lexology is a valuable re-cap of the reality of cookie legislation and enforcement in Belgium, with some reference to the rather dusty proposals for new e-Privacy regulations from the EU, not expected to come into force until 2023 or even later
• Google says the cookie is here to stay until 2024, July 27, 2022. Google has also published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here
• RE above, see Privacy Sandbox next steps. May 18, 2023

Key provisions 

​

• Under article 10/2 of the Belgian Data Protection Act linked above, cookies may only be stored or accessed on an individual’s terminal equipment provided the individuals have consented after having received 'clear and precise information regarding the purposes of the processing' and their rights with regard to processing of their data, i.e. informed consent
• Cookies are exempted from the requirement of informed consent where the cookie is used for the sole purpose of sending a communication over an electronic communications network, or the cookie is 'strictly necessary' for the provision of a service explicitly requested by the user

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)

• The Royal Decree of 25 October 2018 (EN key clauses), which established the rules for online gambling promotion, has been partially annulled by the Belgian State Council in decisions of February 2020. The consequence is the removal of restrictions on holders of A+ and B+ licenses (broadly, online gambling) so that they are under the same conditions as F1+ license holders (broadly, online betting). Section A carries the details 

• Reportedly, there is some political pressure to introduce a total ban on Gambling advertising; the situation is at least uncertain. Best to check with the Gambling Commission, or with the Self-Regulatory Organisation JEP, before making medium-term commitment to Gambling advertising in Belgium

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

E-MAIL (includes SMS/ MMS)

• Class A+ or B+ licence holders may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree). Note: we have been unable to trace a definition of ‘personalised advertising.’ It seems likely to mean this channel. Seek specialist advice if uncertain
• 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 is the Royal Decree of 25 October 2018 (EN key clauses, unamended) and for General rules in Belgium the ICC Advertising and Marketing Communications Code
• The general channel (placement) rules also apply; these include statutory consent and information requirements for unsolicited commercial communications. The regime in Belgium reflects the applicable Directives 2002/58/EC in being opt-in / soft opt-in and E-Commerce rules from 2000/31/EC. Specifics under the General tab below
• Gambling marcoms may not target minors (Codes and laws various); in the case of Class A+ or B+ licence holders, who may be permitted to advertise in this channel/ medium, the age restriction is 21+
• Class A+ or B+ licence holders must be sure not to send any personalised advertising to persons forbidden or refused access to games of chance pursuant to Article 54 of the Act of 7 May 1999 on gambling, betting, gambling establishments and the protection of gamblers (Art. 1, Oct 2018 Decree)
• Art.2 RD, §2. Advertising for the games of chance or bets operated by class A +, B + or F1 + license holders via Information Society tools must include indication of the minimum required age for participation in these games of chance or bets
• Each advertisement for the games of chance or bets operated via Information Society tools shall include the following message “Jouez avec modération!" (Play in moderation!"), regardless of the medium used. The size of the letters of a written message referenced in the preceding paragraph must correspond to at least 4% of the size of the advertising space and have a point size of at least 7, but without being less than a quarter of the size of the largest characters used in the advertising

Legislation applicable to all sectors (in detail below under the General tab)

• The processing of personal data in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors
• (Direct) electronic marketing communications are regulated by Book XII of the Code of Economic Law together with the Royal Decree of 4th April 2003 regulating the sending of electronic commercial communications; Articles 1 and 2 and commentary FR-NL / EN, both part-implementing the E-Privacy Directive 2002/58/EC which prohibits unsolicited commercial communications
• In the context of E-commerce, rules for commercial communications are transposed from the E-Commerce Directive 2000/31/EC into Book XII of the Code of Economic Law, articles 12 and 13 FR-NL / EN extracts
• If a marketing communication constitutes an ‘Invitation to Purchase’, Book VI of the Code of Economic Law (Art. 99) applies FR - NL / EN key provisions

From the EU Recommendation (not binding, but significant)

• 43. Commercial communications should not target vulnerable players in particular by making use of unsolicited commercial communications addressed to players who have self-excluded from gambling or have been excluded from receiving online gambling services on reasons of problem gambling (Commission Recommendation 2014/478/EU)

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SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

The content rules set out in our earlier section B apply, except those rules that are exclusive to broadcast channels, together with any sector-specific rules 

• The General Data Protection Regulation, if processing personal data
• Book XII of the Economic Law Code (ELC): ‘Law of the Electronic Economy’ EN extracts, FR. Provides e-Commerce rules transposed from Directive 2000/31/EC
• Royal Decree of 4th April 2003 regulating the sending of electronic commercial communications; articles 1 and 2 and commentary EN
• Book VI of the Economic Law Code: ‘Market Practices and Consumer Protection’ extracts EN also art. 103 (3) re harassment

Guidance and commentary

• Marketing E-Mails Without Consent (Opt-In) To Former Customers. March 2023 from Timelex. Sets out the law, related conditions and a case 
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
• FPS Economy (Federal Public Service) Guidance: Spamming FAQ (FR, November 2019)
• From the national DPA: Recommendation 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes here (FR). Consent para 175

Self-regulation

• Chapter C ICC Advertising and Marketing Communications Code (EN): Direct Marketing and Digital Marketing Communications; chapter extracted here; key articles C1, 2 & 8

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

• The Royal Decree of 25 October 2018 (EN key clauses), which established the rules for online gambling promotion, has been partially annulled by the Belgian State Council in decisions of February 2020. The consequence is the removal of restrictions on holders of A+ and B+ licenses (broadly, online gambling) so that they are under the same conditions as F1+ license holders (broadly, online betting). Section A carries the details 

• Reportedly, there is some political pressure to introduce a total ban on Gambling advertising; the situation is at least uncertain. Best to check with the Gambling Commission, or with the Self-Regulatory Organisation JEP, before making medium-term commitment to Gambling advertising in Belgium

• We do not address the regulations around operational aspects of Gambling operator websites; these will be subject to specialist advisor scrutiny anyway. Our scope is ‘only’ those elements of operator websites that constitute ‘advertising.’
• It is not entirely clear in legislation whether ‘websites’ or ‘Information Society instruments/ tools’ referenced in the Oct2018 Decree (EN key clauses, unamended) include e.g. Operator-owned social media pages. It would probably be appropriate to assume that such pages would be subject to the same rules as ‘regular’ websites, though specialist advice might be sought, as this is particularly sensitive territory
• 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 definition in Belgian law is ‘any communication for the direct or indirect purpose of promoting the sale of products, irrespective of the place or the means of communication used’.

• Class A+ or B+ licence holders may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree). Note: we have been unable to trace a definition of ‘personalised advertising.’ It seems likely to mean direct electronic communications. Seek specialist advice if uncertain
• Advertising for the games of chance and bets operated by class A +, B + or F1 + license holders via information society tools may not: 1. Offer game credits or bonuses of any kind, except on their own website; 2. Incite people to play by promising a new contribution or the reimbursement of the bet in the event of a loss (Art. 5, Oct2018 Decree) Decisions of the Belgian State Council referenced above removed the provisions that allowed bonuses in online gambling/ betting marketing as these are permitted in (separate) law only to bricks and mortar establishments 
• The Content rules set out in Section B apply to marketing communications in this channel – both the Gambling-specific and the General rules, i.e. those that apply to all sectors. Principal source of rules for Gambling marcoms is the Royal Decree of 25 October 2018 (EN key clauses unamended) and for General rules in Belgium the ICC Advertising and Marketing Communications Code, details of which are under the General tab in Content Section B
• The general channel (placement) rules also apply; these include statutory consent and information requirements for unsolicited commercial communications. The regime in France reflects the applicable Directives 2002/58/EC in being opt-in / soft opt-in and E-Commerce rules from 2000/31/EC. Specifics under the General tab below
• If a marketing communication constitutes an ‘Invitation to Purchase’, Book VI of the Code of Economic Law (Art. 99) applies FR - NL / EN key provisions
• Amends to the AVMS Directive from Directive 2018/1808 extended AVMS scope online and into video-sharing platforms (VSPS) in particular. Amends were transposed in Belgium by the Decree of 4th February 2021 (FR). It is now required of VSPS that their end-users are advised of the existence of commercial communications in uploaded videos where these are known of. Details below under the General tab or see the linked files 

From Commission Recommendation 2014/478/EU  (not binding, but significant)

• 4. The following information should be displayed prominently on the landing page of the operator's gambling website and be accessible from all pages on the website:

(a) The company details, or other means that ensures the operator is identifiable and can be contacted, including: (i) company name; (ii) place of registration; (iii) e-mail address

(b) A ‘no underage gambling’ sign, which shows the minimum age below which gambling is not permissible

(c) A ‘responsible gambling’ message, which no more than one click away provides: (i) information that gambling can be harmful if not controlled; (ii) information about the player support measures on the website; (iii) self-assessment tests for the players to check their gambling behaviour

(d) A link to at least one organisation providing information and assistance in respect of gambling disorders

• The terms and conditions of the contractual relationship between the operator and the consumer should be provided in a concise and legible manner. They should:

(a) Contain information at least about timeframes and limits regarding withdrawals from the player account, any charges concerning the player account transactions and a link to the applicable payout percentages for every game

(b) Be accepted and confirmed by the consumer during the registration process referred to in Section V

(c) Be made available by electronic means in a way that allows the consumer to store and retrieve them, and any changes communicated to the consumer

• 6. Member States should ensure that information is available to the consumer about the rules concerning the games and bets available on the operator's gambling website
• 7. Member States should ensure that the operator's gambling website displays the details of the gambling regulatory authority to show that the operator is authorised

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. The ICC Code definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA DMC Best Practice linked below. 

• Content rules from section B apply to advertising (as defined) on or from owned websites, except those rules specific to broadcast. The principal source of rules is the ICC Advertising and Marketing Communications Code (EN), administered in Belgium by JEP

APPLICABLE LEGISLATION AND GUIDANCE
(and some self-reg guidance)

• The 2018/1808 Directive amends to the AVMS Directive extend scope online and in particular introduce new rules to video-sharing platform services (VSPS). Provisions are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). Key changes to content rules in the Directive are shown here and the Decree’s content rules are set out under our content section B, point 2.3.
• The Flemish media regulator considers that the above decree brings AV content from vloggers and influencers into scope and published in December 2021 the Content Creator Protocol (NL). Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media
• VSPS provisions for this context are under Book V, Title V of the decree and require that its commercial communication content rules are observed and that inter alia VSPS must make make available to users posting a video a ‘transparent and user-friendly’ system for declaring whether the content contains commercial communication and that users of the service must also be informed of commercial communication content, when the service is aware of such content
• If  processing personal data, then lawful processing rules from the GDPR apply. Privacy issues should be reviewed with specialist advisors 
• European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here
• The national DPA Recommendation No. 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes. Consent from Para 175. The Recommendation is GDPR and EDPB consistent
• Book XII of the Code of Economic Law; Articles 6, 12 EN; this section of the ELC transposes the E-Commerce Directive 200/31/EC and part of the E-Privacy Directive 2002/58/EC; provisions set out below 
• Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’ extracts EN; transposes UCPD 2005/29/EC. On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). 
• JEP's 2018 Influencer marketing guidelines; Section 4 - application of the rules - set out below 
• EASA best practice recommendation on influencer marketing 2023 and DMC Best Practice 2023 - the latter some help on exemptions to remit pps.11/12

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

• The Royal Decree of 25 October 2018 (EN key clauses), which established the rules for online gambling promotion, has been partially annulled by the Belgian State Council in decisions of February 2020. The consequence is the removal of restrictions on holders of A+ and B+ licenses (broadly, online gambling) so that they are under the same conditions as F1+ license holders (broadly, online betting). Section A carries the details 

• Reportedly, there is some political pressure to introduce a total ban on Gambling advertising; the situation is at least uncertain. Best to check with the Gambling Commission, or with the Self-Regulatory Organisation JEP, before making medium-term commitment to Gambling advertising in Belgium

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

• Class A+ or B+ licence holders (A+ licence for online casinos. B+ licence for online gaming arcades) may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree)
• Holders of a supplementary class F1+ licence (Online bets, as defined here) may under no circumstances advertise themselves or the games of chance or betting products that they offer on the players’ equipment or sporting equipment of under-age sports teams (Art. 10 of the Royal Decree; also applies to holders of a class A + and B + licenses)
• The ‘Native’ form of advertising is like any other advertising – it’s subject to the Content rules, in this context the Royal Decree of 25 October 2018 (EN key clauses, unamended) and for General rules in Belgium the ICC Advertising and Marketing Communications Code; our earlier Content Section B for details
• Advertising for bets operated via Information Society tools by Class F1 + license holders may not: Be broadcast via advertising platforms or media known for being mainly targeted at minors (Art. 3, S2.3, Oct 2018 Decree)

Legislation (all sectors; see also General tab below)

• Book VI of the Code of Economic Law (Art. 100, the ‘blacklist’) FR - NL / EN key provisions. Point 11; prohibited is: ‘using editorial content in the media to promote a product where a business has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer.’ More under the General tab below

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

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 identification. If it’s advertising, defined in the ICC Code as ‘’any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’, then like any other advertising, it’s subject to the rules set out in our content section B, except those rules applying to broadcast

SELF-REGULATION

• ICC Advertising and Marketing Communications Code (EN), General Provisions (Arts. 7,8, 18)
• 2019 Native Advertising Code Note: the Native Code uses the ICC Code as a foundation for the individual recommendations. The latter code changed in September 2018. Some of the references in the native document are no longer accurate, though the thrust of the ICC articles is similar

A1) Context and use of Identifiers

• The commercial nature of native advertising and related communications must, in accordance with article 7 of the ICC Code, be instantly and clearly identified by the target group. The question of whether this requirement is satisfied will have to be examined on a case-by-case basis, taking into account the specific circumstances, since the general impression given by the communication in question is key. In some cases, it already appears immediately from the content and / or from the context of the native advertising that it is a commercial communication. The criteria that can be considered in this regard include the following:

​

1. (Audio) visual characteristics of the communication contributing to clear identification of its commercial nature. Example: A commercial communication on a web page of a medium uses the (audio) visual characteristics of the featured brand or clearly departs from the medium's usual layout
2. Characteristics of the content of the communication contributing to clear identification of its commercial nature Example: A commercial communication with an obvious call to action. Where the commercial purpose of the communication is not immediately and clearly apparent from the content and / or context, an explicit identifier must be used.

A2) Use of identifiers

• There are different identifiers that help instantly to identify the commercial nature of a communication.
• The terms that can be used as an identifier are, for example:

« Annonce »

« Publicité »

« Publireportage »

« Advertorial »

« Promotion »

« Proposé par (…)»

« Réalisé en étroite collaboration avec (…) »

« Powered by (…) »

• This list is not exhaustive and the clarity of each identifier must be assessed on a case-by-case basis in combination with other factors likely to make a commercial communication identifiable. In particular, the following criteria may be taken into account:

1. Use of the logo or the (audio) visual features of the brand. To allow a clear identification of commercial content, an identifier may be combined with the advertiser's logo and other characteristics of the brand
2. The language of the identifier. An identifier in the target audience's language facilitates identification
3. The positioning of the identifier. The identifier is preferably positioned where it is sufficiently visible such that the consumer can immediately identify that it is commercial content
4. The (audio) visual characteristics of the identifier. The identifier must be sufficiently visible (if applicable, audible). A contrasting colour and sufficient size is recommended, taking into account the characteristics of the medium in which the content appears
5. The duration of appearance of the identifier. The consumer must have enough time to absorb the identifier and recognise that this is commercial content
6. The communication's target market. Particular attention should be paid to the comprehensibility of the identifier used when the target group is children or young people
7. The accompanying text. An identifier can also be accompanied by brief text (for example via use of a "mouseover") in order to clarify the nature of the advertising and to explain that there is a commercial relationship between the medium and the advertiser

A3) Reference to native advertising

• Not just the native ad content itself, but additionally the references to that content must also be identifiable as commercial communication. That can take the form of, for example, summaries of the content appearing on other pages of the website. The consumer must be clearly informed that this is commercial content before clicking on the advertising

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 

• The Royal Decree of 25 October 2018 (EN key clauses), which established the rules for online gambling promotion, has been partially annulled by the Belgian State Council in decisions of February 2020. The consequence is the removal of restrictions on holders of A+ and B+ licenses (broadly, online gambling) so that they are under the same conditions as F1+ license holders (broadly, online betting). Section A carries the details
• Reportedly, there is some political pressure to introduce a total ban on Gambling advertising; the situation is at least uncertain. Best to check with the Gambling Commission, or with the Self-Regulatory Organisation JEP, before making medium-term commitment to Gambling advertising in Belgium

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• Class A+ or B+ licence holders (A+ licence for online casinos. B+ licence for online gaming arcades) may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree). Note: we have been unable to trace a definition of ‘personalised advertising’. It might be reasonable to assume that the description might include personalised direct postal mail. Check with specialist advisors if uncertain
• Advertising for bets operated via Information Society tools by Class F1 + license holders may not: Be broadcast via advertising platforms or media known for being mainly targeted at minors (Art. 3, S2.3, Oct 2018 Decree)
• The Content rules set out in Section B apply to marketing communications in this channel – both the Gambling-specific and the General rules, i.e. those that apply to all sectors. Principal source of rules for Gambling marcoms is the Royal Decree of 25 October 2018 (EN key clauses, unamended) and for General rules in Belgium the ICC Advertising and Marketing Communications Code
• Advertising for the games of chance and bets operated by a class A+, B+ or F1+ license holders via information society tools may not divulge the identity, address and other data pertaining to players and their families, including their photograph or other visual recording (Art. 4, Oct 2018 Decree)
• Direct Mail in most countries, Belgium included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications; see General tab below as the rule applies to all sectors, Gambling included
• If a marketing communication constitutes an ‘Invitation to Purchase’, Book VI of the Code of Economic Law (Art. 99) applies FR - NL / EN key provisions. More under the General tab below

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SECTION C: DIRECT POSTAL MAIL

Privacy issues should be reviewed with specialist advisors

• Direct Mail in most countries, Belgium included, is based on opt-out consent (Code of Economic Law Book VI (EN), art. 110), i.e. permissible unless the recipient objects 
• Addressed mail cannot be sent to those registered to the Robinson list, Belgium’s version now managed by BAM, the Belgian Association of Marketing
• The rules set out in our earlier content section B apply to commercial communications in direct postal mail, except those rules identifying broadcast or digital channels; the principal set of regulations is the ICC Advertising and Marketing Communications Code (EN)
•  Other content rules include statutory information from the Code of Economic Law Book VI (EN), the large part of which applies. In this DM context, the commercial communication often constitutes an  'invitation to purchase' Definition Where goods or services are offered with reference to their characteristics and price in such manner appropriate to the communication medium used that an average consumer can conclude the transaction in which case other information, set out below, must be provided (ELC Book VI, art.99)
• The data processing ‘behind’ DM, if it involves personal data Definition ‘Personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person Art. 4 (1) GDPR may be subject to the GDPR
• 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. These provisions include a right to object ‘at any time’ and the information that must be provided to ‘data subjects’.

APPLICABLE LEGISLATION AND SELF-REGULATION

1. Self-regulation

• Chapter C Direct Marketing from the ICC Advertising and Marketing Communications Code; the rules shown below are applicable to direct postal mail
• Opt-out Register: Robinson List / Mail Preference Service (MPS) applicable only to B2C; operated by BAM; not binding 

2. Legislation

• Code of Economic Law Book VI; transposes the UCPD 2005/29/EC
• The General Data Protection Regulation 2016/679 (GDPR) on personal data processing applies across Member States
• The Law of 30 July 2018 (FR) on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data

1.1. KEY SELF-REGULATORY PROVISIONS

Chapter C Direct Marketing and Digital Marketing Communications ICC Code. The full chapter is extracted from the ICC Code here

Article 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
• 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

Article 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

Article C8.  Respecting consumer wishes

• Marketers should respect a consumer’s wish not to receive direct marketing communications by e.g. signing on to a preference system or utilizing another system, such as mailbox stickers. Marketers who are communicating with consumers internationally should, where possible avail themselves of the appropriate preference service in the markets to which they are addressing their communications and respect consumers’ wishes not to receive such communications (see also General Provisions, article 19, data protection and privacy)

SECTION C: DIRECT POSTAL MAIL

Applicable Self-regulation and legislation 

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• 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

Sponsorship parameters for holders of Class A+ and B+ licenses, following the annulments to the 2018 Decree by the Belgian State Council referenced in earlier sections, is not clear. Seek specialist advice 

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STANDARD RULES 

• Class A+ or B+ licence holders (A+ licence for online casinos. B+ licence for online gaming arcades) may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree)
• Holders of a supplementary class F1+ licence (Online bets, as defined here) may under no circumstances advertise themselves or the games of chance or betting products that they offer on the players’ equipment or sporting equipment of under-age sports teams
• Advertising for bets operated via Information Society tools by Class F1 + license holders may not: Be run in places predominantly populated by minors, or in health establishments; Art. 3, S2.5, Oct 2018 Decree)
• For related promotional material, 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 is the Royal Decree of 25 October 2018 (EN key clauses, unamended) and for General rules in Belgium the ICC Advertising and Marketing Communications Code, Chapter B of which covers sponsorship rules

COMMISSION RECOMMENDATION 2014/478/EU

1. 46. Member States should ensure that sponsorship by operators is transparent and that the operator is clearly identifiable as the sponsoring party.
2. 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

ICC SPONSORSHIP RULES 

• General sponsorship rules, i.e. those that apply to all sectors Gambling included, can be found in full under the General tab below. A valuable source of rules is Sponsorship Chapter B of the ICC Advertising and Marketing Communications Code, the applicable general advertising code in Belgium

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SECTION C: EVENTS/ SPONSORSHIP

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

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• Sponsorship material associated with an event, i.e. collateral material such as leaflets, brochures etc. is subject to the General Advertising Rules (EN) from the ICC/ JEP
• The general sponsorship rules, i.e. those that cover issues of respect of the sponsored property, ambushing, data capture etc. and that apply to all product categories are from the code linked above; clauses follow. For scope, definitions etc., see the linked code, chapter B

 B1  PRINCIPLES GOVERNING SPONSORSHIP

• All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
• Sponsorship should be recognisable as such
• The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
• There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

 B2  AUTONOMY AND SELF-DETERMINATION

• Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfils the obligations set out in the sponsorship agreement

 B3   IMITATION AND CONFUSION

• Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

 B4   'AMBUSHING' OF SPONSORED PROPERTIES

• No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage. The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public

 B5  RESPECT FOR THE SPONSORSHIP PROPERTY AND THE SPONSOR

• Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
• The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them

 B6   THE SPONSORSHIP AUDIENCE

• The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
• This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

 B7  DATA CAPTURE/ DATA SHARING

• If personal data is used in connection with sponsorship, the provisions of article 19 are applicable

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

• All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
• Sponsorship should be recognisable as such
• The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
• There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

B2: Autonomy and self-determination

• Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfills the obligations set out in the sponsorship agreement

B3: Imitation and confusion

• Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

SECTION C: SALES PROMOTIONS

This website was created to set out the rules for international marketing communications and as such does not claim authority on the presentation of Sales Promotion (SP) rules, especially those from retail legislation. When we find relevant provisions in the course of what is extensive research, we will include them in this section

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The annulments to the Royal Decree of 25 October 2018 as a result of Belgian State Council decisions in February 2020 included the requirement that the marketing of bonuses was no longer permitted to online gambling and betting operators, but confined, under strict conditions, to bricks and mortar establishments . See our earlier Section A for details

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• Class A+ or B+ licence holders (A+ licence for online casinos. B+ licence for online gaming arcades) may only promote the games of chance that they offer via Information Society tools on the website on which the operation of these games is authorised or via personalised advertising within the meaning of Book VI or Book XII of the Code of Economic Law (Art. 1 Oct 2018 Decree).
• Advertising for bets operated via Information Society tools by Class F1 + license holders (licence for online bets) may not: Be broadcast via advertising platforms or media known for being mainly targeted at minors (Art. 3, S2.3, Oct 2018 Decree)
• Advertising for the games of chance and bets operated by class A +, B + or F1 + license holders via information society tools may not: 1. Offer game credits or bonuses of any kind, except on their own website; 2. Incite people to play by promising a new contribution or the reimbursement of the bet in the event of a loss.
• SP marketing communication is subject to the Content rules set out in our earlier Content Section B; principal source of rules is the Royal Decree of 25 October 2018 (EN key clauses, unamended) and for General rules in Belgium the ICC Advertising and Marketing Communications Code

• These are set out in full under the General tab below. The following points are a snapshot of the principal sources of rules
• The applicable general advertising and marketing communications code in Belgium is the (2018) ICC Code, Chapter A of which covers Sales Promotions and extracts from which are below under the General tab
• Book VI of the Code of Economic Law (CEL) FR - NL / EN (key provisions), Article 100 transposing the blacklist from the Unfair Commercial Practices Directive 2005/29/EC, carries  a number of ‘promotional pricing’ rules set out in full below under the General tab. Key extracts are:

• 16. Claiming that products are able to facilitate winning in games of chance
• 19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
• 20. Describing a product as "gratis", "free", "without charge" or similar if the consumer has to pay anything other than the unavoidable cost of responding to the offer and collecting or paying for delivery of the item

From Article 103, CEL:

• 8. Creating the false impression that the consumer has already won, or will win, whether or not by accomplishing a formality, a prize or other equivalent benefit, - when in fact either there is no prize or other equivalent benefit, - or accomplishing any formality in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

From Chapter IV of Book XII of the Economic Law Code (EN) Book XII implements the E-Commerce Directive 2000/31/EC. From article 12:

• 3. Promotional offers, such as announcements of price reductions and related offers must be clearly identifiable as such and the conditions to be able to take advantage of these offers shall be easily accessible and presented clearly and unambiguously
• 4. Promotional competitions or games must be clearly identifiable as such, and their entry conditions must be easily accessible and be presented clearly and unambiguously

SECTION C: SALES PROMOTIONS

CONTEXT

As this website was created to provide international rules on marketing communications, we do not claim authority on specific national Sales Promotions (SP) legislation, especially retail legislation. However, when we find relevant rules in the course of what is extensive research, we will include them in this section. We check, for example, the national Self-Regulatory Codes and Consumer Protection legislation for anything that impacts SP, and we include below the general (i.e. non sector-specific) rules from the International Chamber of Commerce (ICC) which provide at least a solid start for SP rules internationally. Promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors

SELF-REGULATION

From the ICC Advertising and Marketing Communications Code (EN), Chapter A

Extracts from the code:

A2 Terms of the offer 

• Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations
• Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price of the main product

 A3 Presentation

• A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation
• Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code

A4 Administration of promotions 

• Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers' reasonable expectations

In particular:

• The availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. If delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made
• Defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request
• Complaints should be efficiently and properly handled

A5 Safety and suitability

• Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
• Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children

A6 Presentation to consumers

• Complex rules should be avoided
• Rules should be drawn up in language that consumers can easily understand
• The chances of winning prizes should not be overstated

INFORMATION REQUIREMENTS

• Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase

Information should include, where relevant:

• clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
• main characteristics of the promotional items offered
• any time limit on taking advantage of the promotional offer
• any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. In the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
• the value of any voucher or stamp offered where a monetary alternative is available
• any expenditure involved, including costs of shipping and handling and terms of payment
• the full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)
• Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause

Information in prize promotions 

Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:

• any rules governing eligibility to participate in the prize promotion
• any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
• any restriction on the number of entries
• the number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
• in the case of a skill contest, the nature of the contest and the criteria for judging the entries
• the selection procedure for the award of prizes
• the closing date of the competition
• when and how the results will be made available
• whether the consumer may be liable to pay tax as a result of winning a prize
• the time period during which prizes may be collected
• where a jury is involved, the composition of the jury
• any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used

SECTION C: SALES PROMOTIONS

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B.

ICC Advertising and Marketing Communications Code (EN), Chapter A Sales Promotion, Chapter C Direct Marketing

For promotions and contests on social media, refer to Own Websites channel; SNS

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

Directive 98/6/EC on the Prices of Products offered to Consumers

ICC Code Chapter A Sales Promotion 

A1: Principles governing sales promotions

• All sales promotions should deal fairly and honourably with consumers
• All sales promotions should be so designed and conducted as to meet reasonable consumer expectation associated with the advertising or promotion thereof
• The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient
• The terms and conduct of all sales promotions should be transparent to all participants
• All sales promotions should be framed in a way that is fair to competitors and other traders in the market
• No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute